A DoJ filing in an ACLU lawsuit in Oregon admits that you can be put on a no-fly list based on "predictive assessments about potential threats," as opposed to threatening or dangerous things you've actually said or done.
It's the first case in which a court is being asked to "review the basis for the government's predictive model for blacklisting people who have never even been charged, let alone convicted, of a violent crime."
The Obama administration is trying to prevent further disclosures about the program's basis for denying Americans the right to travel based on secret evidence and an opaque process. FBI counter-terrorism assistant director Michael Steinbach defended the no-fly list's dependence on security through obscurity: "If the Government were required to provide full notice of its reasons for placing an individual on the No Fly List and to turn over all evidence (both incriminating and exculpatory) supporting the No Fly determination, the No Fly redress process would place highly sensitive national security information directly in the hands of terrorist organizations and other adversaries."
Basically: Our process only works if we get to keep it secret. If our adversary understood it, it would be easy to defeat."
It's a unique view of knowledge-construction that denies the traditions of the scientific method stretching back to the Enlightenment, which holds that the only way to root out flaws in your assumptions and methodologies is adversarial peer review. It's a view that says that aviation security is unique among all technical disciplines, capable of reaching valid considerations through a process of friendly, internal review by parties who believe in its mission and all draw their paychecks from the same agency.
Documents in the Snowden leaks shed light on what the process for ending up on a secret federal blacklist looks like. The DHS uses your family's social media postings in combination with their travel patterns to assess whether you should be put on the lists. You can also be blacklisted if you are accused of a terrorist crime and then acquitted.
Marc Sageman, a former CIA counterterrorism analyst and current academic researcher of terrorism, submitted a brief for the ACLU arguing that the government's predictive model underpinning the blacklist inclusion was not responsibly rigorous.
"[T]here is no indication that the government has assessed the scientific validity and reliability of its predictive judgments or the information that leads to those judgments, nor has it used a scientifically valid model for predicting, and accounting for, the rate of error that might arise from those predictive judgments. Due to these failures alone, the government's predictive judgments cannot be considered reliable," Sageman told the court on Friday.
Without a "scientifically validated process", Sageman asserted, the government's judgements about who does and does not pose a terrorist threat to aviation "amount to little more than the 'guesses' or 'hunches' that Mr Grigg says are not sufficient to meet the criteria".
No-fly list uses 'predictive assessments' instead of hard evidence, US admits [Spencer Ackerman/The Guardian]