Designating the Dangerous: from Blacklists to Watch Lists

• Jurisdiction: United States,Federal
• Citation: Vol. 30 No. 01
• Publication year: 2006

SEATTLE UNIVERSITY LAW REVIEWVolume 30, No. 1FALL 2006

Designating the Dangerous: From Blacklists to Watch Lists

Daniel J. Steinbock(fn*)

I. Introduction

Ring Lardner, Jr. was one of the Hollywood Ten, a group of screenwriters cited for contempt of Congress in 1947 for refusing to answer the question: "Are you now or have you ever been a member of the Communist Party?"(fn1) He eventually served nine months in federal prison for contempt of Congress, but as soon as he refused to testify, he was placed on a blacklist-the widespread refusal by film, radio, and television producers to hire real or suspected Communists. Blacklisting, along with the dismissals or denial of employment as a result of "loyalty" and "security" investigations, truncated or distorted thousands of careers and was an integral part of the late 1940s and 1950s period of national suspicion that is now often referred to as the "McCarthy era."(fn2) Lardner himself suffered professionally and financially for years, but he gradually recovered his career, first by writing under pseudonyms, and then, finally, in his own right. His refusal to "name names" ultimately led to his recognition by some as a hero of his time. By then he was often asked, "Can it happen again?" "Yes," he replied, "but not in the same way."(fn3)

We are once again in a period in which potential betrayers are believed to lurk in American society. Prevention of further attacks is one of the pillars of the post-September 11 national strategy,(fn4) prompting measures to identify and incapacitate possible terrorists before they act. Criminal prosecution, of course, is one form of preventive incapacitation but is now generally deemed insufficient-both because of its high standard of proof and because it fails to deter people who are prepared to die in a terrorist attack.(fn5) Administrative actions to inhibit terrorists range from denying aliens admission to the U.S. to banning individuals from flights and detention of so-called illegal combatants.(fn6)

One of the most extensive efforts to identify the dangerous is the growing phenomenon of terrorist watch lists: the compilation of names of "known" or "suspected" terrorists that is then checked against selected individuals at specified occasions, triggering certain consequences.(fn7) Watch lists existed even before September 11 but are now being consolidated, expanded, and applied in a greater number and variety of settings. Some of the impetus lies in the fact that "[t]he names of at least three of the [September 11] hijackers were in information systems of the intelligence community and thus potentially could have been watch listed."(fn8) Interest in this technique is part of a larger effort to connect and exploit terrorism intelligence. Watch listing can now deny visas, bar access to air travel, and block employment in certain transportation sectors; additional uses are under active consideration.(fn9)

These measures can be seen as variations on the more general theme of governmental designation of the dangerous, something that occurs, implicitly at least, in a variety of legal contexts. The most obvious is the criminal process: criminal prosecution is the classic mechanism of determining dangerousness and incapacitating those who are so found.(fn10) Even at the criminal investigative phase, searches and stops and frisks are frequently predicated on dangerousness, at least of a temporary kind.(fn11) Civilly, findings of future dangerousness figure in cases involving civil commitment,(fn12) registration of sex offenders,(fn13) and the removal of criminal aliens.(fn14)

Some designations of dangerousness are preceded by adversarial process. Again, criminal prosecution provides something of a model. Flowing as it does from that epitome of due process-a criminal trial (or its waiver)(fn15)-conviction can result in an implicit finding of dangerousness, so much so that a conviction is deemed to be an adequate proxy for an individualized finding of dangerousness in areas other than incarceration.(fn16) Outside of the criminal context, civil commitment that turns on a person's dangerousness to himself or others must also be preceded by a full hearing.(fn17)

On the other hand, some decisions about dangerousness are made ex parte, with no notice to the individual until they are put into effect. The investigative stops and searches referenced above fall into this category. This has also been true for enhanced security measures taken for preventative purposes. Stops and searches of travelers, for example, have been conducted on a variety of grounds, none of which has involved any participation rights for the affected members of the public.(fn18) Watch lists fall squarely into this category of ex parte labeling, albeit one that is both more formalized and less situational. Indeed, as this Article demonstrates, watch lists represent a resurgence of ex parte labeling.

It is, therefore, time to ask if something equivalent to the blacklists of fifty years ago is happening again, and, if so, how the twenty-first century use of watch lists might or might not resemble the blacklisting of the McCarthy era. More importantly, it is worth examining how the experience of the McCarthy era might inform an evaluation of our present-day labeling of the most threatening individuals. To date, "the policy debate about the threats from terrorism and the most effective ways to counter these dangers has ignored the national experience with the cold war."(fn19) This Article aims to remedy that gap with respect to one important component of the country's current anti-terrorism strategy-watch lists-and to suggest some ways to avoid the worst excesses of the 1950s. A comparison of the two periods also serves to shed some light on the question of whether our institutions have learned from the experiences of the past in striking the balance between security and civil liberties.

Part II of this Article gives a brief and broad-brush description of the McCarthy era blacklists and loyalty-security programs. Part III then describes the operation, bases for inclusion, and uses of today's terrorist watch lists. Part IV compares the two eras' labeling mechanisms along several axes. This Article focuses especially on the issue of "false positives"-the identification of people as dangerous who in actuality are not. The task of watch listing is to find the very few real threats among the overwhelmingly innocent multitudes-the needle in the haystack, to use the familiar phrase. False positives are a concern of any adjudicatory system but have proven to be a particular problem with blacklists and watch lists.

Part V draws some lessons from the past in order to address this question of accuracy. After rejecting the idea of abandoning watch lists entirely, this Article assesses three possible reforms: narrowing the sub-stantive standard for selection; adding procedural protection, particularly some form of adversarial process; and restricting the uses of watch list results. Although these reforms are not mutually exclusive and some combination of all three could be adopted, this Article recommends that watch lists alone be used only to trigger investigation and other relatively minor impositions, along with visa and immigration admissions processing. In so doing, this Article highlights the relationship between substance, procedure, and effect in the law's designation of the allegedly dangerous.

II. McCarthy Era Blacklists and Loyalty-Security Programs

Aside perhaps from the attack on Pearl Harbor, the advent of the Cold War in the late 1940s triggered the greatest national wave of trepidation the United States had ever experienced prior to the September 11 attacks. As Morton Horwitz summarizes the period:From the time of former British Prime Minister Winston Churchill's famous 1946 warning that an iron curtain was descending across Europe, the level of postwar American anxiety had begun to soar. Within a very short time, the Soviets took control of Eastern Europe and aided the Communists in the Greek civil war. The announcement in 1949 that the Soviet Union had tested an atomic bomb, years before anyone in the West had imagined this could happen, dramatically punctured the sense of security that two oceans had for so long provided. . . . The fall of China to the Communists in 1949 and the invasion of South Korea by Communist North Korea in 1950 magnified the feeling that the world was falling to the Communists.(fn20)

These external threats were, in the view of many, accompanied by internal ones as well. Even the Association of the Bar of the City of New York, a relatively mainstream group, stated in a 1956 report:Communism is the weapon as well as the creed of the most aggressive and imperialistic of modern nations. It is a threat to the United States from the outside, intensified by the developments of modern science. Communism is also a threat to the United States from the inside because of the agents it employs to do its work here.(fn21)

Reaction took many forms, but the identification of suspected Communists and "fellow travelers" was prominent among them.(fn22) The following presents a very abridged account of the legal features and effects of blacklists and of the federal and state loyalty-security screening programs.(fn23)

A. Blacklists

Blacklisting was first triggered by a series of investigations by...