Government Watch Lists

Posted: Wed Aug 18, 2004 10:02 am

The op-ed piece below appeared in the August 17, 2004 edition of The Washington Post. It concerns the problems with the combined federal campaign watch list policy and I thought you might be interested in reading it.

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By Anthony D. Romero

Antonio Romero is what my mother calls me. Antonio Romero is also how I am known to many of my friends and family members. Unfortunately, the name Antonio Romero also appears on a U.S. Treasury Department list titled "Specially Designated Nationals and Blocked Persons." The government provides only this name, some known aliases and a date of birth for Antonio Romero. No further attempt is made at delineating one Antonio Romero from the next. A quick Internet search found no fewer than 10 of them in New York, not to mention four Anthony Romeros.

The proliferation of government watch lists is a troubling development in the war on terrorism. I recently learned more about this list because my organization, the ACLU, had signed a funding agreement with the Combined Federal Campaign in order to receive $500,000 it gathers from federal employees. The agreement required the ACLU to affirm that it would not knowingly hire individuals named on various watch lists. We believed that we were not required to affirmatively check employees against any list. But when we later were told that indeed we would have to check all current and potential employees, we withdrew from the CFC.

All Americans have an important obligation and role in this country's efforts to protect us from those who would harm us. But these lists, which are notoriously vague and riddled with errors, are not the best way to fight terrorism. Just take me as an example.

The CFC would require the ACLU -- and the more than 2,000 nonprofits that receive its funding -- to affirmatively check the names of our employees against the lists. But what do we do if there is a match? What if the ACLU had checked my name against the watch lists and found the name of Antonio Romero? If it hired the Antonio Romero targeted by the government, knowingly or not, the ACLU would open itself up to civil or criminal sanctions. So the stakes are high. To make matters more complicated, CFC recipients are not alone in this new wonderland.

Under a little-known law from 1977, the International Emergency Economic Powers Act, serious potential sanctions apply to all employers and people in the United States, not just to CFC recipients. With the expansion of terrorist watch lists since Sept. 11, the implications of this policy have grown exponentially, but the its existence and broad reach remain largely unknown. U.S. law forbids employers from hiring any individual designated on various government lists. If they hire someone from these lists unknowingly, the person or organization may be liable for civil sanctions, and if intentionally, criminal sanctions can be imposed.

The easiest method to distinguish me from the Antonio Romero on the watch list would be to compare birth dates. The Romero in question was born eight years before me. Great, problem solved -- except that under age discrimination law, employers cannot ask about my age or date of birth prior to hiring. Furthermore, not all the entries on the lists provide a date of birth or any other distinguishing information. Faced with these challenges, many employers might simply choose not to hire me.

While the ACLU has never checked any of its employees against any government watch list, nor asked job applicants for their dates of birth or national origin before hiring them -- we may not under federal law -- we find ourselves in a true Catch-22: Disregard the watch lists and thereby risk breaking the law, or comply and possibly violate employees' civil liberties.

The ACLU has challenged similar watch lists in the context of airport travel. We have litigated against "no-fly" lists on behalf of ACLU clients who do not belong on these lists but have no way to get their names off. When our clients travel, the "false positives" make their experiences at airports difficult. Imagine if these same problems extended to all people whose names appear on government watch lists and to all aspects of our lives.

As we debate the need to reorganize our intelligence system, we must have an open dialogue about what measures truly make us safer. Blacklisting innocent people from employment does not make us safer. Making lengthy and ambiguous watch lists that employers do not know about but are nevertheless liable to observe only serves to undercut public confidence in the government's efforts in the war on terrorism. The proliferation of these lists could threaten many basic rights while leaving little recourse for those affected.

We all have to shoulder our responsibility if we want to keep America safe from terrorists. But we don't want to live in a country where every company, large and small, for-profit and nonprofit, must ask every Antonio Romero, including me, to prove every day that he is not a terrorist because his name happens to appear on a list.