One Unelected Official Can Put Entire 'Categories' of People on US No-Fly Lists

The Intercept's latest report, based on an unclassified but highly sensitive government document, tells a troubling tale of our national security state. Ryan Devereaux and Jeremy Scahill brought to light a "secret government rulebook" used for determining which names get added to expansive US terror watchlists.

The 166-page leaked document meanders from the paranoid to the absurd. From it, we've learned that neither "concrete facts" nor "irrefutable evidence" are required to add a name to a terror list. Indeed, one needn't even be alive. "The rules permit the deceased spouses of suspected terrorists to be placed onto the list after they have died," reports The Intercept.

One detail noted by Devereaux and Scahill seems worthy of further highlighting. While the very idea of terror watchlists suggests a process of selecting individual names for monitoring, a loophole in the criteria enables "entire categories" of people to be summarily designated as terrorists. As The Intercept reports, a "'threat-based expedited upgrade' gives a single White House official the unilateral authority to elevate entire 'categories of people' whose names appear in the larger databases onto the no-fly or selectee lists." The authors rightly point out that this is nothing short of profiling.

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This particular power aligns with the sort of counterterror policies that allow for drone strikes based on "dispositions" or "signature" behaviors, or that permit entire mosques to be designated as a terror organization to enable surveillance. It's the sort of preemptive policing that prefigures certain groups as threats and, as such, is inescapably discriminatory.

Following The Intercept's report an official at the National Counterterrorism Center insisted to the Washington Post that the loophole which can elevate categories of individuals to the no-fly list was “very rarely used” and “applied to people who are already in the broader category of known or suspected terrorists.”

I submit that this is no defense at all. "Very rarely" is enough to cause concern when it is not even made explicit, as The Intercept notes, what a "category" even means to government eyes. "It is not clear, for example, whether a category might be as broad as military-age males from Yemen," the authors report. And we know all too well at this point that the categories of "already" suspected terrorists is dangerously broad — consider the NSA's targeting of prominent Muslim-Americans.

Furthermore, perhaps the most troubling detail about the categorical upgrade is who gets to determine the "very rare" occasions when it is used. This extraordinary power is not vested with elected representatives. It is not determined by committee. It falls entirely in the hands of one individual. The power is, The Intercept notes, "vested in the assistant to the president for homeland security and counterterrorism, a position formerly held by CIA Director John Brennan that does not require Senate confirmation."

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This is truly executive overreach par excellence. It is the very meaning of a state of exception — a "threat-based" scenario — in which the suspension of normal legal process and policy is normalized and inscribed into law. In this, our vaunted democracy, one unelected official has the power to instantaneously constrain the movements of an entire group of people. Whether this power is used "very rarely" or regularly is no more than a matter of incident. What matters more is that it exists at all, tucked into a secret government document.

This detail reflects the authoritarian circumstances edified as legal and permissible in the boundless War on Terror. So long as officials can appeal broadly to "threat," then democracy can collapse into dictatorship with the assumption of extraordinary powers. In this way, US counterterror policy invokes an almost medieval sort of sovereignty, in which an unelected body is able to rule over who lives and dies (with, say, drone strikes), who has the freedom to travel, and who gets marked as the "enemy." Sovereign powers are not determined by how regularly they are used. What matters is that they can be invoked and used with or without popular knowledge, let alone consent.

Follow Natasha Lennard on Twitter: @natashalennard

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