The right to bear arms cannot be infringed through secret proceedings.
‘What could possibly be the argument,” President Obama asked in his December 2015 address from the Oval Office, “for allowing a terrorist suspect to buy a semiautomatic weapon?” Hillary Clinton agreed. “If you’re too dangerous to get on a plane, you’re too dangerous to buy a gun in America,” she tweeted. In the wake of the recent terrorist attack in Orlando, politicians on both sides of the aisle have proposed expanding the “no fly” list to a “no buy” list for guns. (Senators Mark Kirk and Pat Toomey and Representative Pete King are among the Republican supporters of the idea.) At first glance, this plan seems like a pragmatic and even unimpeachable method to protect the homeland. As usual, the devil is in the details.
The “no buy” list would allow the government to silently infringe on the constitutional rights of U.S. citizens based on clandestine proceedings before a secret court. This civil-liberties nightmare is constitutionally reckless. Such Kafkaesque proceedings were once the bête noire of the Left. No longer, since gun-controllers see national-security conservatives as potential collaborators — a classic “Bootlegger and Baptist” coalition. Those on the right who preach fidelity to the Constitution should resist the Siren’s call and refuse to strengthen this dystopian regime.
There are two criteria for the government to add a name to the terrorist watch list, officially known as the Terrorist Screening Database. First, there must be “reasonable suspicion” that the person is aiding or abetting terrorist activity. This standard — effectively an informed hunch — is not particularly demanding and is sufficient for a police officer to pat down a suspect who may be armed. Second, the government must have sufficient information to identify a person, such as his first and last name, although even this standard is not rigorously adhered to. Senator Edward Kennedy was infamously added to the “selectee list,” which required him to undergo secondary screening at the airport, because the alias “T. Kennedy” was used by a suspected terrorist.
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The American Civil Liberties Union has challenged the watch lists in court, claiming that they deprive people of their constitutional rights without due process of law. In effect, U.S. citizens are secretly added to the registry, realize it only when they try to board a plane, and have no means to see, let alone challenge, the government’s evidence. In 2010, the ACLU told the Senate Committee on Homeland Security that the same concerns would plague a no-buy list. The testimony of Laura Murphy, the director of the ACLU Washington legislative office, is worth quoting at length:
We write today about the use of terror watch lists to screen gun purchases. The ACLU believes that the current terror watch list process is deeply flawed. Evidence from numerous government reports document ill-designed and inaccurate lists with serious inadequacies in the process for placing and removing individuals from the list. Even worse, the lists are shrouded in secrecy: who is on the list, the standard for placement on the list, and the requirements for removal from the list are all secret. Given these problems, we do not believe that anyone should be deprived of the right to purchase a gun, or the right to fly, or any other benefit of membership in civil society based solely on placement on a terror watch list.
Under existing federal gun laws, the National Instant Criminal Background Check System already flags a person whose name appears on the watch list. Paul Rosenzweig, who served in the Department of Homeland Security under President Bush, explained at Lawfare Blog this week that the flag results in “further inquiry” akin to a “secondary screening at the airport,” but it is not a ban on purchasing the gun. (According to testimony before the House Homeland Security Committee in September 2014, 95 percent of the 700,000 people on the terror list are not U.S. citizens and are already barred from purchasing firearms.) But for some politicians, the current law is inadequate.
Senator Pat Toomey, building on the ‘no-buy’-list proposal by UCLA law professor Adam Winkler, will introduce a bill this week to address the so-called terror gap: The Justice Department could now convince the secret Foreign Intelligence Surveillance Court (FISC) that “probable cause” exists to deny a suspected terrorist the right to purchase a firearm. This proposal is frankly stunning and recklessly relegates constitutional rights to jurisprudential purgatory.
#share#First, there is serious reason to question the validity of these behind-closed-door proceedings. A strongly worded 2011 decision by Judge John D. Bates charged that the National Security Agency had repeatedly misled the FISC on its oversight of domestic surveillance and had violated the Constitution for years. If Edward Snowden’s revelations have taught us anything, it’s that secret proceedings can and will be abused, especially if motivated by the administration’s political agenda. Jeh Johnson, the secretary of homeland security, has recently taken the position that “meaningful gun control has to be a part of homeland security.” This changed tactic is part of President Obama’s long game on gun control — because passing new laws is impossible, the administration prefers to add more and more people to prohibited lists.
Further, imagine the same sort of power in the hands of a Trump administration. Federal agents could clandestinely deny Muslim men — who are disproportionately represented on watch lists — of their civil rights based on unimpeached conjecture. (A good reality check for the next few months is to ask yourself whether you would want a President Trump exercising the same power as President Obama).)
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Second, even if we assume that the evidence is valid, the standard is flawed. Under the Fourth Amendment, if the government can demonstrate to a judge that “probable cause” exists to investigate a person, the police are allowed to search and seize specific evidence in limited places. The Founding Fathers, hardened by King George’s rapacious tax collectors, permitted these temporary searches only to pursue an actual conviction with proof beyond a reasonable doubt. Suspects are not sent to jail based on “probable cause.” This lax standard cannot support a limbo-like dilemma, where a person does not know when his constitutional right was violated, and when — if ever — it may be restored.
#related#Third, and perhaps most troubling, there is no meaningful judicial check on such one-sided proceedings. During these Star Chamber–like inquisitions, only the government can present arguments. The accused, unaware of the hearing, is unable to challenge the government’s evidence. In all likelihood, he would learn of his inclusion only when he flunked a background check. Further, any conceivable appeals process would invariably shift the burden onto the accused to demonstrate why his civil rights ought to be restored. This gets our system of justice absolutely backwards. Under the Constitution, it’s the government that must bear the burden of persuasion when infringing a fundamental constitutional right. Finally, this Sisyphean task would be all but impossible for the accused, because the government will not even introduce classified information into the relevant court. Imagine trying to contest evidence you can’t review, relying only on a summary of the charges against you! Meanwhile, during this arduous appeals process — the no-fly-list case has been pending in court for more than six years — innocent people will have their civil rights trampled on.
In December 2015, Speaker Paul Ryan told CBS’s Charlie Rose, “It’s very important to remember people have due-process rights in this country, and we can’t have some government official just arbitrarily put them on a list.” In a rare area of agreement, the ACLU in a blog post a few days later said that Ryan was “right that people in this country have due-process rights.” Even in these trying times, Congress must resist the urge to expand this dangerous and flawed regime; it must focus on ways of protecting both our security and our liberty.