A ‘No Buy’ List for Suspected Terrorists Would Be Constitutionally Reckless

Josh Blackman:

‘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.

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.

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