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Abstract

This Article aims to remedy that gap with respect to one important component of the country's current anti-terrorism strategy watch lists and to suggest some ways to avoid the worst excesses of the 1950s. A comparison of the two periods also serves to shed some light on the question of whether our institutions have learned from the experiences of the past in striking the balance between security and civil liberties. Part II of this Article gives a brief and broad-brush description of the McCarthy era blacklists and loyalty-security programs. Part III then describes the operation, bases for inclusion, and uses of today's terrorist watch lists. Part IV compares the two eras' labeling mechanisms along several axes. This Article focuses especially on the issue of "false positives" the identification of people as dangerous who in actuality are not. The task of watch listing is to find the very few real threats among the overwhelmingly innocent multitudes-the needle in the haystack, to use the familiar phrase. False positives are a concern of any adjudicatory system but have proven to be a particular problem with blacklists and watch lists. Part V draws some lessons from the past in order to address this question of accuracy. After rejecting the idea of abandoning watch lists entirely, this Article assesses three possible reforms: narrowing the substantive standard for selection; adding procedural protection, particularly some form of adversarial process; and restricting the uses of watch list results. Although these reforms are not mutually exclusive and some combination of all three could be adopted, this Article recommends that watch lists alone be used only to trigger investigation and other relatively minor impositions, along with visa and immigration admissions processing. In so doing, this Article highlights the relationship between substance, procedure, and effect in the law's designation of the allegedly dangerous.

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