吃瓜大本营

This piece originally appeared at

In the movie , Hollywood depicts a future Washington, D.C., in which people are arrested by a special police force called Precrime, based on predictions that they will commit murders in the future. These predictions are not based on science, but on near-infallible psychics. Precrime asks for deference from judges, and gets it.

The film鈥檚 preventive policing model achieves a form of perfect safety, which is appealing: The number of murders goes down to zero, terrible tragedies are averted, and the federal government considers implementing Precrime nationwide. Until things go horribly wrong. Even in Hollywood, there are major issues with a crime prevention system that presumes future guilt without the ability to prove innocence.

The U.S. government鈥檚 reliance on 鈥減redictive judgments鈥� to deprive Americans of their constitutionally protected liberties is no fiction. It鈥檚 now central to the government鈥檚 defense of its no-fly list鈥攁 secretive watch list that bans people from flying to or from the United States or over American airspace鈥攊n a challengebrought by the American Civil Liberties Union.

Court filings show that the government is trying to predict whether people who have never been charged, let alone convicted, of any violent crime might nevertheless commit a violent terrorist act. Because the government predicts that our clients鈥攁ll innocent U.S. citizens鈥攎ight engage in violence at some unknown point in the future, it has grounded them indefinitely.

They are far from alone. Based on a leaked government document by The Intercept last August, there were approximately 47,000 people on the no-fly list, of whom about 800 were U.S. citizens or legal permanent residents. In all likelihood, the numbers are higher now.

The government is trying to predict whether people who have never been charged with a violent crime will commit a terrorist act.

Worse, the U.S. government launched its predictive judgment model without offering any evidence whatsoever about its accuracy, any scientific basis or methodology that might justify it, or the extent to which it results in errors. In our case, we turned to two independent experts to evaluate the government鈥檚 predictive method: Marc Sageman, a former longtime intelligence community professional and forensic psychiatrist with expertise in terrorism research, and James Austin, an expert in risk assessment in the criminal justice system. Neither found any indication that the government鈥檚 predictive model even tries to use basic scientific methods to make and test its predictions. As Sageman says, despite years of research, no one inside or outside the government has devised a model that can predict with any reliability if a person will commit an act of terrorism.

The U.S. government鈥檚 reliance on 鈥減redictive judgments鈥� to deprive Americans of their constitutionally protected liberties is no fiction. It鈥檚 now central to the government鈥檚 defense of its no-fly list.

When predictions of dangerousness are made and upheld in our courts, the government generally has to show that the particular individual has been charged with or convicted of a relevant prior crime. Even in that context, there are and their potential for arbitrary and discriminatory use. The same concerns exist in our case; our clients are all American Muslims. Applying basic scientific principles, our two experts found that the no-fly list鈥檚 rate of error is extremely high, meaning that the government is blacklisting people who will never commit an act of terrorism.

It gets worse still.

Because the government鈥檚 predictive model results in the blacklisting of people who are not terrorists, individuals on the no-fly list need a meaningful method of redress鈥攁 fair way to demonstrate their 鈥渋nnocence鈥� of crimes they will never commit. The government refuses to provide these safeguards in its current so-called system, which violates the due process guarantees of the Constitution. It refuses to tell our clients all the reasons the government has for predicting future misconduct, leaving them to guess. It won鈥檛 provide the evidence underlying those reasons, including government evidence that would undermine its predictions. And it refuses to provide a hearing for our clients to press their case to a neutral decision-maker and challenge government witnesses鈥� hearsay or biases.

Without these basic requirements of a fair process, our clients can鈥檛 meaningfully challenge the government鈥檚 predictions. For example, the only reason the government provided to one of our clients is that he traveled to a particular country in a particular year. That鈥檚 perfectly lawful conduct, no basis for predicting violence, and not enough information to challenge whatever other basis the government might have. In another case, the evidence the government is relying on鈥攂ut not producing鈥攊ncludes information from FBI agents who unlawfully detained our client in East Africa for four months, abusing him and threatening him with torture and disappearance. The government also appears to be relying on electronic surveillance, without disclosing the legal basis for the surveillance or the results.

According to the government, national security requires this secrecy, even though Congress and the courts have devised time-tested tools used every day in national security and other cases to protect the government鈥檚 secrets while providing individuals meaningful ways to challenge government deprivations of liberties. We have asked the court in our clients鈥� case to strike down the government鈥檚 current redress process as unconstitutional.

Otherwise, dystopian science fiction will become reality.