‘No fly, no buy’: Anti-terror policy, or constitutional nightmare?

President Obama wants Congress to pass 'No fly, no buy,' but how do you end up on a no-fly or terror watch list, how do you know you're on it, and most importantly, how do you get off?

Image from NBC No Fly No Buy presser
Image from NBC No Fly No Buy presser

WASHINGTON, June 16, 2016 — President Obama on Tuesday called on Congress to reinstate the assault weapons ban and also to make it harder for suspected terrorists to obtain firearms. In particular, he asked Congress to pass a “no fly, no buy” rule that would ban people on no-fly and terror watch-lists from buying firearms.

“People with possible ties to terrorism who are not allowed on a plane shouldn’t be allowed to buy a gun,” said Obama.

He issued this call in response to the shootings in Orlando. The gunman was on a terror-watch list, yet was able to buy firearms legally. He was widely reported to have been armed with an AR-15 (it was, in fact, a Sig Sauer MCX). Had either the assault weapons ban or “no fly, no buy” been the law, his possession of that weapon would have been illegal.

The assault weapons ban—a subsection of the Violent Crime Control and Law Enforcement Act of 1994—expired in 2004 when Congress refused to extend it. The ban prohibited the civilian sale of some semi-automatic firearms designated as “assault weapons” and “large capacity” magazines.

Free speech under attack at home and abroad

Last December, Congress rejected an amendment by Sen. Dianne Feinstein, California Democrat, to an Obamacare-repeal bill that would have barred people on the terrorist watch list from buying firearms or explosives. After that vote, Obama said, “Congress should act to make sure no one on a no-fly list is able to buy a gun. What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon? This is a matter of national security.”

Prior to Sept. 11, 2001, the federal government maintained a list of people not permitted to board aircraft in the United States. According to CBS’s 60 Minutes, that list included just 16 people.

After 9/11, that list grew. By 2006, the list grew to 44,000 people; it was pared down to just 4,000 names by the end of the Bush administration, but exploded after the “shoe bomber” incident and is now approaching 50,000. Another 75,000 were marked for extra screening.

In 2003, the government compiled the Terrorist Screening Database. By September 2008 that terror-watch list held 400,000 names, according to FBI deputy director Rick Kopel; 97 percent of people on that list were foreigners.

Obama’s comments aside, not everyone on a no-fly list is a terrorist.

The government maintains another list, the Terrorist Identities Datamart Environment (TIDE). TIDE serves as the basis for other watchlists, including the Terrorist Screening Database. It currently holds 1.1 million names.

How do you get on these lists? That isn’t clear. According to the ACLU, 280,000 people in the TIDE database have no known affiliation with any recognized terrorist group. Many of those who do are affiliated by blood relationship or tenuous association.

Nine hundred new records are added every day and only 60 removed

Nor is it clear how, once your name is on a list, you can get it removed. There is no formal appeals process, and the government won’t even tell you whether you’re on a list. You would presumably figure out that you were on a no-fly list when you were denied a boarding pass for a flight, or, if “no fly, no buy” were passed, you were denied the right to buy a gun

The National Instant Criminal Background Check System (NICS) already maintains a no-buy list for prospective firearm buyers. There is a process for appeal, but it is complicated, and NICS has occasionally refused even to accept appeals.

Given all this, critics of “no fly, no buy” argue that the law would be unconstitutional. The Fifth Amendment says that no citizen may be “deprived of life, liberty, or property” by the federal government “without due process of law.” State governments are similarly bound by the 14th Amendment.

“Life, liberty, or property” has not been defined. Being suspected of being a terrorist, though, certainly does not meet the definition of “due process.”

“No fly, no buy” couldn’t begin to pass constitutional muster without a clear legal process for putting people on the list and a clear process for getting them off. Any process short of a trial and proof beyond reasonable doubt would be problematic for withdrawing a fundamental, enumerated constitutional right. Mere suspicion just isn’t good enough.

The IRS came under fire in 2013 for putting conservative groups under special scrutiny for tax-exempt status. In 2009, Homeland Security Secretary Janet Napolitano stood by an intelligence assessment that listed returning veterans among terrorist risks to the U.S.

A law allowing the federal government to ban gun ownership to people on any terror watch list would, in the current environment, lead to abuse. Military veterans, members of pro-Second Amendment groups, and people who searched the internet for terms like “right to bear arms” and “molon labe” might find themselves classified as terror threats and unable to buy firearms.

Guns are not the problem; Obama’s gun control is no solution

The city of Dearborn, Michigan, with a heavily Muslim population of over 98,000, has more people on the terror watch list now than any other city except New York. If Obama gets his law, then next year, under another president, the city’s entire population might find itself banned from gun ownership.

Being black should not cost you the right to have your possessions searched only under warrant and probable cause; speaking Arabic should not cost you the freedom to fly across America. American legal tradition includes a presumption of innocence, even when you match a profile or are suspected of a crime.

Suspected terrorists are only suspected. They retain all of their constitutional rights, including the rights to due process, security in their property and their persons, and the right to own a gun.

If President Obama wishes that right to be removed, he must ensure that it’s done under strict legal guidelines of due process, under a presumption of innocence, with a clear right of appeal and beyond the possibility of bureaucratic and political abuse.

The odds that, with Congress, he can pass that hurdle are absurdly slim.

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