11/07/14 – Hugh Handeyside – The Scott Horton Show

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All right, y'all.
Welcome back to the show.
Now, I'm Scott Horton.
This is my show, Scott Horton Show.
And next guest is Hugh Handyside.
He's from the ACLU, a staff attorney there with their National Security Project.
And Matthew Harwood was good enough to give me his contact here to discuss this article that Matthew and Hina Shamsi wrote for Tom Dispatch, Uncle Sam's Databases of Suspicion, a Shadow Form of National ID.
Welcome to the show.
How are you doing, Hugh?
I'm okay.
Thanks for having me.
Very happy to have you on the show.
Appreciate it.
Very important story here.
Very complicated one, but that's all right.
I think people are into it.
So, first of all, I guess, can you just tell us what exactly is an SAR, Suspicious Activity Report?
A Suspicious Activity Report is a report that's submitted by local police or what are called fusion centers, which are groups of local law enforcement agencies working together, or even private parties, small security guards, the security at industrial plants and things like that, about what they consider to be suspicious activity, activity that's potentially related to criminal conduct or terrorism.
The problem is that the standard that the federal government has set for submitting SARs, Suspicious Activity Reports, is too low.
So, it ends up including innocent conduct, conduct that's First Amendment protected, like taking photographs or, in many cases, simply being a Muslim American or a Middle Eastern American in a public place.
Now, my friend Eric Garris, my colleague at AntiWar.com, of course, he's represented by the ACLU in their suit because they used, illegally, they used their Foreign Intelligence Surveillance Act powers against AntiWar.com.
And so, the ACLU is representing AntiWar.com in suing them.
And so, he went to a speech in San Francisco where they talked about, and I think this is referred to in this article here, they talked about they gained access somehow, I'm not sure how, to the fusion centers' kind of write-ups about all of this.
And it was basically just all quantity, not quality, type information like you'd expect.
So, if somebody gets, and I guess people are just like this, they hear someone talking in a foreign language really loud, they call 911 in a panic.
And that goes in the report.
But if that happens to the same loud-talking foreigner 10 or 15 times or whatever it is, that's it.
He goes on the terrorist list or some kind of list that this guy has some real problem just because his neighbors all watch Fox News and are terrified all day.
But he hasn't actually done anything to anybody.
And apparently they just had, in the speech, the presentation that was given, they had a million of these where you just have call after call after call all day long of if you see something completely innocuous, say something.
Exactly.
It's garbage in, garbage out.
And the way they got access to those reports was just through the Freedom of Information Act.
They submitted a request, and these fusion centers had to turn them over.
And some of those have served as the basis for our lawsuit that is currently pending in Northern California.
So, you're absolutely right about that.
It's one thing to report suspicious activity, and certainly we want people to report activity that truly is suspicious.
But we just can't have this flood of reports on innocent conduct.
And it's not without consequence.
Once these things are entered into the system, they lead to follow-up investigation by the FBI.
And they can, like you say, they can lead to watch-listing, which has a whole host of other consequences.
Well, a big part of this, right, is just no one wants to take responsibility for weeding anything out.
Let it be somebody else's job to deny that something's important.
Everybody else's job is just to pass everything they got up the chain, so it's not their fault if anything's missed.
Precisely.
And so far, the FBI's approach has been give us everything, and we'll sort through it.
But that's not practical, and it's not really consistent with our personal liberties either.
Well, now, is this different than the Talon Program or the TIPS Program, I guess it originally was called, where they wanted every UPS man and everybody who works at the grocery store to be a snitch now?
Really, it's a little bit more systematized.
I mean, there's this whole architecture that's been built up around it, but what our lawsuit challenges is the failure to institute a standard.
And we already have the standard.
That's reasonable suspicion of criminal activity.
It's a very well-known, well-understood standard that police everywhere use every day when they're determining whether or not they can stop somebody on the street and require them to answer a couple questions.
It's called a Terry stop, and it happens all the time, but only based on reasonable suspicion of criminal activity.
And we believe that an existing regulation requires them to use that for SARS as well, but they're basically ignoring that regulation, so that's what we're challenging.
All right, now, well, let's see.
I want to hear some numbers and all that, but I think I'll wait on that.
I want to ask you about the story of this guy Gil.
That's the way this article begins, is this guy who the cops, based on a mistaken tip from a neighbor, were looking for someone who was not at his house.
They came in his house, and then into the twilight zone he was pulled, I guess.
Right.
And, you know, when we think Wiley Gil is a great example of just how badly these things can go and how they can be based on, again, innocent conduct, he didn't do anything wrong.
We don't think that there really was a report of a domestic disturbance.
Oh, really?
Nonetheless, it was later found, this report, it's not clear where it came from, and it was later found to be unfounded.
So it's not clear why it would have been directed at Wiley Gil in the first place.
It was all pretty mysterious, but nonetheless they used it as a basis for searching his home, going through his home, and they approached him with guns drawn.
It was all rather terrifying to him.
And then, of course, what they found from that ended up in a suspicious activity report.
He had a website up about video games, and they found that suspicious, as though it was somehow related to flight simulators or something like that.
It's just, you know, he exemplifies how terribly awry everything can go when the police have a very low standard that they can use, and they use it aggressively.
Well, then what happened to him as a result of all this?
Well, the suspicious activity report was entered.
He's had follow-up investigative requests and activity from the FBI, from the local police.
As far as we know, the suspicious activity report is still in the system.
He's basically been profiled.
He's a convert to Islam, and he's done nothing wrong, but basically his religion and his presence in this community has been deemed suspicious.
Yeah, it's just incredible, and you've got to figure.
You know what?
I mean, I even think of this myself a little bit, that even being kind of anti-everything politically and that kind of thing, I'm still not that worried about this, because what the hell?
My last name is Horton, and so Hortons don't usually end up on no-fly lists, right?
And I think that that's probably even very subtly and silently in the back of a lot of our minds, is that this is still happening to others, even though these are our neighbors.
Our next-door neighbors, maybe, that this is happening to.
Absolutely, absolutely.
And that's a very good point, and we all should be outraged.
And I think that part of what's happened with the watch-listing regime is that, partly in response to some of the outcry about watch-listing standards, the federal government has maybe strengthened its standards slightly for U.S. citizens, but has made it a lot easier to watch-list lawful permanent residents and non-citizens inside the United States, and has basically tried to play on that very phenomenon that you're describing.
And meanwhile, you hand these guys the evidence, and they say things like, oh, what are we supposed to do, call every flight school in America and ask if there's suspicious Arabs training there?
Yeah, you're supposed to do that, FBI.
Like, they don't have the manpower for that, but they do have the manpower to spy on us all.
All right, hang tight.
We'll be back in one sec with Hugh Handyside from the ACLU.
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All right, y'all, welcome back to the show.
I'm Scott Horton.
I'm talking with Hugh Handyside from the ACLU, and we're talking about this article that they're running over there at TomDispatch.com, an electronic archipelago of domestic surveillance.
Well, that's one title, and then you know how Tom Dispatch does it.
He's got two titles for everything.
This is Uncle Sam's Databases of Suspicion, a Shadow Form of National ID.
And, you know, it seems like that's an important point to pick up on right there is that subtitle.
The National ID card, just like the TIPS program, Hugh, rejected by the American people over and over again.
But sort of like with the EU constitution or whatever, they just won't take no for an answer.
They just keep pushing it over and over until somebody finally just gives in.
Right.
Well, you know, it's consistent with this trend toward just labeling people.
You know, TSA is doing this now where either you're on a white list and you're given the expedited treatment at the airport or you're on a black list and, you know, you're subjected to additional screening.
And the idea here is flawed, but the idea is that you can decide or predict, you know, the most likely is to commit a violent act or break some law on any given day.
And that's just inconsistent with the facts.
But in the process, it labels people based on, very often, innocent conduct or race or religion.
Yeah.
Well, it seems like any terrorists who want to target major airlines, they would just go through the process of getting on the secured screening list, whatever they need to.
Another thing is the fact that you're giving people a roadmap for how to get through more easily.
Oh, yeah.
You need the less security aisle, huh?
Well, here, you just have to pay a little extra and fill out this form.
Here's how.
Exactly.
All right.
Great.
Get five box cutters on board if you want.
Crazy.
All right.
Now, so I wonder about the suits chances here.
And I guess a better way to put that would be, didn't this used to be considered unconstitutional or something like that, to put people on government lists in this way?
Well, you know, we have already challenged, we have a long-running challenge to the no-fly list.
And that's an obvious one for us to challenge because barring people from flying altogether is kind of the most severe consequence of watchlisting.
And so we started with that.
And that's been going for four years.
And we've had some very good rulings recently.
A federal judge in Oregon ruled that the process that the government has in place for contesting your placement on the no-fly list was unconstitutional.
It didn't provide people notice of their placement on the no-fly list.
It didn't give them an adequate opportunity to be heard and to submit evidence to contest that.
So we've made some real progress there.
And we're in the process of trying to get a new redress system in place.
But, you know, the other watchlists, again, it's just a matter of, you know, whether or not we can mount a challenge that can contest the consequences of those watchlists.
Well, and I guess when it comes down to it, it's not how unconstitutional they might be.
It's whether you can find just the right legal case to use to test it and all that.
But so what about lists in the past?
I mean, Woodrow Wilson had everybody on a list, right?
Did any judge ever say that, hey, at least in retrospect, you shouldn't have done that?
Well, you know, that's actually interesting is some of those measures that were in place as a result in the course of World War I were precisely what led to the creation of the American Civil Liberties Union.
So this has been an issue that we've been fighting for a very long time.
It depends.
You know, very often courts look less to the creation of a list itself, per se, and more to the consequences of having that list.
So, you know, it's sort of an academic point, but, you know, is there anything wrong with the government having lists regardless of whether or not those lists have consequences?
You know, we certainly think there are major privacy implications of these lists, you know, and then obviously to the extent there are consequences, and there are, that those can raise very serious constitutional issues.
Right.
All right.
Now, if you could please talk a little bit about the numbers of people that we're talking about.
I know that there is a new source and apparently now is in the process of being persecuted himself.
I'm sure you guys have come to his aid, the guy leaking to Scahill at the Intercept about the number of people on, it's not just the no-fly list, right?
It was another list that he was given or what?
Yeah, those disclosures basically revealed, you know, a lot of information we hadn't had before about the master watch list.
That's the kind of consolidated watch list for the government.
And the number of people as of August 2013 on the master watch list was 680,000.
And so that's, I mean, that's a huge number.
There are even more people, closer to a million, who are on a list that contains a lot of classified information that feeds into that master watch list.
So they've got a million people who are listed and 680,000 of those people are on this master watch list that gets basically distributed to a number of government agencies.
It can be accessed by law enforcement officers across the country.
You know, it's widely disseminated.
And now I wonder how much of that is blatantly political.
I know that, man, I can't remember his name.
The wife's friend wrote the book Bush's Brain about Karl Rove and ended up on the no-fly list.
But I wonder if that goes on all the time where it's people who, they're not Arab, they're not Muslim, they have no conceivable connection to any Islamic charity that the FBI might be looking at or anything, but they might have just pissed off a local state senator or something.
Well, we don't know the extent to which that happens.
We know now more about the standard that they're supposed to meet, and that's supposedly to put somebody on the no-fly list they have to represent a threat of committing a terrorist act.
And, you know, what that means, we're not clear.
And that's part of the problem.
What constitutes a threat?
What standard do you actually have to meet?
What kind of evidence do you have to have to show that?
And all of these things are very unclear.
But based on what we know just from our own clients, several of whom are still on the no-fly list, it doesn't seem that it takes very much.
It doesn't seem that they have to meet a very high threshold in order to place you on the no-fly list.
Yeah.
So far I've been lucky.
I get pulled aside, and they swear it's random.
Sometimes I don't get pulled aside, but pretty often I do.
And Lord knows the wife does, and I could see why Rove would have put her on one list or another, at least to pull her aside list.
She messed with him.
I don't know if you know Larissa Alexandrovna.
She made a real enemy out of him, but I don't know.
Why is he picking on me?
I think it would be pretty scandalous if they were using watchlisting purely as a punitive measure for exercising your First Amendment rights.
It's not inconceivable given the way that we know that they are implementing these lists and using these standards and how loosely they're interpreting them.
Right.
Well, it definitely happened to the Bush's brain author, whatever his name is.
I forget.
Molly Ivan's friend from here in Austin.
But anyway, yeah, I don't know whether, you know, because who knows?
I mean they don't ever have to really release the information unless, you know, I mean to a regular mundane like me, I just have to scratch my head and wonder whether they pulled me over for a reason or whether it's really true like they say for no reason at all.
Right.
They don't have to release it to anybody, including the person who's watchlisted, and that's what we have a major problem with.
You know, we think if you're going to do this to people, you've got to give them a chance to, you've got to give them notice, you've got to say here's what we're doing, and you have to give them a chance to correct that and get off the list and clear their names.
And that's been absent until now with respect to the no-fly list, but it's still absent with respect to other watchlists.
When you talk about this article, government placing itself at top of new air travel cast system, what's that all about?
Bureaucrats get automatic entry into that faster pathway through security?
Is that it?
They certainly do.
Members of Congress, something like 2 million DOD civilian and military personnel, you know, intelligence employees.
They don't have to pay the extra 80 bucks, in other words.
All they have to do is submit a quick application, and they get automatic pre-check.
And, you know, again, there's a logic to this, and the idea is that many of these people have undergone background checks in order to get their jobs.
Many of them are involved in protecting the country, but that doesn't mean that any of those people are less likely on any given day to be a danger.
It just means that they've passed a background check.
But we do certainly know that, you know, military personnel, they commit crimes, including crimes involving national security.
There's no good reason to think that these people should automatically be given this privilege.
So, again, it's just part of that phenomenon that government's trying to predict, and once it does that, it's going to use what we think are inappropriate criteria to do it.
And, of course, they're just making a mockery out of the idea that we're the ones who were born free and allow them to be our security service rather than our overlords like in the old world or something.
But, anyway, Hugh Handyside, great interview, great work.
Appreciate it.
ACLU.
Thanks so much.
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