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.

Update 18 May 2017

I should have just posted this video instead of writing the blog: