A watch list, which relies on the predictive judgments of anonymous analysts predisposed to err on the side of caution
The threats that the terrorist watch list and no-fly list pose to civil liberties -- indeed, to the very idea of citizenship -- are enormous. Watch lists are designed to circumvent the protections of due process and the separation of powers. They subvert a principle of our free society: Our rights aren't held on loan until a government official labels us suspect, at which point they are easily stripped away; our rights are ours unless and until a court concludes that we have violated the law.
This is not the case with a watch list, which relies on the predictive judgments of anonymous analysts predisposed to err on the side of caution. Their job is to stop something horrible from happening. Why would they be inclined to err the other way? Their decisions require no judicial approval, and their standard for labeling someone a suspected terrorist to be watch-listed is very low, a mere "reasonable suspicion."
As one federal judge noted in a case involving a plaintiff's challenge to being placed on the no-fly list, "an American citizen can find himself labeled a suspected terrorist because of a 'reasonable suspicion' based on a 'reasonable suspicion.' "
Some people who are tempted by watch lists but reluctant to deprive people of rights without due process propose combining them with the procedures used for search warrants or wiretaps. Why not just open up the watch list process to a judge who can assess these determinations? If it's good enough for the Fourth Amendment, isn't it good enough for the Second?
But this analogy doesn't work. The low standards and one-sided nature of warrant requests are only the first step in a longer, public, adversarial process. They satisfy public safety needs to investigate and stop suspected crimes, but this is followed by an opportunity for a trial with a higher burden of proof and a meaningful chance to confront and respond to the state's evidence.
-- Jeffrey Kahn, a law professor at Southern Methodist University, is the author of "Mrs. Shipley's Ghost: The Right to Travel and Terrorist Watchlists."