On Jan. 23, the Privacy and Civil Liberties Oversight Board (PCLOB) released its long-awaited report on the terrorist watchlists, the U.S. government’s repositories of people whom it has categorized as known or suspected terrorists. The largest of the watchlists, the Terrorist Screening Dataset (TSDS, formerly the Terrorist Screening Database, or TSDB), includes more than one million people by the Board’s latest count, including approximately 6,000 Americans. In the report, the Board — the body charged with overseeing the government’s counterterrorism activities — revealed some new information and offered several recommendations to improve the integrity of the watchlists, increase transparency, and bolster Americans’ opportunity to challenge their inclusion on the watchlists.
The terrorist watchlists have long been dogged by severe deficiencies that imperil Americans and foreigners alike — especially Muslims, people of color, and those of Middle Eastern and South Asian descent — while compromising the watchlists’ value to national security. We lodged these criticisms in a 2023 Brennan Center report, and they have been echoed by over a dozen lawmakers and the Senate’s Homeland Security and Governmental Affairs Committee.
Notably, the Board was prevented by the watch-listing agencies from disclosing information on the grounds that it was law enforcement-sensitive, although the Board had been permitted to disclose similar information previously. In light of these gaps, it is difficult to gauge whether the more detailed recommendations the Board provided to the relevant agencies and Congress in private would adequately address the range of issues identified by civil society and governmental bodies for years.
Nevertheless, we can make three broad judgments. First, while the Board’s proposals would help address some of the watch-listing regime’s serious shortfalls, they would not fully fix the watchlists’ long-standing and fundamental issues, from pervasive inaccuracies to evidence of rampant bias to inadequate processes for redress to lack of proof that the watchlists are an effective tool for keeping the country safe. Second, the Board’s report reveals information that further calls into question the efficacy and accuracy of the watchlists. And finally, in light of President Donald Trump’s termination of all of the Democratic Board members a week into his new administration, it is crucial that Congress step in to carry forward the Board’s mandate, push for additional transparency, and demand proof that the watchlists advance national security.
The Board urged that the government take several steps to ensure that the information on the watchlists is current, accurate, and reliable. The first recommendation is to assess whether two categories of information included in watchlist records — “substantive mitigating information” and a new (unspecified) kind of personally identifying data, introduced in 2023 and applied to the entire TSDS in 2024 — improve the watchlists’ accuracy and decrease the chances that someone will be misidentified as a watch-listed individual. The Board provided virtually no details about either category of information because federal agencies cited law enforcement concerns. Nonetheless, “mitigating information” likely tends to show someone does not present a threat, in contrast to “derogatory information” included in the watchlist record.
It’s hardly the first time that an oversight body has urged the government to address the watchlists’ accuracy — the inspector general for the Department of Justice found on multiple occasions that they are rife with errors.
Efforts to bolster the watchlists’ accuracy and minimize misidentifications are crucial, and including mitigating information that cuts against inclusion on the watchlists could promote greater care in the nomination process and subsequent review. The Board disclosed that roughly a third of the 268 Americans who were on the TSDS and filed redress complaints with DHS in 2022 and 2023 were removed from the watchlist. While the removals may reflect changes in the information available to the government, they may also indicate that rampant inaccuracies persist. Similarly, the Board revealed that 40 percent of people who are initially flagged as a potential match to a watchlist record turn out to be non-matches, misidentifications that could lead to detentions or searches for individuals who are misidentified while crossing a border or interacting with law enforcement during a traffic stop. The new requirements surrounding identifying data could help mitigate this issue.
However, the problem is deeper than the Board’s analysis and recommendations suggest. Lax standards virtually guarantee that many people included in the watchlists do not present a credible threat. Nominators need only think someone might meet criteria for placement, even if they probably do not, and they may rely on protected characteristics like race, ethnicity, religion, or national origin in making nominations as long as it is not the “sole” justification — a meaningless safeguard that does little to remove bias from the watch-listing process. By its terms, a nomination could be based almost exclusively on these attributes so long as it’s accompanied by at least one other factor. Indeed, the watchlists are almost entirely composed of “Muslim names,” according to the Council on American-Islamic Relations’ analysis of leaked watchlist data. And the Board did not inquire into long-standing complaints about the watchlists’ disproportionate impact on Muslim travelers and individuals engaging in First Amendment–protected activity.
These weak standards undermine both accuracy and protections against discrimination, which is why we recommended evaluating and shoring up the integrity of the watchlist nominations process.
Concerns about accuracy and overreach are bolstered by the Board’s confirmation that the government “prioritizes acquiring new terrorism information over reviewing the existing information that may no longer be accurate.” Though the government has long said it conducts comprehensive reviews of watchlist records — including annual reviews of Americans included on the watchlists — the Board’s recommendations to formalize, strengthen, and institute consistent methodologies for these processes raise questions about the robustness of the reviews thus far. For instance, the Board urged the Watchlisting Advisory Council — an interagency body that creates the standards that govern the watch-listing process — to institute protocols for the Terrorist Screening Center (TSC, which manages the TSDS) to conduct periodic review of the watchlists to ensure that records are up-to-date, accurate, and reliable, and to remove individuals whose inclusion on the watchlist is no longer warranted. The Board focused especially on Americans on the watchlists, recommending “a more proactive review” of the reliability of the underlying data justifying inclusion as well as mitigating information.
The range of possible harms to watch-listed individuals underscores the importance of regular and rigorous reviews to determine whether individuals should be removed. Because the watchlists are disseminated broadly, watch-listed individuals face a wide range of consequences beyond obstacles to air travel, like unnecessary and prolonged interactions with law enforcement and, as multiple people have alleged, having their bank and financial service accounts frozen. Our report therefore recommended establishing metrics to assess whether the TSDS is useful in the first place, a critical intervention the Board sidestepped.
The redress process for individuals who suffer invasive searches at airports or face other scrutiny that appears to be watchlist-related is woefully inadequate as well. Currently, only Americans who are on the No Fly List, a subset of the list that bars people from boarding, are provided with their status in response to a complaint; otherwise, the government does not confirm or deny whether someone is on a watchlist. The Board recommended that the government disclose Americans’ inclusion on the Selectee List — which flags people for intense scrutiny at airport security — if they have been sent to secondary screening multiple times and file a complaint with the Department of Homeland Security. Additionally, the Board suggested that the government consider allowing security-cleared counsel to have access to classified information to advocate for their clients, which provides a more meaningful avenue to those who can hire such counsel to challenge their placement on a watchlist.
While both recommendations address shortfalls of the redress system, they leave gaps in place. For one, people can file for redress when they experience a travel-related harm, but not when they experience any of the other myriad consequences watch-listed individuals face. In addition, as over a dozen senators and representatives have noted, disclosing the watchlist status only to those Americans who are on the No Fly List and who file a complaint leaves many others in the Kafkaesque predicament of having to “blindly refute the government’s allegations without knowing what they are.” Disclosing watchlist status to Americans who file a complaint after being repeatedly sent to secondary screening does provide limited additional redress, but it does not address the broader inadequacy of the redress system. It also does not afford redress to citizens of any other countries, including closely allied countries, as (now fired) Board member Travis LeBlanc suggested.
If the government chooses to keep someone on the watchlist, the lack of an appeal process means that watch-listees’ only recourse is to engage in lengthy and expensive litigation. Even when individuals prevail and are removed from the No Fly List or the TSDS, that’s no guarantee that they won’t continue facing scrutiny. They could also be added to the No Fly List again on substantially the same basis.
Finally, the report is significant because of the circumstances surrounding its release. The Board published its watchlist report a few days before most of its members were fired and the Board was effectively shut down. Even if President Trump reconstitutes the Board, its independence has already been severely undermined as termination will loom over every future member. And yet the Board’s work has never been more critical, especially in light of this administration’s executive actions related to national security which pose grave threats to Americans’ constitutional rights.
Meaningful, sweeping changes to the watch-listing system are long past due. For two decades, the terrorist watchlists have harmed many and put vulnerable communities at risk without a public demonstration that the process contributes meaningfully to national security. Especially as the administration works to flatten oversight across the executive branch, it is urgent for Congress to publish the Board’s full report (with any necessary redactions to guard highly sensitive information) and to address the watchlists’ fundamental deficiencies to curb potential abuses.