After the Orlando nightclub shooting at Pulse, there was an increased call for gun control or gun reform laws. The most prevalent call was the idea of “no fly, no buy.” This policy would entail that people who are on the “no fly” list would not be allowed to buy guns. Quinnipiac University found that 86% of registered voters back this type of proposal when they polled this issue at the end of June. A Suffolk University poll taken around the same time found that 76% of likely voters supported such a measure. The idea has quite a bit of popularity. It has a “bumper sticker politics” feel to it where it sounds really good on bumper stickers. What’s more is that it is very easy to say to someone on the no fly list should not be able to buy guns. It appeals to your gut. It’s designed to attack those who oppose it. But it’s terrible policy. The amendment offered by Dianne Feinstein that would prevent those on the “no fly” list from purchasing guns failed as did Senator Susan Collins’s compromise amendment. The amendments would include those within the Terrorist Identities Datamart Environment which includes the Terrorist Screening Database of which the no fly list is a subset. I don’t think it will be brought up again, anytime soon in terms of actual legislation, but I do think people will continue to have discussions revolving around this issue.
Due process problems
There are some Constitutional arguments that we can have over whether or not gun control laws violate the 2nd Amendment. I, for one, believe that the Constitution does allow for regulations of firearms but for those that disagree with me, I certainly understand. But I do believe that regulations of firearms have to follow the other Constitutional amendments that we have and the principles found within the Constitution. We do have principles of due process, equal protection, privacy, and unlawful searches that are equally entrenched and protected in our Constitution. We must follow through with these principles. So, you must provide for reasoning as to how or why someone is prevented from purchasing firearms and/or a remedy for them if they are prevented from doing so by either a mistake or inaccurate information.
In 2003, in the immediate aftermath of the 9/11 terrorist attacks, President George W. Bush expanded the screening of suspected terrorists. The FBI Terrorist Screening Center (TSC) was created. The TSC houses the consolidated Terrorist Watchlist. This watchlist is a “single database of identifying information about those known or reasonably suspected of being involved in terrorist activity.” We’ll get back to the “reasonably suspected” portion of their statement in a bit. This database is what helps create screening agencies to prevent people from obtaining visas, enter the the country via aircraft or seacraft, or travel via air or sea around the country. The American Civil Liberties Union (ACLU) has been a critic of this agency and process since the onset. They noted in their report that the TSC also contains “the selectee list) which identifies “individuals who are subjected to additional questioning, inspection, and screening before being allowed to board flights to, from, or over U.S. territory.” The ACLU writes that 875,000 individuals as of December 2012 are on the consolidated terrorist watchlist. The Associated Press reported in February of 2012 that there were about 21,000 individuals on the “no fly list” alone. The ACLU has since reported that 47,000 people are on the no fly list as of 2013.
The authors for the ACLU write about what it would take to be placed in the Terrorist Screening Database. The TSC defines a reasonably suspected terrorist is an “individual who is reasonably suspected to be, or have been, engaged in conduct constituting, in preparation for, in aid of, or related to terrorism and terrorist activities based on articulable and reasonable suspicion.” As the authors of the ACLU write, this is “broad enough to include First Amendment-protected speech and association…mere proximity to a suspected terrorist should not make one a suspected terrorist, but that is what the standard allows.” The Government Accountability Office (GAO) acknowledged that “agencies utilizing watch list records recognize various definitions of [terrorism].” That’s just the standard to be included on the database. The no fly list and selectee list, though, are subsets of that database. Government representatives acknowledge that there are “additional derogatory requirements.” These requirements have not been disclosed.
As the ACLU has found in their efforts of representing clients that most of the people do not find out that they are on the no-fly list until they try to fly and are barred from trying to fly. Previously, the government had not confirmed or denied if people were actually on the no-fly list. This has since been changed.
What’s more startling is that there are a number of mistakes with the terrorist watchlists and what is not surprising is that people are placed on the watchlists based on discriminatory factors. The ACLU found that 280,000 on the master watchlist who have “no recognized terrorist group affiliation.” The city of Dearborn, Michigan which has one of the largest Arab American communities in the country has more people on the terrorist watchlists than any other city in the country except New York City. There are less than 100,000 people in Dearborn, Michigan.
People are erroneously placed on the No fly list and the list is not updated. The ACLU writes in their report:
Rahinah Ibrahim, a Stanford PhD student and Malaysian citizen, was prevented from boarding a flight in San Francisco, handcuffed (despite being wheelchair-bound at the time), and held in a detention cell for hours in January 2005 based on what turned out to be a bureaucratic error by the FBI that placed her on the No Fly List. The government fought to avoid correcting the error for years, even invoking the state secrets privilege in an unsuccessful effort to prevent judicial scrutiny. She was permitted to leave the country, but to this day, she has been barred from returning, even though the government admits that she should not have been placed on the No Fly List.
The ACLU reports the Department of Justice Inspector General wrote in 2008 that watchlist records are not appropriately generated, updated, or removed as required by FBI policy. In 2009, the same Inspector General found that many people were not removed from the watchlist and tens of thousands of names were placed on the list without a factual basis. Some of the other more notable names that have been included on the watchlists include Nelson Mandela, Ted Kennedy, and John Lewis.
Those on the watchlists have very little opportunities to be able to get their names off of the list as they are not offered a chance to make their case in front of a neutral arbitrator. In Feinstein’s amendment would require the attorney general to draft measures to make sure that national security is not compromised which would prevent an individual from finding out why they were denied the ability to buy a gun. Unless the government provides reasons as to why an individual is on the watchlist that is preventing them from purchasing a gun and allows for a real ability to correct the issue, it fails basic due process standards.