The things some politicians say often defy logic and everyday common sense. That has certainly been the case in comments some politicians, especially Republican conservatives, have made in the wake of the horrific Orlando massacre and the need to keep guns out of the hands of suspected terrorists on the Government’s No-Fly list.
Due Process Rights
House Speaker Paul Ryan led the conservative debate that individuals on the No-Fly list should be allowed to purchase any kind of legal weapon, including assault rifles like the one used in the Orlando attack, because some of them were put there by mistake and he does not want to “deprive them of their Constitutionally protected due process rights.”
That’s interesting concept, to say the least.
No Concern When Innocent Muslims Put on the Watch List
Where was “due process” when all those people who were placed on the No-Fly List by “mistake” and cannot now be removed?
More importantly, what is this No-Fly List? How does an individual find oneself on the list?
In September 2003, former President George W. Bush directed Homeland Security to consolidate all of its so-called “terror” watch lists managed by all sorts of agencies into one list. The FBI was designated as the agency to maintain the consolidated “terror watch list.” The responsibility for managing the list was the Terrorist Screening Database (TSDB).
Thus was born the so-called “terrorist watch list.”
Initially for Airport Screening
The primary purpose of the TSDB was to serve as a frontline screening process at all points of entry into the U.S. by customs officials; and to permit federal, state, local and tribal law enforcement personnel to share information about encounters with “known or suspected terrorists.”
According the Government Accounting Office (GAO), the TSDB is updated daily “with new or revised biographical information on known or suspected terrorists gathered by the U.S. intelligence and law enforcement agencies, including the FBI.”
Over 700,000 Names on List, 40% by Mistake?
The GAO has reported that at the end of the Bush administration, there were 47,000 people on the terror watch list. Today, there are nearly 700,000 on the list, far too many to be individually vetting for true accuracy.
The technology website TechDirt reports that 40 percent (or 280,000) of the people on the list have no connection with any recognized terrorist groups.
How do so many innocent people end up on the government’s terror watch list?
Easy to Get on the List, Difficult to get Off
The FBI maintains a policy that, under certain circumstances, allows any federal agent to “nominate” someone as a terrorist for whom the agency does not have an open investigation.
In an investigative report written by Jeremy Scahill and Ryan Devereaux for the Intercept, Hina Shamsi, of the ACLU’s National Security Project explains that “[I]nstead of a watchlist limited to actual, known terrorists, the government has built a vast system based on the unproven and flawed premise that it can predict if a person will commit a terrorist act in the future… On that dangerous theory, the government is secretly blacklisting people as suspected terrorists and giving them the impossible task of proving themselves innocent of a threat they haven’t carried out.”
All “Nominations” Considered Justified
Worse, the nomination system seems to lack serious check and balances that would prevent an individual from being erroneously being placed on the watch list. “Although government officials have repeatedly said there is a rigorous process for making sure no one is unfairly placed in the databases, the guidelines acknowledge that all nominations of “known terrorists” are considered justified unless the National Counterterrorism Center has evidence to the contrary.”
In 2014, the Huffington Post reported about seven ways a person can end up on the terror watch list. For example, an individual who posts something on social media that raises a “reasonable suspicion” that he or she may be linked to terrorism is sufficient to get them “nominated” for the list.
What is Due Process?
In legal lexicon, the U.S. Supreme Court has established two terms to guide law enforcement agencies who suspect wrongdoing is amiss: probable cause and reasonable suspicion. One or the other must exist before the police can initiate any official action against the individual.
The legal standard for probable cause requires a “fair probability” that a person has or is about to commit a crime. This was the gold standard until 1968 when the Supreme Court coined the term “reasonable suspicion” in Terry v. Ohio—a lesser silver standard justifying law enforcement action. Reasonable suspicion is nothing more than a “strong suspicion” based on less information than probable cause that criminal activity has or is about to take place.
Reasonable Suspicion Will Get You on the Watch List
The TSDB operates under the lesser “reasonable suspicion” standard.
So how does this standard translate into real-life situations which allows any private individual or law enforcement agency to nominate someone for placement on the terror watch list?
As example, a zealous Donald Trump supporter, who does not like his newly-arrived Muslim neighbor could report to the FBI that he is suspicious that his Muslim neighbor flew to Saudi Arabia for the hajj pilgrimage and returned wearing traditional clothing and sporting a new beard. Assuming the agent agreed that this conduct was suspicious, that could be sufficient information to place the Muslim neighbor “in nomination” for the terror watch list placement and designation as a “suspected terrorist.”
Procedures for Inclusion on List Violate Due Process
In 2014, a federal judge in Oregon ruled the procedures associated with the “no-fly” list violate due process. It was the first such ruling. The judge said, “the government must change its procedures to allow U.S. citizens who find themselves on the no-fly list to challenge the designation… She ordered the government to come up with new procedures that protect citizens’ due-process rights without jeopardizing national security. Passengers must be given notice of their inclusion on the list and a rationale for the designation and be allowed to submit evidence to challenge it…”
“International travel is not a convenience or luxury in this modern world,” wrote U.S. District Judge Anna J. Brown in Portland. “Indeed, for many, international travel is a necessary aspect of liberties sacred to members of a free society.”
Republicans Should Agree to Fix the List
So we agree with Speaker Ryan in some respects, some individuals are placed on the terror watch list by mistake and should maintain a due process right to challenge that designation. That being the case, Speaker Ryan, and his conservative colleagues, should first be trumpeting legislation to remove the nearly 300,000, or more, individuals mistakenly placed on the TSDB.
That still leaves roughly 400,000 individuals on the terror watch list who, according to the government’s criterion, have documented affiliations with known terrorist groups or individuals. However, this is also a dubious number because many of these individuals should also be cleared because “affiliation” can mean something as innocuous as receiving a phone call, being on a contact list or associated as a “friend” on Facebook.
Visiting Website Can Get You on the List
Beyond this, there are as many as 5,000 terrorist websites monitored by the Pentagon, law enforcement, and intelligence agencies on a daily basis. A visit to any of these websites would, under the TSDB’s “reasonable suspicion” standard, could constitute an “affiliation” with terrorism.
(So, does conducting research for writing this article make us “affiliated” with terrorism? Sadly, to some agents with tunnel vision it probably does.)
Big Brother and His Lists
The truth is that no one knows which government “list” they may be on these days. As lawyers who have represented innocent individuals attempting to get off the “list,” we do know if is almost impossible to determine what information is in these list or who to complain to dispute its’ accuracy.
Let’s be straight. We don’t believe terrorists should have guns, legally purchased or otherwise. We believe that Congress not only has the right but a legal obligation to provide law enforcement with tools to make sure this does not happen. However, we are also concerned with the Constitutionally impermissible over-reach of Congress and law enforcement made in the name of security. We have seen far too often that fear and security have been used as tools to achieve acquiescence to big-brother’s demand to more access to our personal and private affairs.
But, we also believe that any arguments about protecting due process right of individuals purchasing guns who are on a watch list should begin with an acknowledgement that a great number of the individuals currently on the list are their without legitimate reason and are facing extreme inconveniences unnecessarily. Immediate steps should be taken to clean this list and to remove the hundreds of thousands of individuals put on the “terror/no-fly” lists upon reliance of erroneous information. When the list is reliable and verified, perhaps we will all feel comfortable that it can be relied upon for decisions about who should be able to board an airplane or should be able to purchase a firearm.