Lost in all the news about the NSA program this week was the release of a by the DHS Inspector General on the TSA’s SPOT program (first by the New York Times on Sunday). The new report underscores what a waste of money that program has been. After hiring 2,800 full-time staff and spending an estimated $878 million since FY 2007, the program remains deeply misguided not only in its very concept, but also in how it has been implemented.
SPOT (which stands for Screening of Passengers by Observation Techniques) is the program that places “Behavior Detection Officers” (BDOs) near airport security lines, where by intrusively chatting with fliers, they will supposedly be able to detect “something amiss” that might suggest a passenger is planning a terrorist attack.
The program has always been ludicrous. In at a 2011 congressional on SPOT, psychologist Dr. Maria Hartwig summarized the decades of empirical research on the detection of deception, which is basically what SPOT is an attempt to do. That research, she said, has found that:
- Humans do barely better than 50% (chance expectation) in trying to guess whether someone is being deceptive.
- There are no great variations in individuals’ ability to detect deception.
- Supposed experts such as cops and customs agents are no better than anyone else.
- There are few if any reliable cues to deception.
- People frequently misread signs of stress, nervousness, and discomfort as indicating lies.
At root, the core problem with this program (leaving aside legal objections) is the same as the core problem with polygraphs and other “lie detection” schemes: the relationship between an individual’s internal state of mind, and their external physical behavior or signs, is simply not a consistent or reliable one.
As I discussed in , because the SPOT program is based on searching for supposed "signs of terrorism" that are vague and commonplace (while terrorism is anything but commonplace), officers can basically pick anyone they want for extra screening. Surprise, surprise, that often devolves into crude racial profiling—as we have , most notoriously at Boston’s Logan Airport.
On top of that extremely faulty foundation, the TSA has built a program rife with other problems, the IG report makes clear. Without even assessing the soundness of the rationale for this program (or lack thereof), and just looking at how it is run and how its effectiveness is measured, the IG’s findings are brutal . Excerpts:
TSA cannot ensure that passengers at U.S. airports are screened objectively, show that the program is cost-effective, or reasonably justify the program’s expansion.
TSA cannot accurately assess the effectiveness or evaluate the progress of the SPOT program.
TSA cannot demonstrate that BDOs are screening passengers in a uniform manner to identify potentially high-risk individuals.
TSA had not developed performance measures for the SPOT program.
The report also found that the only “success” that TSA can cite is in the random nabbing of people for non-terrorism-related issues. But as the IG says, that does not relate to the program’s supposed goal:
The program collects data from referral reports that provide measurable outputs of specific activities. However, these outputs do not provide a measure of program effectiveness, because TSA has not established why these outputs support desired outcomes. For example, TSA documents the identification of prohibited items, undeclared currency, and illegal aliens, but the SPOT program has not defined how these outputs support achieving the SPOT program goals.
This is a problem we’ve seen before: the transmogrification of airport security checks into general law enforcement stops or searches, which is not constitutionally permitted. The authorities cannot randomly or based on bogus science stop, interrogate, or search people walking down the street. To the extent they can do these things at the airport, it is only for the purpose of protecting the safety of aircraft.
SPOT is based on the myth that with a little training, thousands of BDOs can turn into hardened experts straight out of the latest spy or crime thriller, able to see right through troublemakers with the intuition of a James Bond. So one thing we might expect the program would do well is training, right? From the IG’s report:
TSA has not developed a training strategy that addresses the goals and objectives of the SPOT program. For example, BDO formal training, such as refresher training, is not consistently provided. Additionally, there is no formalized process to evaluate BDO instructors, who provide the only formal classroom training to BDOs, in the Performance Accountability and Standards System. . . . As a result, TSA cannot ensure that training contributes to the uniform screening of passengers.
The IG also reported confused relations between the SPOT program and the law enforcement officers (LEOs) that the BDOs (not being sworn officers themselves) call in when. . . well, we’re not really sure when. Law enforcement officers at some airports “said that they had not received clear information about BDO duties and why referrals from BDOs warranted law enforcement response.” The TSA reported that officers “did not question approximately 13 percent of referred passengers.” One wonders if this is a sign of eye-rolling exasperation on the part of the police officers. We do know that law enforcement “referrals” appear to be wildly inconsistent, with TSA data indicating just 430 referrals from Chicago’s giant O’Hare airport in a recent 16-month period, for example, yet 6,981 at the smaller airport in Orlando, Florida.
A 2010 Government Accountability Office similarly found the SPOT program had no scientific basis, wasn't subject to independent expert review and had not undergone cost/benefit analysis, so the latest findings are not a surprise. The new report was ordered by Rep. Bennie Thompson (D, Miss.), who had previously tried to add an amendment defunding the program to Homeland Security appropriations legislation, but it was not adopted. Let’s hope the latest findings will lead to an end to this misguided program.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.