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The terrorist Screening Center (TSC) oversees the nation’s consolidated terrorist watch list, a homeland security tool to identify known or suspected terrorists. Administered by the FBI, the TSC serves as an information clearing-house. It obtains data from a variety of sources, such as the National Counterterrorism Center, and then makes that data usable and available to government agencies whose responsibilities require terrorist screening. The use of the watch list to screen airline passengers or visa applicants has become routine, but recent laws and regulations now require screening for employees who work at some critical infrastructure sites, such as ports and chemical facilities. Unfortunately, the government has yet to finalize guidelines to manage this enormous task. Homeland Security Presidential Directive 6 (HSPD-6) � issued by the White House in September 2003 � ordered the attorney general to consolidate the government’s disparate watch lists. Toward that end, the TSC began operations in December 2003, combining 12 pre-existing watch lists and developing methods to share data effectively. Connecting the intelligence dots, sometimes literally, the TSC unifies information across homeland security departments and agencies. Watch list records are used according to the government “customer” and its homeland security mission. For example, U.S. Customs and Border Protection uses TSC records to screen individuals entering the country from abroad. The U.S. Department of State uses them as part of the visa application process. State and local law enforcement agencies have access to TSC information through the National Crime Information Center. Today, when a police officer checks the driver’s license of a speeding motorist, the check also queries specific TSC databases. Pursuant to HSPD-6 only “individuals known or appropriately suspected to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism” are included on the consolidated terrorist watch list. Making this determination is hardly a science and includes a degree of subjectivity. The Governmental Accountability Office (GAO) reports that the watch list had approximately 755,000 records as of May 2007, and the government uses a standard of reasonableness to decide who joins the list. The GAO states that this standard of reasonableness “can be described as a government agent’s particularized and objective basis for suspecting an individual of engaging in terrorist-related activities, considering the totality of the circumstances known to the government agent at that time.” The inclusion of more and more names, however, worries critics who believe the government has too much discretion to decide who makes the list. High-profile mistakes bolster such concerns. Senator Edward Kennedy, D-Mass. confirmed that he was on the aviation “no fly” list used by the Transportation Security Administration. He later received an apology from the secretary of Homeland Security. In October 2006, the television news magazine 60 Minutes obtained a copy of the “no-fly” list and reported that it contained dead 9/11 hijackers as well as Zacarias Moussaoui, even though he has been in federal custody since August 2001. Although the government continues to refine the watch list and how it functions, the task is about to grow more complex: The Department of Homeland Security (DHS) will have to screen hundreds of thousands � perhaps millions � of employees who work at critical infrastructure sites. These include port workers who must obtain a government-issued Transportation Worker Identification Credential, some employees at chemical facilities subject to the Chemical Facility Anti-Terrorism Standards, and some rail workers pursuant to the railroad background check provisions of the Implementing the Recommendations of the 9/11 Commission Act of 2007. HSPD-6 requires DHS to establish guidelines for “private sector screening processes that have a substantial bearing on homeland security.” Despite this directive � and forthcoming screening deadlines established by law and regulation � DHS has not done so. Questions go unanswered. For example, considering the relationship between ports and railroads, will the government use the same watch list databases to screen rail workers and port workers? This and similar questions need resolution. The GAO believes that “[f]inalizing such guidelines would help both the private sector and [DHS] ensure that private sector entities are using watch list records consistently, appropriately, and effectively to protect their workers, visitors, and key critical assets.” Until that occurs, neither DHS nor the private sector has a comprehensive understanding of the way the watch list will be used and its potential impact. Steven E. Roberts, an NLJ columnist, is a Boca Raton, Fla.-based attorney who specializes in homeland security regulatory matters.

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