From The Guardian:

The Obama administration’s no-fly lists and broader watchlisting system is based on predicting crimes rather than relying on records of demonstrated offenses, the government has been forced to admit in court.

In a little-noticed filing before an Oregon federal judge, the US Justice Department and the FBI conceded that stopping US and other citizens from travelling on airplanes is a matter of “predictive assessments about potential threats”, the government asserted in May.

“By its very nature, identifying individuals who ‘may be a threat to civil aviation or national security’ is a predictive judgment intended to prevent future acts of terrorism in an uncertain context,” Justice Department officials Benjamin C Mizer and Anthony J Coppolino told the court on 28 May.

“Judgments concerning such potential threats to aviation and national security call upon the unique prerogatives of the Executive in assessing such threats.”

“the ACLU likens [the practice] to the “pre-crime” of Philip K Dick’s science fiction”

It is believed to be the government’s most direct acknowledgement to date that people are not allowed to fly because of what the government believes they might do and not what they have already done.

The Justice Department said it must meet a standard of “reasonable suspicion” that a blacklisted individual poses a threat, a step below probable cause.

The declaration comes in a longstanding case, brought by the American Civil Liberties Union (ACLU), arguing that the government does not provide significant steps for someone caught in the “predictive assessments” to get off the blacklists.

On Friday, the ACLU asked Judge Anna Brown to conduct her own review of the error rate in the government’s predictions modeling – a process the ACLU likens to the “pre-crime” of Philip K Dick’s science fiction.

“I believe this is the first case in which a court is being asked to review the basis for the government’s predictive model for blacklisting people who have never even been charged, let alone convicted, of a violent crime,” said ACLU attorney Hina Shamsi.

In March, as a result of the lawsuit, the Department of Homeland Security began informing people of their inclusion on a flight blacklist and permitting them to file a “redress inquiry”. The resulting non-adversarial process has the government perform “careful consideration” of its reasons for blacklisting, with the Transportation Security Agency director as final arbiter. The ACLU considers the new process insufficient.

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