Understanding the No Fly and Selectee Lists, Sort of…

2009 IG Inspection Says  No Fly List Reduce Vulnerabilities, but Additional Vulnerabilities May Exist

The Inspector General of the Department of Homeland Security
this past July released a redacted report on the Role of
the No Fly and Selectee Lists in Securing Commercial Aviation

The report includes background on the Secure Flight Program
Implementation, Terrorist Screening Database, the No Fly and Selectee Lists and
other Watch Lists Derived From the Terrorist Screening Database.  The OIG in its review writes that the No Fly
and Selectee Lists reduce vulnerabilities to commercial aviation security, but that
additional vulnerabilities may exist:

“The No Fly and Selectee lists are subsets of the TSDB, the
federal government’s consolidated watch list. The name inclusion criteria for
these two lists are more narrowly focused and restrictive than the inclusion
criteria for the entire TSDB. Specifically, the No Fly and Selectee lists focus
on aviation security and concentrate on [REDACTED].
Although the No Fly and Selectee lists are largely
successful in identifying potential terrorists who could threaten commercial aviation, some
individuals not included on the lists may also present threats to aviation
security.”

Below is an excerpt
from the report on the No Fly and Selectee Lists section:
No Fly and Selectee Lists
The No Fly and Selectee lists, two TSDB derivative watch
lists, are unique among all watch lists derived from the TSDB. They are the
only derivative watch lists that have their own minimum substantive derogatory criteria
requirements. These requirements are considerably more stringent than the
TSDB’s known or reasonably suspected standard. Additionally, the No Fly and
Selectee lists have the narrowest minimum biographic inclusion criteria of all
TSDB watch lists.
Minimum Inclusion Criteria
The No Fly and Selectee inclusion criteria were initially
established in October 2004 by the Homeland Security Council. This council is a
cabinet-level body that coordinates homeland security–related activities and
promotes effective homeland security policy development and implementation. The
No Fly and Selectee Lists Implementation Guidance accompanying the
inclusion criteria was released in January 2005. When establishing the initial
criteria, responsibility for maintenance and export of the lists was
transferred to the TSC. Prior to this time, TSA maintained the No Fly and
Selectee lists. The lists were created in September 2001, before TSA was
established, when the Federal Aviation Administration received 125 names from
the FBI for inclusion on a No Fly list.
No Fly List
Criteria
The TSC updated and supplemented the implementation guidance
in July 2006. Recently, the Homeland Security Council [REDACTED] to allow for inclusion
of more individuals on the No Fly list. The TSC’s Policy Board Working Group
followed suit with new implementation guidance, all of which went into effect
in June 2008. Appendix D provides more detail on the No Fly and Selectee
List Implementation Guidance
(DS note:
guidance extensively redacted).
Two paragraphs [REDACTED]
Selectee List
Criteria
The derogatory information criteria for including an
individual on the Selectee list require that an individual who is ineligible
for inclusion on the No Fly list meet [REDACTED] the Selectee list criteria. Specifically, the Selectee list
should include any person, regardless of citizenship, who is: [REDACTED]
[REDACTED]
In applying more narrow requirements than the TSDB’s minimum
substantive derogatory criteria requirements, the No Fly and Selectee lists are
intended to prevent specific categories of terrorists from boarding commercial
aircraft or subject these terrorists to secondary screening prior to boarding,
and are not for use as law enforcement or intelligence-gathering tools. Past
and present implementation guidance emphasizes that the criteria for the No Fly
list require a [REDACTED] and that the Selectee list is not a default for those
who do not qualify for inclusion on the No Fly list.
The current minimum biographic inclusion criteria for the No
Fly and Selectee lists, which were not changed during the June 2008 policy
revisions, require a [REDACTED] for a TSDB record to export to either list. [REDACTED] Given
the restrictive derogatory and biographic criteria for inclusion on the No Fly and
Selectee lists, these lists combined comprise the smallest exported subset of the
TSDB. As of May 2008, the No Fly list contained approximately [REDACTED] records,
and the Selectee list contained approximately [REDACTED] records, collectively
comprising of the TSDB’s records. Additionally, the combined number of No Fly
and Selectee records represents approximately [REDACTED] distinct identities,
of which are U.S. citizens or lawful permanent residents.
Process for Inclusion on the No Fly and Selectee Lists
Redundancies in the process through which individuals are
added to the No Fly or Selectee list ensure that the proper individuals are
watch-listed. For international terrorists, this process starts with a federal
agency, usually a member of the U.S. Intelligence Community, nominating an
individual for inclusion in TIDE. The NCTC’s Terrorist Identities Group reviews
nominations for the reliability of derogatory information and the sufficiency
of biographic identifying information.
Nominating agencies can recommend an individual for
inclusion on specific TSDB derivative watch lists, such as the No Fly and
Selectee lists. Additionally, although the NCTC is not a nominator, its
Terrorist Identities Group analysts, after reviewing all source intelligence
information, may identify eligible individuals for watch-listing and contact
the originator of the intelligence to request that the individual be nominated
for inclusion in TIDE with specific watch list recommendations. Domestic
terrorists are nominated to the TSDB via the FBI’s Terrorist Review and
Examination Unit, by FBI case agents, and by the FBI’s Counterterrorism
Division; also, each of these can make specific watch list recommendations.
[REDACTED] the NCTC transmits to the TSC an export of
additions and modifications of biographic and biometric identifiers from TIDE, resulting
in additions, modifications, and deletions to the TSDB.  These transmissions are collectively referred
to as nominations. Analysts in the Nominations and Data Integrity Unit at the
TSC perform a comprehensive review of each nomination for inclusion eligibility
in the TSDB and for appropriateness of export to the various watch lists. As
part of this review, TSC analysts review specific recommendations for initial
No Fly or Selectee watch-listing, as well as follow-up recommendations for
changes to an individual’s No Fly or Selectee status. This review ensures that recommendations
are consistent with the biographic and derogatory inclusion criteria. Appendix
E provides a graphic representation of the No Fly and Selectee list nomination
process.
When TSC analysts recommend a change to an individual’s No
Fly or Selectee status, the nomination is forwarded to TSA subject matter
experts (SME), who are detailed to the TSC from TSA’s Office of Intelligence
and Federal Air Marshal Service (FAMS). The SMEs review the previous analyst’s
notes and all accessible derogatory information associated with the nomination.
When SMEs determine that a change to the No Fly or Selectee status is warranted,
TSA coordinates the change with the FBI’s Terrorist Review and Examination Unit
and case agents for FBI investigative subjects, or with the NCTC for
nominations from other federal agencies.
Domestic terrorism nominations go through a similar process.
TSC domestic terrorism SMEs also review nominations for TSDB inclusion
eligibility and for appropriateness to export to various watch lists, including
the No Fly and Selectee lists. The SMEs coordinate with the Terrorist Review
and Examination Unit to resolve any issues with a nomination or its
watch-listing recommendation.
Other Watch Lists Derived From the Terrorist Screening
Database
In addition to the No Fly and Selectee lists, the TSDB
exports daily to three other federal watch lists that are also used to conduct
terrorism screening. Although none of these databases has its own minimum
substantive derogatory criteria beyond the known or reasonably suspected
standard, each has minimum biographic criteria requirements and some have
additional restrictions.
The databases include: 1) U.S. Customs and Border
Protection’s TECS Database,

2) Department
of State’s Consular Lookout and Support System
|The Department
of State’s Consular Lookout and Support System (CLASS) is a name-checking
system used to screen visa applications for travel to the United States. A visa
allows a foreign national to travel to a U.S. port of entry to request
admittance into the country. Administered by the Visa Office within the
Department of State’s Bureau of Consular Affairs, CLASS is used by consular
officers abroad to screen the names of visa applicants against a number of
government watch lists, including an exported subset of the TSDB. Once a CLASS
name search identifies an individual, and that identity is verified, Department
of State consular officers make a determination of visa eligibility according
to federal law. 3) Federal Bureau of Investigation’s Violent Gang and Terrorist
Organization File
and one other
list: Additional Non-Federal Watch List Terrorist Screening Database
Exports.

The OIG report provided one recommendation to TSA:

We recommend that the Assistant Secretary, Transportation
Security Administration:
Recommendation #1: Determine whether it is
appropriate to [REDACTED] to No Fly restrictions or additional screening prior
to boarding an aircraft.
TSA Response: TSA concurred in part with this
recommendation. In its response, TSA management said the nomination criteria
for each list produced from the TSDB are developed and approved by a
multiagency working group overseen by the Homeland Security Council. Each
individual nominated to a terrorist watch list must independently meet the
nomination criteria in order to be watch-listed. [REDACTED] would require an
amendment to the nomination criteria.

[REDACTED] on the No Fly and Selectee lists, TSA said the only apparent and
effective way to ensure that these individuals are restricted from boarding an aircraft
or undergo additional screening would be to add them to the No Fly or Selectee
list. TSA management said this would [REDACTED], and raises privacy and other
concerns. [REDACTED] listed on the No Fly or Selectee list meet the criteria
for nomination to either list, these individuals will be placed on the list.

TSA management responded further that it will need to
explore this issue with other interested agencies to determine whether [REDACTED]
on the No Fly and Selectee lists to these lists is a prudent step that would
enhance security. However, given the privacy and rights issues involved in this
recommendation, TSA management said that it is highly unlikely the lists would
be [REDACTED] in this manner.

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