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Watch lists have become increasingly important tools for law enforcement and the protection of homeland security since the terrorist attacks of September 11, 2001. These lists, however, pose dangers that innocent persons may be burdened either because they are included on such lists without justification or because they share a name with another individual who is appropriately listed. Our public law traditionally addresses this sort of risk through some redress-oriented scheme of due process that allows individuals alleging improper treatment to seek administrative and judicial relief from the error they assert in their particular case. Such an approach is inadequate to deal with antiterrorist watch lists for two reasons. First, redress systems will not protect the many individuals who will never realize they are covered by such lists. Second, there is an inherent tension between the goals of achieving security through watch lists and the design of a fully transparent redress system. Following the framework of Professor Jerry Mashaw, it would be preferable to adopt a bureaucratic justice approach that blends positive administration with law-like constraints on the exercise of discretion designed to secure important public values in the processes by which names wind up on watch lists in the first instance. This paper specifies the key requirements of a front-end fairness charter for watch lists, and recommends legislation to integrate that system with provisions on notice and two levels of back-end administrative redress specifically tailored to the watch list context. The paper also explains why the Privacy Act and Fifth Amendment due process law are inadequate to address current problems.

The Bureaucratic Due Process of Government Watch Lists