The criteria to be placed on the new watchlist demands that an individual be associated with "transnational" criminal organizations, including front organizations that are actually foreign government entities. Transnational criminal organizations include not just drug cartels, crime syndicates and gangs, but also political groups such as nationalist parties and information activists. Individuals can be watchlisted when they are suspected of corruption, money laundering, computer hacking, stock market manipulation, health care fraud, even wildlife trafficking.
Government officials familiar with the new watchlist say that it will eventually include tens of thousands of Americans, reaching into more than a hundred cities across the United States.The new Transnational Organized Crime (TOC) watchlist is modeled after the Terrorist Screening Database, which was created in the wake of the September 11, 2001 attacks as a single repository of terrorist suspects. Over the years, that watchlist has grown to include 1.2 million people, among whom are roughly 6,000 Americans that the FBI associates with domestic terrorism. Like the terrorist watchlist, the new TOC watchlist authorizes agencies to collect information even when there is no evidence of a crime or intent to commit a crime. This authority circumvents criminal justice requirements for due process, equal protection under the law, and freedom of association under the Constitution.
National security officials say that though the government is still debating the full scope of the new watchlist, they are concerned that applying the terrorism standard imperils Americans' civil liberties and privacy rights."When we put Americans on that list, there damn well better be a good reason investigatively that they committed a criminal act. Otherwise, I think that's unconstitutional," says Frank Taylor, a retired Air Force Brig. General and career law enforcement professional. Taylor held senior leadership positions under both the Bush and Obama administrations, most recently as head of intelligence for the Department of Homeland Security.Newsweek's investigation into the TOC watchlist is based on an extensive review of hundreds of pages of government documents spanning a decade and interviews with more than a dozen current and former senior intelligence and national security officials. Few people know about the TOC watchlist or its expansive scope, even at some of the highest levels of the national security establishment. Half a dozen senior officials across multiple departments were unaware that a TOC watchlist existed at all until Newsweek contacted them. The FBI and Office of the Director of National Intelligence declined to answer questions about the new system.The Transnational Organized Crime (TOC) watchlist can trace its origins to a 2010 National Intelligence Estimate which concluded that TOCs were "loose, amorphous, highly adaptable" networks. They were the power players maintaining the global black market that sold drugs, provided money to terrorists, traded weapons, smuggled people across borders and bribed public officials.At the time, says Mathew Burrows, a former advisor to the National Intelligence Council who worked on the estimate, "counter-terrorism was taking all the oxygen out of the room." Officials worried that they were so narrowly focused on Foreign Terrorist Organizations, they were neglecting to equally protect against what they considered "emerging" threats. The resulting intelligence report described transnational organized crime as a trillion dollar a year underground economy that posed a threat to U.S. national security. In reaction, President Obama tasked the national security agencies to come up with a government-wide plan to fight them. The resulting National Strategy to Combat Transnational Organized Crime released in July 2011 directed the creation of a comprehensive information sharing system that could identify TOC "members and associates."
This effectively shifted TOCs from the world of law enforcement, where police investigate crimes after they occur and pursue criminals based on evidence, to counter-terrorism, where the objective is to hunt down suspects before they strike. Adopting the prevention mandate allowed tracking, surveillance and the gathering of evidence based only on associations and suspicion: standards that exceeded what the courts—and the Constitution—otherwise allowed."I thought we were making a huge mistake to not better share information," says Amy Pope, Special Assistant to President Obama for Transborder Security and the official who led the Interagency Policy Committee that devised the TOC watchlist in response to the strategy. For the next four years, law enforcement and intelligence community leaders fought over what to share, what the new standard meant and who was going be in control. On August 6, 2015, Attorney General Loretta E. Lynch signed Order No. 3548, granting the FBI's Terrorist Screening Center "the authority to manage, disseminate, perform identity verification, and encounter management functions regarding TOC Actors."TOC watchlisting quietly launched in late 2016 under a six-month pilot with 8,000 names. Most were members of the Sinaloa drug cartel, considered one of most powerful transnational criminal organizations in the world. It was headed by Joaquin "El Chapo" Guzmán, who was extradited to the United States the day before Donald Trump's inauguration. With Donald Trump's ascent to the White House, watchlisting changed. Three days into the new administration, the FBI issued a technical modification to the National Crime Information Center Operating Manual, notifying users that the "Known or Appropriately Suspected Terrorist File" was being renamed the "Known or Suspected Terrorist File." Appropriately Suspected had been added by the civil liberties-oriented Obama administration and its deletion signaled what one official labels "body language" that opened a floodgate. Weeks later, President Trump unveiled Executive Order 13773, which mandated all federal agencies to make dismantling TOCs a "high priority." Then on October 4, the president signed National Security Presidential Memorandum 7, which supplanted "transnational crime" language altogether with a new and broader focus: national security threat actors (NSTAs).NSPM-7 defined the individuals, organizations, groups and networks "assessed to be a threat to the safety, security, or national interests of the United States" to include "cyber threat actors, foreign intelligence threat actors, military threat actors, transnational criminal actors, and weapons proliferators." However, the administration stated that it envisioned "an expansion ... to also include additional threat actor categories, as appropriate." "We simply cannot keep the United States and its citizens secure with authorities drafted before smartphones and social media, as such technology has further blurred the line between the 'home game' and 'away game'," then-Acting Homeland Security Secretary Elaine Duke said. Under this mandate, the Homeland Security and Justice Departments were already broadening their surveillance of MS-13, the transnational gang that originated in Los Angeles, California, one made up of thousands of American citizens.
"I wouldn't say it was completely open season on any Hispanic American," an attorney for the Department of Homeland Security says, "but previous concerns that looking at American citizens might have run afoul of civilian liberties restrictions disappeared in the new administration." The government attorney, who requested anonymity because he is not authorized to speak on the record, says the "transnational" connection now includes merely having family in El Salvador, that individuals can be included on the new watchlist as "TOC actors" because of family connections, even if they are located in Los Angeles and have no other transnational link. In May 2019, President Trump further signed an additional Executive Order that broadened the definition of a transnational criminal from "a foreign person" to "a group of persons that includes one or more foreign persons."The Inspector General's 2018 FBI audit gives a sense of just how broad these categories became. It said the Bureau was actively working to take down "TOC networks" that engaged in "drug trafficking, money laundering, human trafficking, alien smuggling, public corruption, weapons trafficking, extortion, kidnapping, exploitation and trafficking of natural resources, theft of cultural property such as art and antiquities, and insurance and health care frauds." Last May, FBI Director Christopher Wray told Congress that TOC's are additionally "targeting stock market fraud and manipulation," engaged in "cyber-facilitated bank fraud and embezzlement" and "identity theft." The Department of Homeland Security added "document vendors, corrupt officials, [and] attorneys" to the list of "enabling networks" of transnational organizations."Insider threats" make up yet another category: leakers like Chelsea Manning and Edward Snowden, or corporate scientists and university professors researching sensitive areas like weapons or biotechnology. In February, FBI Director Wray told the House Judiciary Committee that the bureau had recently expanded initiatives "to focus on insider threats partnering with TCO [transnational criminal organization] actors."
By early 2020, the new watchlist was TOC in name only."It's an intelligence analyst's nightmare," says Nate Snyder, a former Department of Homeland Security counterterrorism official, about this loosening of definitions and conflation of terrorist and criminal threats. You wouldn't "treat this pandemic like you would a flood or a hurricane. The same thing could be said if you're taking a gang and you're now affiliating them with a terrorist organization. One is not like the other."
Today, anyone from local and tribal police to state and federal agencies, and even some allied foreign governments, can nominate people to the list.A watchlist is not a top-ten wanted list nor is it a criminal investigation case file where there is legal predicate that a person has committed a crime or is engaged in a conspiracy to do so. Neither is it merely an intelligence collection requirement. It is an "action" list, signaling to both law enforcement and intelligence agencies that individuals are of interest, in some cases merely to be watched, and in others, to be hunted down. But being on a watchlist doesn't necessarily mean a person has done anything wrong. The terrorist watchlist, for example, upon which the TOC watchlist is based, has a reasonable-suspicion standard to add people, but it also has what's called a "secret exception." In September 2019, U.S. District Judge Anthony Trenga affirmed that "an individual's placement into the [terrorist watchlist] does not require any evidence that the person engaged in criminal activity, committed a crime, or will commit a crime in the future."
The Department of Justice says that the TOC watchlist is "an actor centered database" that eliminates "intermittent and incomplete" surveillance, opening the way for "investigative opportunities" and intelligence collection. In layman's terms, watchlisting sets off a series of alarms when a person travels, banks, or posts on social media. Watchlisting can prompt government officials to confiscate cellphones and laptops, seeking out passwords, associates and travel patterns. Information collected then becomes part of a dossier of purported wrongdoing that can limit a person's ability to pass a background check and even test-drive a car. And officials can then use all of what has been collected to justify spying on a person's emails and phone calls. "Once you're on the watchlist, the government has the ability to collect tremendous amounts of information," says retired FBI Supervisory Special Agent Jeff Danik, who spent most of his 28-year career tracking terrorist activity, including several years inside the classified watchlisting hub. "This data is a bomb," he says. "You should have great respect for the damage that it can do."
While the authority to collect intelligence on foreigners is virtually unrestricted, the same is not true for "U.S. persons"—that is, American citizens and green card holders who are protected by the Constitution. While the TOC watchlist tracks members of transnational gangs and people affiliated with international crime syndicates, it also keeps tabs on Americans who, in an increasingly globalized world, are deemed transnational criminals merely because they talk to people in other countries.A senior career intelligence official told Newsweek that the Trump administration recently released classified guidance that details the protocols governing the TOC watchlist. The official says those new policies, coupled with the "one or more foreign persons" criteria, could result in tens of thousands of Americans being watchlisted—many added simply because they visit or frequent certain foreign websites and social media hubs.The Trump administration never announced the creation of the new TOC watchlist, or the fact that a new government system has been created that subjects U.S. persons to government scrutiny. Two laws, the Privacy Act of 1974 and the E-Government Act of 2002, require the federal government to notify the public of new and altered systems of records containing personal information on Americans and to assess its potential impact on civil liberties. And yet, there has been no Department of Justice disclosure of the existence of the TOC watchlist in the Federal Register, which was required "at least 30 days prior" to any system going live. Nor has a "Privacy Impact Assessment" for the TOC watchlist been published, as the law instructs. A November 2019 transparency report by the Homeland Security Civil Rights & Civil Liberties Office refers to the TOC watchlist as a "pilot" under development with no acknowledgement that it's already operational. Newsweek's calls and emails to the Justice Department's Privacy Office and FOIA requests have gone unanswered, as did messages to the government's Privacy and Civil Liberties Oversight Board, which is currently auditing the terrorist watchlist."There's an incredible amount of information the government holds and if it's not bound by these kinds of principles, it can be misused," Pope says. "I think that they're applying standards that, to me, are entirely discriminatory. And because it is the Executive Branch, they could do a lot of damage before they're stopped." Even before the new TOC watchlist was created, the terrorist "watchlisting enterprise" faced legal challenges. Critics claim that its secret quality has a direct and chilling effect on freedom of assembly, movement and even speech. A group of Muslim Americans, who sued the federal government in 2016, say that because of the watchlist, they have been handcuffed at gunpoint, detained and interrogated for hours while having their digital accounts searched.Last September, U.S. District Judge Trenga ruled that the Terrorist Screening Database violated Americans' Constitutional right to due process. Writing that watchlisting "suspected terrorists" was "based to a large extent on subjective judgments," he ordered that the government revise its policy to give people a fair chance to challenge their placement in the database and get taken out. The government has appealed that ruling.
Several former senior government officials told Newsweek that they have lost trust in the institutions they once helped lead and expressed concern that, without adequate safeguards, watchlisting could be misused to target innocent people because of politics or prejudice.Newsweek reached out to Congressional offices with direct oversight roles, all of whom declined to comment. However, congressional voices have called into question the reliability and independence of auditors in the Trump administration. The chairs of both the House Homeland Security Committee and the Committee on Government Oversight and Reform recently raised concerns that Executive Branch Inspectors General have been "failing to provide basic oversight of [the Department of Homeland Security]," one of the main agencies that contributes to and collects intelligence based on the watchlisting system. "Compiling lists of national security enemies strikes me as what Hitler did in Germany in the 1930s or what Stalin did in Russia in the '30s, '40s and '50s," says General Taylor, the former head of intelligence for the Department of Homeland Security, referring to American citizens. "That is nothing more than trying to take a sledgehammer when you need a stiletto."