Ensnared by Error on Growing U.S. Watch List

Ensnared by Error on Growing U.S. Watch List
By MIKE McINTIRE

Rahinah Ibrahim, a Stanford University doctoral student, arrived at San Francisco International Airport with her 14-year-old daughter for a 9 a.m. flight home to Malaysia. She asked for a wheelchair, having recently had a hysterectomy.

Instead, when a ticket agent found her name on the no-fly list, Ms. Ibrahim was handcuffed, searched and jailed amid a flurry of phone calls involving the local police, the F.B.I. and the Department of Homeland Security. Two hours after her flight left, Ms. Ibrahim was released without explanation. She flew to Malaysia the next day.

But when she tried to return to the United States, she discovered that her visa had been revoked. And when she complained that she did not belong on a terrorist watch list, the government’s response came a year later in a form letter saying only that her case had been reviewed and that any changes warranted had been made.

Every year, thousands of people find themselves caught up in the government’s terrorist screening process. Some are legitimate targets of concern, others are victims of errors in judgment or simple mistaken identity.

Either way, their numbers are likely to rise as the Obama administration recalibrates the standards for identifying potential terrorists, in response to intelligence failures that let a would-be bomber fly to Detroit from Amsterdam last Christmas. On Friday, the administration altered rules for identifying which passengers flying to the United States should face extra scrutiny at the gate. And it is reviewing ways to make it easier to place suspects on the watch list.

“The entire federal government is leaning very far forward on putting people on lists,” Russell E. Travers, a deputy director of the National Counterterrorism Center, said at a recent Senate hearing. Before the attempted attack on Christmas, Mr. Travers said, “I never had anybody tell me that the list was too small.”

Now, he added, “It’s getting bigger, and it will get even bigger.”

Even as the universe of those identified as a risk expands, the decision-making involved remains so secretive that people cannot be told whether they are on the watch list, why they may be on it or even whether they have been removed. The secrecy, government officials say, keeps terrorists off balance. But civil liberties advocates say it can hide mistakes and keep people wrongly singled out from seeking redress.

Now, five years after Ms. Ibrahim’s arrest at the United Airlines ticket counter, a lawsuit she filed is chipping away at that wall of secrecy. While judges have dismissed many similar cases, a federal appeals court let hers proceed, endorsing a new legal strategy for challenging placement on the watch list. In December, a federal judge scoffed at the government’s claim for secrecy and ordered it to release files on Ms. Ibrahim’s detention.

Ms. Ibrahim’s case has also raised legal questions about detaining people whose names appear on the no-fly list, and it casts light on the role of private contractors in deciding whether someone should be held. The police in San Francisco said they had acted on the instructions of a contractor working for the Homeland Security Department.

The government is fighting back, and there is no guarantee that Ms. Ibrahim, a 44-year-old mother of four, will ever learn more about what happened. However, an examination of her case, along with documents from other lawsuits, government audits and official testimony, offers some broad hints about the murky system.

The watch list is actually a succession of lists, beginning with the Terrorist Identities Datamart Environment, or TIDE, a centralized database of potential suspects. Mr. Travers said that about 10,000 names come in daily through intelligence reports, but that a large percentage are dismissed because they are based on “some combination of circular reporting, poison pens, mistaken identities, lies and so forth.”

Analysts at the counterterrorism center then work with the Terrorist Screening Center of the F.B.I. to add names to what is called the consolidated watch list, which may have any number of consequences for those on it, like questioning by the police during a traffic stop or additional screening crossing the border. That list, in turn, has various subsets, including the no-fly list and the selectee list, which requires passengers to undergo extra screening.

The consolidated list has the names of more than 400,000 people, about 97 percent of them foreigners, while the no-fly and selectee lists have about 6,000 and 20,000, respectively.

The standards for adding names to the lists have gone through a cycle of tightening, then relaxing. After the Sept. 11 attacks, hundreds of names were added with few guidelines, eventually leading to complaints that too many innocent travelers were being stopped. Two years ago, the government developed a reasonable suspicion standard and secret protocols for applying it; their last major revision was outlined in a 72-page memorandum in February 2009 that clarified the “minimum substantive derogatory criteria.”

A federal official involved in the process said that under those rules, associating with a known or suspected terrorist was not enough to warrant being listed; there had to be evidence that the person supported terrorism. The criteria also generally require more than a single source of “derogatory information,” said the official, who requested anonymity to discuss security matters.

A task force formed after the Christmas Day episode is considering changes to the process, including making it easier to label suspects extremists and giving greater weight to credible “single-source walk-ins,” the official said. The suspect in the attempted bombing, Umar Farouk Abdulmutallab, was known to American intelligence analysts because his father, a banker in Nigeria, had reported him to the authorities, but he had not been placed on the watch list.

Putting United States citizens on the watch list requires more than just a single tip, although one tip could prompt an investigation that eventually leads to placement on the list. Local police officers are encouraged to file “suspicious activity reports” with the F.B.I. or the Homeland Security Department, which finances about 70 intergovernmental intelligence cooperatives nationwide.

While federal policies prohibit profiling, a wide range of innocent activities can be deemed suspicious. Guidelines distributed by several cooperatives advise landlords to be alert for tenants who prefer ground-floor apartments and have little furniture. Among the warning signs listed by one in Ohio are “immersion in a purely Muslim environment” and the “study of technical subjects” like engineering.

By such standards, Erich Scherfen could look suspicious. A veteran of the Persian Gulf war and a commercial pilot from Pennsylvania, Mr. Scherfen converted to Islam and married a Pakistani-born woman, Rubina Tureen, who runs a small business selling religious books. They have taken part in Islamic conferences and interfaith seminars.

In May 2006, a co-worker told the state police that Mr. Scherfen had retrofitted the family car to carry bombs, court records show. (He said he had simply removed a broken seat from his old Mazda.) Not long after, Mr. Scherfen and Ms. Tureen began being detained at airports, jeopardizing his job.

The couple filed a lawsuit, and his job was saved after a judge was given secret evidence that apparently indicated that Mr. Scherfen had been taken off the selectee list.

“I think some ill-informed people were putting the dots together and came to faulty conclusions,” Ms. Tureen said.

Their lawsuit cited rulings in Ms. Ibrahim’s case as precedents.

A Muslim who came to the United States to study civil engineering, Ms. Ibrahim impressed colleagues at Stanford. “Of all the people you could think of who might be on a list of terrorism suspects, she would be pretty close to the bottom,” said Raymond Levitt, one of her faculty advisers.

The judge presiding over her lawsuit appeared skeptical, too.

“It looks like to me it was a monumental mistake, and they identified the wrong person,” the judge, William H. Alsup of Federal District Court in San Francisco, said at a hearing in December. “I’m just guessing.”

The authorities will not say why they singled out Ms. Ibrahim. A week before her scheduled flight to Malaysia in January 2005, she was visited by two F.B.I. agents, said her lawyer, Marwa Elzankaly.

“They actually claimed they did not know why they were there to interview her,” Ms. Elzankaly said, “and basically just asked her a few background questions about herself, her family, her line of work, her travel plans and her education.”

When the airport ticket agent discovered her name on the no-fly list, he called the San Francisco police, who contacted the Transportation Security Administration in Washington. There, they reached a watch officer working for U.S. Investigations Services, one of several private contractors the agency has hired for its 24-hour operations center.

The contractors’ duties “include receiving telephone inquiries and providing direction as to how to handle passengers,” said Kristin Lee, an agency spokeswoman.

The police incident report says the watch officer told the police to “deny the flight to Ibrahim, contact the F.B.I. and detain her for further questioning.” She was driven to a police substation, where she was searched and placed in a holding cell. Eventually, an F.B.I. agent told the police to let her go, adding that she was being moved to the selectee list and could fly home.

Outraged, she decided to sue for wrongful arrest and to find out why she was on the list. But the law creating the T.S.A. made it virtually impossible to mount a legal challenge against it.

Instead, Ms. Ibrahim’s lawsuit focused on the F.B.I.’s Terrorist Screening Center, which does not have the same legal protections. After much of her case was thrown out, a divided United States Court of Appeals for the Ninth Circuit reinstated it.

“If your name or my name or anybody’s name in this courtroom were put on that list, we would suffer grievously,” the chief judge, Alex Kozinski, said at a hearing in April 2008. “And we want to have some way of going to our government and possibly to our courts and saying, ‘Look, I shouldn’t be on that list.’ ”

Another issue raised by Ms. Ibrahim’s case is whether inclusion on the no-fly list is sufficient grounds for arrest. At a hearing last December, government lawyers agreed that it was not, although the courts generally allow brief detentions for investigative purposes.

The police, as part of their defense, offered to explain why they detained Ms. Ibrahim, but the F.B.I. and Department of Homeland Security refuse to allow it.

Meanwhile, Ms. Ibrahim earned her doctorate from Stanford but has been unable to return to the United States to participate in the lawsuit. Her lawyers said in a court filing that when she applied for a new visa last September, American Embassy officials in Kuala Lumpur questioned her about the suit, asking what it would take to settle it.

Last month, Ms. Ibrahim accepted a $225,000 settlement from the San Francisco police and U.S. Investigations Services. But she is pursuing her claims against the federal government. None of the defendants’ lawyers would comment for this article.

At the December hearing, Judge Alsup showed his displeasure at the government, telling Justice Department lawyers that they were abusing the secrecy privilege.

“You’re holding onto this five-year-old information like, you know, like another 9/11 is going to happen if you somehow release it,” the judge said, according to a transcript. “That’s just baloney.”