Counterterrorism

Consolidating the Terrorist Watchlisting Bureaucracy

By Walter Haydock
Wednesday, June 14, 2017, 10:33 AM

President Donald Trump and his advisors have demonstrated an intense focus on “protecting the nation from foreign terrorist entry.” Although much public and media attention has justifiably centered on the travel restrictions in the relevant executive orders, the orders’ additional requirements for a review of government counterterrorism screening procedures are broadly justified. In one of his less controversial moves, the President also directed the formulation of a comprehensive plan for reorganizing the executive branch. This move requires the Director of the Office of Management and Budget (OMB) to develop a proposal to “improve the efficiency, effectiveness, and accountability of [government] agencies,” including “recommendations to eliminate unnecessary agencies, components of agencies, and agency programs, and to merge functions.” I have a recommendation that might accomplish both of the President’s goals: he should consolidate the Terrorist Screening Center (TSC) and the National Targeting Center (NTC).

The TSC is a bureaucratically homeless “multi-agency center” administered by the Federal Bureau of Investigation (FBI). Folding the center’s functions into the NTC—which is subordinate to a Department of Homeland Security (DHS) component, Customs and Border Protection (CBP)—would have several benefits. First and most important, doing so would reduce the chance of human error, bureaucratic inertia, or technical problems inhibiting the effective screening and interdiction of known or suspected terrorists. Second, it would expedite redress procedures for those who feel they have been incorrectly identified as national security threats. Finally, it would save money by making redundant a number of civilian employee and contractor positions while obviating the need for maintaining two secure facilities and their accompanying infrastructures. Merging the organizations is politically feasible because of the lack of statutory authorization for the TSC or any major constituency that might oppose its consolidation. Although explicit Congressional authorization for this consolidation would be the most desirable outcome, the President currently has the authority to act unilaterally, and could score a relatively cheap victory by doing so.

 

Improving Counterterrorism Screening by Skipping Steps

Although the United States has made great strides since the time of the September 11, 2001 attacks, when a dozen overlapping and incompatible terrorist watchlists were in use, significant room for improvement remains. The federal government still uses a relatively convoluted process to identify and screen for hostile actors seeking to enter the country. Consolidating watchlisting and screening functions in the DHS is a logical move that will remove unnecessary steps in the process. Indeed, the Government Accountability Office, a non-partisan auditing arm of the legislative branch, recommended the consolidation of watchlisting functions under the DHS in 2003. Furthermore, screening travelers for terrorist ties is a natural extension of the Department’s core border security mission, while it is a distraction from the FBI’s traditional focus on criminal and national security investigations. Relieving the Bureau of this extraneous task might also ameliorate the consequences of the FBI’s vague mission, itself partly the result of that organization’s lack of a legislative charter.

  • The Current Terrorist Watchlisting Process

The TSC’s primary task is to manage the sensitive but unclassified Terrorist Screening Database (TSDB), commonly known as the “terrorist watchlist.” Shortly after then-President George W. Bush’s issuance of Homeland Security Presidential Directive-6 (HSPD-6) in 2003, the Secretaries of State and Homeland Security, the Attorney General, and (what was then) the Director of Central Intelligence signed a separate memorandum of understanding creating the TSC. Most importantly, the new center’s charter required it to “consolidate the [g]overnment’s approach to terrorism screening.” Its current mission statement also includes ensuring “the timely dissemination of terrorist identity information” to federal, state, and local screening partners.

The TSC accomplishes these tasks by processing “nominations” to the TSDB from the U.S. Intelligence Community (IC); federal, state, and local law enforcement organizations; and foreign partners under agreements negotiated pursuant to HSPD-6. All federal agencies send nominations of international terrorist suspects to the National Counterterrorism Center (NCTC), for inclusion in its classified Terrorism Identities Datamart Environment (TIDE). The NCTC then provides the unclassified portions of some of these entries to the TSC. The FBI nominates purely domestic terrorist suspects directly, using its Terrorist Review and Examination Unit. Once the TSC reviews and approves these nominations, its staff then exports appropriate parts of the TSDB for use by the center’s screening partners. Each of these consumers receives different data, tailored to its legal authorities and information technology architecture.

Current Terrorist Watchlisting Process*

Page 1 of NTC TSC Graphic 1 (1)
 

In terms of personnel, the TSC is something of a Frankenstein’s monster, with government employees from the Departments of Justice, State, Defense, Homeland Security, and at least in the past, the United States Postal Service. Contractors, however, comprise a large percentage of those working at the center; at least at one point representing the majority of its workforce. A solicitation to hire more than 100 contract employees in early 2014 suggests that this trend has continued. Although paying private sector firms to conduct national security tasks can be appropriate and economical in the case of certain specialized skills, I view the relatively high proportion of contractors at the TSC as an indication of the FBI’s disinterest in the center’s mission. Rather than assigning career agents and analysts there as part of their professional trajectories, the Bureau has chosen to pay outsiders to do much of the job.

  • Fractured Streams of Data

Watchlisting-relevant data follow a tortuous path from intelligence collectors through a series of bureaucracies until finally reaching their end-users. Reorganizing the current model and putting the DHS in the lead would eliminate some of these unnecessary steps.

The DHS in general and CBP in particular have historically been the source of the greatest volume of U.S. government inquiries to the TSC. Combined with the fact that CBP processes approximately one million travelers every day, it is reasonable to deduce that it is the most frequent user of TSDB-derived information, although comprehensive usage statistics are not publicly available. The TSC provides the relevant information to the DHS through its Watchlist Service (WLS) system, one “stream” of data that subsequently breaks into additional “tributaries” which feed into the Department’s various components. Although these divergent dissemination systems exist because of the differing legal authorities of each DHS component and thus would need to persist in some form, consolidating terrorist watchlisting functions at CBP would reduce inter-Departmental friction and render systems such as the WLS unnecessary.

Further downstream, the flow of data bifurcates again; CBP personnel actually access TSDB records through at least two different systems. At ports of entry they primarily screen arriving travelers via the Interagency Border Inspection Service of a multi-Department system called TECS (not an acronym, but rather a legacy name carried over from what was previously the Treasury Enforcement Communications System). At certain local analytical units as well as at the NTC, however, personnel use the Automated Targeting System-Passenger to screen inbound travelers against TSDB entries and other systems. CBP ownership of the terrorist watchlist would make unification of this two-track access model easier.

In addition to CBP, several other DHS components use the terrorist watchlist maintained by the TSC. The Transportation Security Administration compares TSDB data against its Secure Flight system to identify potential terrorists among prospective aircraft passengers and against its Transportation Vetting System to screen transportation and critical infrastructure workers. United States Citizenship and Immigration Services has also recently begun integrating TSDB entries into its Fraud Detection and National Security Data System via a similar mechanism. If things were not already complicated enough, the Department maintains a separate Automated Biometric Identification System (IDENT), which similarly draws from the TSDB, although does so independently of the WLS. Due to the biometric information it exchanges directly with the TSC, IDENT does so through its own unique channels.

Outside of the DHS, the Department of State (DoS) uses TSDB data to screen visa applicants with its Consular Lookout and Support System. The Department of Defense has direct TSDB access for the purpose of regulating access to military bases. The FBI’s National Crime Information Center receives an additional subset of TSDB information for its Known or Suspected Terrorist File, further disseminating it to State and local law enforcement organizations throughout the United States and allowing them to screen for potential threats. Under my proposed reorganizations, all of these organizations would still receive the same information as they do now. Although the FBI’s access to the TSDB would become an inter-departmental exercise, probably with some concomitant hurdles, the most prolific user of the database—the DHS—would “own” it.

  • The National Targeting Center

The NTC, in contrast to the TSC, has a relatively clear chain of command, comprising a subordinate organization of CBP’s Office of Field Operations. Identifying a concise, publicly available mission statement for the NTC is challenging, but it does serve as the “CBP focal point for all possible [TSDB] encounters” and analyzes every inbound “traveler’s risk before departure to identify possible matches” in the TSDB. A more appropriate name for the NTC would be the National Screening Center due to its clear focus on vetting travelers and materials entering the country. CBP’s choice of the word “targeting” is likely representative of its desire to expand its mission set and authorities.

CBP has in recent years begun more proactive analysis of incoming cargo and passengers by looking for suspicious travel patterns and screening them against additional data sets. It has also established a new Counter Network Division to develop a “comprehensive understanding of emerging threats.” Intentionally creeping into such missions is likely part of a broader effort by CBP to eventually have its intelligence office become a member (which it currently is not) of the IC through executive order or legislation. Despite some arguments to the contrary, there is no clear benefit for such a move, and it would muddy the waters with regard to congressional oversight and compliance with IC directives. The current role of the TSC, however, is well within CBP’s traditional mission and capabilities. Sating that organization’s bureaucratic hunger by giving it the responsibility of maintaining the TSDB is a potential way to attenuate inappropriate mission creep by CBP.

  • Efficiency Benefits of Consolidation

Given the convoluted structure of government counterterrorism screening efforts, eliminating the TSC and assigning its functions to the NTC would increase reaction speeds during encounters with potentially watchlisted individuals. As identified in a Department of Justice (DoJ) Inspector General report, response times in such encounters are slower than necessary due to structural reasons. Since the NTC coordinates all relevant responses for CBP, its agents call the NTC first upon encountering someone possibly listed in the TSDB. The NTC then calls the TSC to resolve the person’s identity. Although this report is over a decade old, it is highly likely that this trend continues at least to some degree, considering that both organizations have more recently touted their 24 hour, 7-day a week capability to respond to watchlist encounters and that the TSC is the ultimate authority for confirming identities in the TSDB.

Removing unnecessary steps in the exchange of TSDB information would reduce the potential for technical errors. Other government counterterrorism information sharing systems have broken down and stopped exchanging data because of seemingly innocuous events like software updates. Eliminating “intermediate” systems like the WLS would help reduce the risk of this occurring. Additionally, due to the fact that DHS is almost certainly the largest customer of TSDB-provided information, it should maintain the relevant data so that it can more rapidly make administrative and technical modifications to the system as needed.

Proposed Terrorist Watchlisting Process*

Page 1 of NTC TSC Graphic 2 (1)
 

 

Enhancing Redress Procedures and Protecting Civil Liberties

The TSC and its watchlisting procedures have drawn considerable scrutiny from privacy and civil liberties advocates, which is generally understandable given the necessarily secretive nature of its work and the potential consequences of its decisions. Thankfully, consolidating TSC functions at the NTC would strengthen civil liberties protections and expedite requests for redress by those who believe the government has incorrectly identified them as potential terrorists. For example, removing steps from the process for reacting to potential encounters with watchlisted individuals would in itself reduce screening times, helping to prevent the unnecessary delay of innocent travelers.

As with encounter response procedures, requests for redress also require an unnecessary step that TSC/NTC consolidation would eliminate. Based on the requirements of the Intelligence Reform and Terrorism Prevention Act of 2004 and the Implementing Recommendations of the 9/11 Commission Act of 2007, the DHS established the Traveler Redress Inquiry Program (TRIP) to provide a single point of contact for travelers inquiring about and appealing their possible U.S. government watchlist status. Although the DHS receives these redress requests, it forwards the details of cases to the TSC Redress Office, which then contacts the nominating agency. Regardless of whether the person in question is legitimately watchlisted in the TSDB, should be removed, or is simply unfortunate enough to have the same name as a suspected terrorist, the TSC and TRIP conduct significant inter-Departmental coordination. By knocking down a bureaucratic wall between the two organizations and merging them under the NTC, those seeking redress would be able to achieve an appropriate resolution more quickly.

 

Fiscal Benefits and Political Considerations

Several commentators have identified a variety of obstacles that this (or any President) would face in seeking to eliminate current executive branch organizations such as the TSC, most notably Congressional intransigence. One astute observer accurately remarked that “much of the incoherence of the federal government is written into law” and is thus immutable by Presidential decree. The case of the TSC, however, is a rare exception, as the organization lacks any legislative charter. This fact makes it a relatively easy target for dismemberment. Even better, the center does not appear to be a “zombie agency,” one for which Congress has appropriated funds but not passed any up-to-date authorizing legislation.

During its early years, the TSC itself did not receive any appropriations. The center rather drew more than $27 million from the DoJ, DoS, DHS, and NCTC, at the direction of the OMB. A review of the 2016 Consolidated Appropriations Act also reveals no mention of the TSC, although a reference to it may exist in the classified schedule of the bill. With the probable lack of a Congressional mandate to fund the TSC, the OMB might be able to reprogram some of the DHS contribution to the center’s budget to the NTC in order to support the latter’s increased responsibilities in the watchlisting process. Furthermore, I imagine that the other federal organizations would be happy to reclaim their portions of the TSC budget in the absence of an OMB mandate. The only downside for them would be the lost opportunity to use the demands of funding the center as a justification to ask Congress for additional appropriations.

For the aforementioned reasons, President Trump could immediately and unilaterally enact my proposal by executive order. Although this would facilitate some of the process efficiencies that I have identified, garnering legislative support would allow for the realization of non-trivial savings to the American taxpayer. Congress removed the President’s ability to decline to expend appropriated funds through the Congressional Budget and Impoundment Control Act of 1974, and thus a thrifty-minded President could not simply return to the Treasury any leftover money that might result. The House of Representatives and Senate would in fact have to agree upon a reduced level of appropriations before he could do so.

In today’s strange political landscape, such an action might in fact garner substantial support from a variety of parties. President Trump’s Administration is reportedly considering paring back the size of the office in which the NCTC resides and has proposed reducing the State Department budget by nearly a third. Suggesting minor additional cuts to these organizations as part of the elimination of the TSC—which would then no longer require funding from them—would be consistent with the President’s rhetoric. Fiscal conservatives in Congress and in the Administration such as OMB Director Mick Mulvaney would also likely applaud a legislative move to save money in this manner. National security hawks would similarly find much to like in more efficient counterterrorism screening procedures. Finally, civil libertarians throughout the political spectrum could claim a victory in the streamlining of redress procedures that my proposal would facilitate.

Lacking any clear institutional prerogatives at stake, with the potential exception of the FBI, other executive branch agencies would likely acquiesce with this reorganization. As highlighted by its personnel policies at the TSC, even the Bureau does not appear enamored of the center and might go along with such a plan as a way to discard a burdensome distraction. The company or companies providing contractors to support the TSC might protest or petition their elected representatives, but the President has shown a willingness to berate major defense contractors publicly, and would likely prevail in any such confrontation. CBP has demonstrated a strong desire to expand its authorities, and would probably welcome the chance to assume the duties of maintaining the TSDB. Given the relatively weak bureaucratic and political forces that might rally to defend the TSC in the face of a proposed consolidation, folding its mission set into the NTC is one of the few government reorganization initiatives that appear politically feasible at present.

 

Conclusion

Ironically, and in keeping with the President’s management style, the White House has created two potentially competing reorganization efforts nearly simultaneously: the OMB’s more formal one pursuant to executive order and the Office of American Innovation, a so-called “SWAT team” under the leadership of Senior Advisor Jared Kushner. What these two initiatives will be able to accomplish remains to be seen, but I offer up this proposal to either. Consolidating the functions of the TSC into the NTC is only one of many potential moves that the government could take to function more effectively, but it is one of the more politically expedient options available. Merging the two organizations would improve the nation’s security, save its taxpayers millions of dollars, and allow for the more rapid redress of errors made in the terrorist watchlisting process. For an Administration in need of easy wins, this would be an excellent place to start.

 

* These graphics are not meant to be comprehensive representations; they only highlight the relevant functions of the organizations in question.

The views expressed in this article are those of the author and do not reflect the official policy or position of the United States Government.