Everyone agrees – other than ISIS and a handful of crazies – that we have to stop the epidemic of mass shootings (mass shootings [13] have skyrocketed under Obama [14]; 5 of the 12 deadliest mass shootings in history [15] took place during Obama’s first term alone).
President Obama plans to introduce – through executive action – a gun ban on those on no-fly lists. So does the governor of Connecticut [16].
Sound like a no-brainer … stopping terrorists from having guns?
But as Daily Beast points out, in an article called “My Fellow LIBERALS, DON’T Support Obama’s Terror Watch List Gun Ban [17]“:
As Americans we understand well how important due process is. No one, for instance, should be thrown in jail just on the say-so of some government official who declares they deserve it. Such is the behavior of tyrants, the Founding Fathers understood, and so we enshrined in our Constitution the right to counsel, the right against being compelled to testify against oneself, the right to trial by jury, etc.All of these rights are checks to ensure the government can’t simply pluck innocent people out of their lives and strip them of their life, liberty, or property. Only after fairly testing the charges against them can the government punish people with such deprivation.
But none of these hurdles must be overcome for the government to put someone on a list, especially not a list like this, which is a watch list. It is a list of people that for whatever reason (a reason that no one outside the government knows) the government has decided deserve closer scrutiny of their actions.
Is the government right to be concerned about these people? Maybe yes, but maybe not, and there is no way for ordinary citizens to know. Which means there is also no way for ordinary citizens to know whether any of them, even people who in no way intend to commit acts of terrorism, are also on that list.
In other words, there is no way to know whether you are on that list. Nor is there any way to know how to get off it.
That there is any list at all should give us all pause. It has not historically been the hallmark of a healthy democracy when governments have kept lists of people they didn’t like. It is hard to be a government of the people, by the people, and for the people when the government keeps track of the people, including those dissidents who would challenge it (which is something that in a democracy they are allowed, and even supposed, to do).
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What this proposal calls for is the government using the list as a basis to deny the people on it a right to which they were otherwise entitled.
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Based on the plain text of the Second Amendment and subsequent jurisprudence it is clear that some right is in there somewhere, and what this proposal calls for is for the government to arbitrarily and un-transparently deny this right to certain people without any sort of the due process ordinarily required. And that’s a problem.
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With this proposal we would be authorizing the government to act capriciously and unaccountably for any reason, including—and this point cannot be emphasized enough—bad reasons or no reasons at all, and against anyone, including—and this point cannot be emphasized enough, either—people just like you. There would also be no reason why, if the government could take away this right this way today, it couldn’t take away other rights you depend on having tomorrow the same way.
Liberal journalists Jeremy Scahill and Ryan Devereaux document [18]:
The Obama administration has quietly approved a substantial expansion of the terrorist watchlist system, authorizing a secret process that requires neither “concrete facts” nor “irrefutable evidence” to designate an American or foreigner as a terrorist, according to a key government document obtained by The Intercept.
The “March 2013 Watchlisting Guidance,” a 166-page document [19] issued last year by the National Counterterrorism Center, spells out the government’s secret rules for putting individuals on its main terrorist database, as well as the no fly list and the selectee list, which triggers enhanced screening at airports and border crossings. The new guidelines allow individuals to be designated as representatives of terror organizations without any evidence they are actually connected to such organizations, and it gives a single White House official the unilateral authority to place entire “categories” of people the government is tracking onto the no fly and selectee lists. It broadens the authority of government officials to “nominate” people to the watchlists based on what is vaguely described as “fragmentary information.”
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The document’s definition of “terrorist” activity includes [20] actions that fall far short of bombing or hijacking. In addition to expected crimes, such as assassination or hostage-taking, the guidelines also define destruction of government property and damaging computers used by financial institutions as activities meriting placement on a list. They also define as terrorism any act that is “dangerous [21]” to property and intended to influence government policy through intimidation.
This combination—a broad definition of what constitutes terrorism and a low threshold for designating someone a terrorist—opens the way to ensnaring innocent people in secret government dragnets. It can also be counterproductive. When resources are devoted to tracking people who are not genuine risks to national security, the actual threats get fewer resources—and might go unnoticed.
“If reasonable suspicion is the only standard you need to label somebody, then it’s a slippery slope we’re sliding down here, because then you can label anybody anything,” says David Gomez, a former senior FBI special agent with experience running high-profile terrorism investigations. “Because you appear on a telephone list of somebody doesn’t make you a terrorist. That’s the kind of information that gets put in there.”
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In 2004, [liberal] Sen. Ted Kennedy complained [22] that he was barred from boarding flights on five separate occasions because his name resembled the alias of a suspected terrorist. Two years later, CBS News obtained [23] a copy of the no fly list and reported that it included [liberal] Bolivian president Evo Morales and Lebanese parliament head Nabih Berri. One of the watchlists snared Mikey Hicks, a Cub Scout [24] who got his first of many airport pat-downs at age two. In 2007, the Justice Department’s inspector general issued a scathing report identifying “significant weaknesses [25]” in the system. And in 2009, after a Nigerian terrorist was able to board a passenger flight to Detroit and nearly detonated a bomb sewn into his underwear despite his name having been placed on the TIDE list, President Obama admitted that there had been a “systemic failure [26].”
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The rulebook appears to invert the legal principle of due process, defining nominations as “presumptively valid.”
Left-leaning Nation tells [27] how two middle-aged, lesbian peace activists got put on the no-fly list.
Bleeding heart Huffington Post noted [28] last year:
You could post something on Facebook or Twitter that raises “reasonable suspicion.”
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Or somebody else could just think you’re a potential terror threat.
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You could be a little terrorist-ish, at least according to someone.
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Or you could just know someone terrorist-y, maybe.
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Finally, you could just be unlucky.
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A federal judge ruled in June [29] that the government must develop a new process under which individuals can challenge their inclusion on the no-fly list. The judge found the current process “wholly ineffective.”
Progressive Salon reports [30]:
In fact, the rules for putting someone on the list are so weak that it’s acceptable for entire “categories” of people to be considered threats at a White House official’s choosing.
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Scahill told HuffPost Live [31]. “The government will not tell you if you are on the list, but it will share its labeling of you as a ‘known or suspected terrorist’ with foreign governments and private contractors. These policies make it nearly impossible to challenge your secret designation. The American public has a right to understand the policies of what amounts to a shadow legal system.”
Liberal Slate writes [32]:
The U.S. government’s reliance on “predictive judgments” to deprive Americans of their constitutionally protected liberties is no fiction. It’s now central to the government’s defense [33] of its no-fly list—a secretive watch list that bans people from flying to or from the United States or over American airspace….
Worse, the U.S. government launched its predictive judgment model without offering any evidence whatsoever about its accuracy, any scientific basis or methodology that might justify it, or the extent to which it results in errors. In our case, we turned to two independent experts to evaluate the government’s predictive method: Marc Sageman, a former longtime intelligence community professional and forensic psychologist with expertise [34] in terrorism research, and James Austin, an expert [35] in risk assessment in the criminal justice system. Neither found any indication that the government’s predictive model even tries to use basic scientific methods to make and test its predictions. As Sageman says, despite years of research, no one inside or outside the government has devised a model that can predict with any reliability if a person will commit an act of terrorism.
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Because the government’s predictive model results in the blacklisting of people who are not terrorists, individuals on the no-fly list need a meaningful method of redress—a fair way to demonstrate their “innocence” of crimes they will never commit. The government refuses to provide these safeguards in its current so-called redress [36] system, which violates the due process guarantees of the Constitution. It refuses to tell our clients all the reasons the government has for predicting future misconduct, leaving them to guess. It won’t provide the evidence underlying those reasons, including government evidence that would undermine its predictions. And it refuses to provide a hearing for our clients to press their case to a neutral decision-maker and challenge government witnesses’ hearsay or biases.
Indeed, the government has a history of labeling dissident as terrorists [37]. Any type of criticism of the fatcats [38] may get you labeled as a terrorist in post-9/11 America.
Are any of the government’s so-called “terrorism” [39] programs really only focused on stopping terrorism? Of course not.
Liberals might remember that George W. Bush said that “you’re either with us or against us” … and stripped Americans of many of our liberties [40].
One specific example: spying on Americans is all about [41] power [42], control [43] and money [44] … not protecting Americans [45] from terrorists.
Another example: indefinite detention [46].
So we've got to stop mass shootings ... but using a Kafkaesque, fatally flawed watchlist system is not the way.
Postscript: What does the Daily Beast article linked above mean when it says that – while liberals may dislike the Second Amendment – it’s still a Constitutional right?
A top liberal Constitutional law expert explains [47]:
Like many academics, I was happy to blissfully ignore the Second Amendment. It did not fit neatly into my socially liberal agenda.
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It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right. It is true that the amendment begins with a reference to militias: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Accordingly, it is argued, this amendment protects the right of the militia to bear arms, not the individual.
Yet, if true, the Second Amendment would be effectively declared a defunct provision. The National Guard is not a true militia in the sense of the Second Amendment and, since the District and others believe governments can ban guns entirely, the Second Amendment would be read out of existence.
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More important, the mere reference to a purpose of the Second Amendment does not alter the fact that an individual right is created. The right of the people to keep and bear arms is stated in the same way as the right to free speech or free press. The statement of a purpose was intended to reaffirm the power of the states and the people against the central government. At the time, many feared the federal government and its national army. Gun ownership was viewed as a deterrent against abuse by the government, which would be less likely to mess with a well-armed populace.
Considering the Framers and their own traditions of hunting and self-defense, it is clear that they would have viewed such ownership as an individual right — consistent with the plain meaning of the amendment.
None of this is easy for someone raised to believe that the Second Amendment was the dividing line between the enlightenment and the dark ages of American culture. Yet, it is time to honestly reconsider this amendment and admit that … here’s the really hard part … the NRA [48] may have been right. This does not mean that Charlton Heston is the new Rosa Parks or that no restrictions can be placed on gun ownership. But it does appear that gun ownership was made a protected right by the Framers and, while we might not celebrate it, it is time that we recognize it.
And liberal icons Gandhi and the Dalai Lama [49] accept gun ownership as moral.