A Simple Primer on “NoFlyNoBuy”: It’s Complicated

The NRA and the right are getting shellacked for apparently religiously protecting gun rights to the point that they’d rather allow terrorists to buy weapons than give one damn inch at anything smacking of gun control. It seems simple enough: If you’re on a no-fly list, you shouldn’t be able to buy a gun. I mean, really, if the government thinks you’re so dangerous they won’t allow you to even enter an aircraft AFTER going through TSA security, why in the world would the NRA defend your right to own a gun? Unfortunately, just like banning “assault rifles” is not a simple as it seems, the issue is a little more complicated.

There are certain proposals for weapons purchases I have no issue with, but this one has significant repercussions. For instance, I have no heartburn with universal background checks. While I might be missing something, I just don’t see the problem with having to go through a background check to purchase a firearm (Yes, I know, I’ll now be blasted with emails and comments saying I’m a damn apostate). In the last year I’ve purchased three firearms: Two long guns and a pistol. For all three, because I went through a dealer with a Federal Firearms License, I had to go through a background check. It took about ten minutes in total. I’d venture that over 98% of gun purchases are made this way, so what’s the big deal with the final small percentage?

The reason I have no issue with it is because the background check runs against a repository of hard data, such as my felony record (if I had one), as proven in a court of law, with due process. And therein lies the rub: Including the terrorist watch list into the background check moves away from concrete data and into intuition, leaving due process behind.

First, the so-called “terrorist watch list” isn’t a single, consolidated list, but a compilation of lists from a plethora of different organizations with more than a million names combined. Each one of these organizations (FBI, DHS, CIA, DIA, etc, etc, etc) can nominate someone to be placed on the list, and the bar for doing so is ridiculously low. There is no due process involved. Buy a one-way ticket to Turkey? “Put him on the list”. You’d think I was using hyperbole, but noted conservative commenter Stephen Hayes actually had this happen to him. In fact, he never could get a concrete answer as to why he was placed on the list and could only come up with his one-way ticket purchase as the reason. He’s lucky, though. As a media personality, he had connections, and access to people in high places to get himself removed – even if it took forever.

Others aren’t so lucky – and there are plenty of them. For instance, a veteran of the US Air Force was detained in Turkey, and has yet to get off the list – or even be told why he’s on it – leaving him stranded overseas. He grew so frustrated he decided to take the government to court – and in so doing is highlighting the problem with the list: It’s very easy to get on, but damn near impossible to get off. Have a name similar to someone else? – You may be on the list. Buy a ticket to a country that appears “suspicious”? – You may be on the list. There are no firm criteria for being placed on the list, just the judgment of some nameless bureaucrat in the bowels of a three-letter agency, and its mantra is “better safe than sorry”. It’s so bad that even the ACLU – no friend of gun-owners to be sure – has been fighting for five years to declare the list as unconstitutional, and on this issue sides with the NRA.

The administration’s defense in the various lawsuits brought on by people wrongly labeled as terrorists has been that “travel”, in and of itself, is not a right, and therefore no American citizen has been infringed. Ignoring for a moment that the government doesn’t give a damn that restricting an innocent persons ability to travel can have catastrophic consequences – and has, with people losing jobs, missing deaths of loved ones, stranding families overseas, and forgoing medical care – tying a gun purchase to the list invalidates that argument. Whether people like it or not, the 2nd amendment is enshrined in the US Constitution. It is by definition an inviolate right of a US citizen that can only be abridged through due process in a court of law, in accordance with the 5th amendment. And THAT is where the argument lies.

Nobody – least of all me – is saying they want a terrorist to have the ability to purchase a firearm, but the question is bigger than a catchy slogan of “NoFlyNoBuy”. It’s about precedent beyond the 2nd amendment. We’ve already shredded the due process clause in the 5th amendment by even proposing this, but what about the 1st amendment? If, at the stroke of a pen based on some analyst’s intuition, we can tell someone they can’t buy a gun, can’t we go further? Why can’t we tell them they can no longer use Facebook, Twitter, YouTube or any other form of free speech? In fact, what’s to stop the executive branch – and the executive branch alone, as nobody else factors into who goes on the list – from saying, “If you end up on the list, you can no longer practice your religion.” You’d say that’s ridiculous, but why? Radical Islam is a driving force behind the attacks, and the Internet is how people are being radicalized, so it makes sense. Screw the 1st amendment. In fact, why can’t the list be used to shred any of the planks in what’s known as the Bill of Rights? End up on it, and you give up your right against unreasonable search and seizure. Doesn’t that also make sense? If you’re too dangerous to be allowed on a plane, why should you get protection under the 4th amendment? Get on the list, and the FBI no longer needs a warrant to tap your phones or search your house. After all, if we’re worried about you buying a gun, shouldn’t we want to know if you already have one? You gave up all of those rights by purchasing a ticket to Turkey.

Speaking of the 4th amendment, two years ago that man-child Snowden exposed a plethora of NSA collection methods designed to thwart terrorists, and one of them set off a firestorm: Metadata collection. The left – the same ones screaming for the “NoFlyNoBuy” – went ballistic over the evil, “unconstitutional” storing of metadata, claiming it went against the 4th amendment, and yet the very intelligence collection they claimed was unconstitutional actually had due process in the form of the FISA court. If someone wanted to use the data, they first had to go to a court of law to prove probable cause. Now, when no such protection is even remotely in the room – when there is no due process whatsoever – they’re more than willing to remove a separate but equal plank of the Bill of Rights. Ironic.

The sad thing is that the issue has become nothing more than a partisan witch-hunt, twisting this horrific tragedy to gain political points. I applaud attempts to keep weapons out of terrorists’ hands, but just slapping an answer on a mechanism that’s bloated with inconsistencies, incorrect data, no oversight, and ripe for abuse is not the way to go about it. There is, however, a simple way to fix this: give the American citizen due process.

The republicans have proposed various amendments stipulating methods of due process, and the administration has rebuffed every one, even as its database grew with clearly innocent people. At one point, far from adjudicating why an accused person was on the list, the attorney general actually claimed in court the entire terrorist watch list was a state secret, and that he didn’t even need to confirm the man was named. That is fine by me when you’re dealing with Jonny Jihad from the Middle East, but when you’re talking about a United States citizen, that just doesn’t fly. No pun intended.

In our judicial system, we have a sacred concept of innocent until proven guilty. I realize that’s impossible with a terrorist watch list – as it’s precisely a tool to keep track of suspected evildoers – but there should be some type of due process before ending up labeled a terrorist. After all, when the FBI suspects someone is in the Mafia, they still have to go to court for such things as warrants to search a residence. Just because they suspect a citizen doesn’t mean he loses his constitutional rights, and it should be the same here. If the administration and congress wants to use the list to deprive a US Citizen of his or her rights, then it should have to refine and quantify how someone goes on the list, to the point that perhaps a court should be involved instead of just an analyst reading a flight manifest or learning a person stayed at the same hotel as a suspected terrorist. Right now, the administration’s answer is “The aggrieved can always bring suit against the government.” Huh? If some jack wagon puts my name on the list because I went to Morocco for book research, then the only way to get off is to hire a lawyer and SUE the United States Government? Ridiculous. How about put some due process on the front end and determine that placing me there was wrong to begin with?

Using the database for prevention methods is a good idea, but it requires hard work, diligence, thought, and non-partisan oversight, something that should have been done from the beginning when creating the list – and was done with the metadata. Maybe, instead of following “better safe than sorry” when we’re talking about depriving a US Citizen of his or her rights, we need to create a secondary list involving the judiciary. A US Citizen’s-only list. In order to get on it, the government has to prove you’re a clear and present danger – moving away from analyst intuition and flight manifests and into actual probable cause. Right now, out of the more than one million names on the terrorist watch list, the FBI is tracking perhaps a couple of dozen US Citizens who could be construed as presenting clear and present danger. They would go on the secondary list after proving to a “FISA”-like judge that they deserved it – and there is a structured form of redress if the accused chooses to fight the designation. Why is this thought so repulsive to the left? Am I the only one that thinks it’s ridiculous that the FBI has to go to court for a warrant to wiretap a known drug kingpin, but all it takes to be flagged as a terrorist is a nameless analyst’s intuition or a computer scanning flight records? Especially when the proposed endstate is an infringement on a person’s constitutional rights?

As it is now, leveraging a list that is completely secret and solely controlled by our intelligence organizations is about the slipperiest slope I can imagine. In fact, to show how quickly it can degenerate, federal law enforcement officials have already been accused of using the list to blackmail certain wrongly accused into being informants. “Sorry about mistakenly placing you on the list. Want off? Just go infiltrate that mosque for us.” Makes you wonder if it was a “mistake”.

If the storage of phone record metadata – with its use only allowed after a court order – was the end of the republic as we know it, how can anyone claim any less with this proposal as it stands now?

Yes, terrorists buying guns is abhorrent, but as the administration is fond of saying, let’s not lose who we are in our fight against them. Secret lists and sound bites alone are not the solution.

Update 23 June 2016

This is exactly what I was talking about above about political tap dancing:  Representative Jerrold Nadler tweeted this today:

“We must not use due-process as an excuse to support mass murder”.  Yes, a sitting congressman just demanded that the US Constitution be thrown out to prevent terrorist attacks.  Funny thing is, when the Patriot Act was being debated, he said this:

“This dangerous proposal would relegate our fundamental constitutional rights to the status of historical trivia.”

“It sets a frightening precedent,” he added.

So, the Patriot Act was a frightening precedent, but using a secret list with no oversight or due process to strip constitutional rights is perfectly okay?  Come on.

Comments

  1. D'Anne Horner says:

    And of course, the second amendment trumps (no pun intended) the rights of citizens who just want to live a life.

    • Brad Taylor says:

      I think you missed the entire point of the blog. It’s not a binary choice, and it’s not strictly about the second amendment. If you’re willing to cede a constitutional right you don’t care about in a fervent quest for security, don’t then come back when a right you DO care about is abrogated for the same reasons. I find it remarkable how many will vociferously decry any intrusion by the so-called “surveillance state”, and yet don’t care a whit that some secret cabal is unilaterally designating American citizens as terrorists with no due process whatsoever. If this is what fear does, then yes, we do need to worry about our republic, because today it will be the second amendment. Tomorrow it might very well be the first or the fourth.

      • D'Anne Horner says:

        Nobody wants your guns. We want a conversation to see if there IS something to be done to help keep terrorists from getting guns so easily. How do you explain the the Planned Parenthood shooter who is too crazy to stand trial but was sane enough to buy a gun? Just asking. Oh and my original comment was sarcastic. Why is it against the constitution to have a conversation?

        • Brad Taylor says:

          I’m all about a conversation, and I thought that’s what I was doing by responding in the first place. I stated in the blog how I thought guns could be kept out of the hands of terrorists while still preserving the rights of American citizens. I’m not at all concerned about using the list to prevent gun purchases IF the list is in fact full of terrorists. Right now, that’s not the case. Just because someone is on one of the dozen or so watch lists does NOT mean he or she is a terrorist. It just means someone thought he was worth inclusion for a variety of reasons that may or may not have anything to do with terrorism. As for the mentally ill being able to access firearms, that is a HIPAA regulation that the people actually espousing the NoFlyNoBuy won’t budge on. Individual privacy vis a vis medical diagnosis is more important to them than preventing the mentally ill from obtaining weapons. The sword cuts both ways.

  2. Betty R. says:

    I have been looking for a concise and rational explanation of this controversy. I just wish all the people out there shouting at and blaming each other would take the time to read this. Thank you, Brad!

    Looking forward to receiving your new book!

  3. So from my understanding, the Terrorist Watchlist was formed in 2003. According to ise.gov, they refer to the list as “one of the most effective means for counterterrorism for the US Government.” How can that be? It seems that out of fear from 9/11, a policy was put in place that is like a giant net that was thrown out there to catch anyone almost indiscriminately that was termed a potential threat, by whoever makes that decision. Sincere question: has the method for being put on the list ever been refined from its implementation, making it a much smaller net to cast? Or has it been broadened to indiscriminately catch more? It seems if your caught in that net, if you don’t have influence and lots of money, which most people don’t, your pretty much screwed. The list in itself is no doubt helpful, but evidently filled with problems.

  4. Stuart Filis says:

    Very eloquently put Brad, excellent blog. I typically lean more towards the right on the gun issue… the “grabbers” would likely call me all kinds of names and make juvenile attempts to humiliate me by suggesting that my affinity for guns is an attempt to compensate for some anatomical deficiency (such drivel is actually televised and celebrated on certain cable networks). In any case, I can’t argue with anything you said here. It puts me in mind of my favorite Ben Franklin paraphrase… those who are willing to give up a bit of liberty for security deserve neither liberty nor security.

    Anyway, I’m reading The Insider Threat right now and loving it! I’m looking forward to The Forgotten Soldier and picking up Ghosts of War when it comes out.

  5. Steve Gibbs says:

    The G had multiple chances to interdict this guy. Multiple investigations, a call from a gun Store that they suspected himof bad intentions. Many incidents here he declared allegiance first to Al Queda and then ISIS. Did any agent talk to the first wife? She claimed to have been abused. If someone had talked her into filing charges or a protective order, he would have been on a No Gun purchase lists hat day..

  6. Aaron Ebertowski says:

    It’s a tool from the Martial Law playbook (I lived and worked in a country under Martial Law during the Arab Spring in 2011 / 2012) that the typical US Citizen has willingly accepted since 2003. We the people have (basically) no recourse for ending up on list and it is used every minute of every day with impunity against us. Right now it’s a “No-Fly List” but what happens when each of those little TLAs has their own little list that is a “No-Buy List” because you bought enough. Or you own enough. Or you write a comment on a post we don’t approve of… it is a slippery slope and I fear we’RE already sliding down it way too fast.

  7. RightSaidFed says:

    “Background checks”

    Part of the objections, as I understand them, relate to temporary transfers.

    Let’s say Bob invites his 20 year old niece and her boyfriend to his farm. The first day, Bob gives the two hands-on training re the basics of loading and handling a variety of handguns, using inert ammunition, on his back-forty shooting range. Later, he leaves town for a month weeks. Before he goes, Bob tells his live-in fiancée (former AF and current FBI linguist) the combination to his long-gun safe in case the local wildlife venture too close.

    Depending on the bill — particularly the Bloomberg-type models — either hypothetical could plausible qualify as a transfer requiring a background check. (The GCA doesn’t specifically define what constitutes a transfer.)

    • Chris Bennett says:

      What’s wrong with requiring a background check in this case? What if his wife is crazy or has a felony record?

      • RightSaidFed says:

        Perhaps nothing in theory (although, given the hypothetical, it would be exceedingly strange if the fiancée did have a criminal or mental disqualifier). But, let’s change it up.

        Let’s say while Bob is out of town for a week there’s a rash of home robberies nearby. Out of an abundance of caution, he asks his fiancée if she will take the guns from his cabinet and store them at her home safe until he returns. Under a fair reading of some proposed schemes, Bob would have to travel with his fiancée to a FFL’s place of business. Just as if the FFL were selling the firearms from his inventory, Bob would have to complete out ATF Form 4473, the FFL then contact the FBI for a background check on the fiancée, then the FFL would take custody of the guns and record the acquisition, and then the disposition after he hands Bob’s fiancée the weapons. And, when Bob returns, the process would have to be repeated in reverse. (And, depending on the state, the same would be required if Bob asked the local PD to secure his weapons).
        Or, say Bob and his friend are hunting on private land. He’d be required to pursue the same process if he wanted to leave his gun back at camp with his buddy to spend 10 minutes scrambling up over the brush and scree to get his bearings.

        As for someone being crazy or having a felony record, transferring possession, even constructive possession, to such persons is already a felony if the owner has reason to believe the transferee has disqualifiers. There is also civil liability for any injuries incurred.

  8. Samuel H Weatherford says:

    Colonel,

    Your insight is timely, relevant and insightful; thank you for sharing it. As a member of the NRA and a licensed practitioner of medicine, I believe we are long past due for meaningful discourse on this topic. I believe that the no fly list, properly enforced would be a good starting point and we could use it as a model to ensure those with adequately diagnosed mental disease who are on certain medications are not provided access to firearms as well. For their safety’s sake as well as family and innocent citizens.

    Have your ever considered sharing your blogs over at SOFREP.com. It would be well received and generate continued and much needed discussion on topics such as this. A former SFOD-Delta by the name of George E. Hand IV is a regular contributor as well, among others.

  9. Brad
    Thanks for writing what many people are thinking. You articulated the key issue here. The Constitution is THE law of THE land and it affords us certain unalienable rights! All of us, no matter what we believe.

    The Fifth Amendment reads:
    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    It’s unwise for any of us to cherry pick which infringements we get out panties in a wad about and which ones we don’t. A violation of one is an attack on all. The NoFlyNoBuy and Terror Watch List sets dangerous precedents that EVERY Freedom loving American should be concerned about. There is no left or right here but an issue that affects all of us.

    Reagan said it well:
    “Freedom is never more than one generation away from extinction. We didn’t pass it on to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same or one day we will spend our sunset years telling our children and our children’s children what it once was like in the United States when men were free.”

  10. I’m a 17 year US Army vet (CO) that was hurt in A-Stan. I have purchased firearms from individuals,however,won’t complete the transaction until the bill of sale is notoirized and I have a picture of the seller.
    I have many friends who hold a FFL and like yourself, that’s my preferred method of purchase.
    As far as an AR-15, that’s a beginner carbine for adolescent children learning to hunt or use a carbine.. My son was proffecient at 11 years old
    Then again,politicians rarely allow facts to interfere with their emotional narrative.
    As usual your spot on with your analysis.

  11. Thank you for the detailed explanation of the complexities involved. The Orlando terrorist was well known to the FBI and having to close the case if they can’t prosecute seems like one of the real problems to me, especially if they were later informed that he was trying to buy body armor and ammo. The FBI seems to be hampered by higher ups.
    When the IRS was weaponized against certain groups it shows how dangerous a bureaucracy can be to law abiding citizens. The Bill of Rights are not given by government but by God. Big government by its nature tends to be tyrannical and must be guarded against.
    Re: sit in by Democrats in Congress
    A revoltingly infantile display of nincompoopery.

  12. I’m a NRA Life Member and Certified Instructor and agree with you 100%. If the due process issue could be resolved within say 30 days without undo hardship and costs to the petitioner, I’d be all in the no fly-no buy proposition. BTW, the late Se. Edward Kennedy was on that list. Of course he had the juice to clear it up.

    Living in the NE, in a very anti-gun state, I see a rolling thunder , so to speak, of anti-gun sentiment, more than usual. Both sides are unable and unwilling to listen and compromise on issues- something we desperately need. Each side demonizes the other.

    I don’t think the NRA is being helpful with positions which are known to,inflame the anti-gunners. (And vice-versa) . As members of the NRA we need to let them know they don’t speak for the vast majority of members, nor, the even larger group of sportsmen who want no part of the NRA.

  13. krazykat_randi says:

    I have been having this precise conversation with my progressive nephew who thinks it’s ok if a few innocent people lose their rights so that he can feel safer. I was appalled when he said that. I asked how he would feel if he mistakenly got on the list, and got nothing but insults in return. I tried to point out the guy that was on the list mistakenly because his name was similar to someone else and when he asked how to get off the list was told it would be easier for him to change his name. I don’t even know how to talk to people about issues anymore when their first response is to try and make you feel stupid if you have a different point of view.
    You have put into print what I have been trying to say very well. Thank you.

    • Patricia Boyer says:

      Hi Brad: I just finished The Insider Threat which was my first book by you. I really liked it, and it made me wonder how many unhappy people could go over to Isis. I really liked you hero, Pike Logan. I want to think you for your service and everything you have done. I enjoyed reading your blog and agree with all of it. I am 75 and have always enjoyed and appreciated my freedom and am really worried that a lot of upheaval is going to happen to us in the future. I am looking forward to reading your other books. Stay safe.

  14. Jonathan Sayles says:

    Your damn books are incredible (I made the mistake of starting one @11:00 P.M. one night – and ended up going to be past 3:00 (and had to get up to work @7:00)………anyway…. Your philosophy (writ large in Pike’s mind) is that there are good guys & bad guys in this world – and the ends (bad guys lose) always justify the means. Fair enough. As someone who hasn’t served – you talk – I’ll listen.

    But on the universal right to own guns – no. No. Guns were needed when the Constitution was framed – in order to kill squirrels/deer & eat – and fend off bears. In the 1800’s they were still needed – albeit less so – but in the 1900’s there are exactly two purposes for guns in the U.S. 1. Killing other humans – and 2. Hunting – the sport of taking animal life.

    And since we’re not going to starve for a lack of furry critters to skin and eat – then what? We own guns to kill humans. Cops need guns – our military needs guns+++ Beyond that? Guns do nothing but screw up the world.

    • Larry Klasinski says:

      I don’t own a gun, never have.
      I spent time in the army during the Viet Nam Conflict, saw first hand what guns can do. BUT, I will scream and fight to defend my right to own a gun if I so choose. You don’t want to go hunting, then don’t buy a gun, and don’t do it. However, you should let your anti gun opinion guide your life, not mine.
      I am very disappointed in the way our country is changing with all the Political Correctness. We can no longer speak freely whether it is our belief in God or our customs. So many people want more government telling us what we can and can not do. Our self reliance is vanishing.
      The thing about a Right like the Right to bear arms is that you can if you want, but you don’t have to, it’s an individual choice. Let’s keep it that way.

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