Americans must resist calls from the Left and the Right to curtail individual freedoms in reaction to the atrocity at Orlando gay nightclub Pulse. Democratic Party candidate Hillary Clinton is urging us to “get back to the spirit of 9/12.” Democrats on Capitol Hill are reviving their defeated gun sales watch list, and they’ve got an enthusiastic ally in Republican Party candidate Donald Trump.
Here’s what you need to know to stand up to this attack on our civil liberties.
1. Neither the no-fly list nor the terrorist watch list were meant to adjudicate individual rights.
The no-fly list and the terrorist watch list are tools to evaluate and monitor security threats at the investigative stage. They are not good vehicles for adjudicating individual rights, as they utterly lack the procedural safeguards Americans are owed from their government.
In due process terms, these lists and their administration lack notice, an opportunity to respond, and finality. The government is not obligated to inform you that you’ve been put on these lists and consequently stripped of some of your rights. Your ability to challenge your inclusion—should you even find out, of course—is also limited. Further, there are no rules in place to prevent a nameless and unknowable government bureaucrat from putting you back on either list even if you do successfully challenge them.
2. The Democrats are still falsely conflating the no-fly list with the terrorist watch list.
We’ve been over this before. The no-fly list is not the same thing as the terrorist watch list. The no-fly has roughly 40,000 names on it and many of them are not the names of U.S. citizens. By contrast, the terrorist watch list has more than a million names on it (we can’t know the actual number). The legislation Democrats are pushing relies on a definition similar, but not identical, to the one used to create the terrorist watch list on a rolling basis. It has nothing to do with the no-fly list. That won’t stop Democrats from conflating the two intentionally (as an aide to Sen. Diane Feinstein admitted she does), nor will it stop ignorant journalists from confusing them accidentally (as several have conceded to me they have).
3. The Democrat’s proposed gun sales ban list has all of the infirmities of the no-fly and terrorist watch lists.
The Democrats are pushing legislation to create a secret anti-gun list run by bureaucrats whose job has nothing to do with looking out for your interests. The government does not have to tell you that you’re on the list, even if you are denied authorization to purchase a firearm. The opportunity to challenge inclusion is sharply limited. You can be added to the list at the whim of hundreds of faceless bureaucrats without judicial oversight. And the legislation intentionally avoids finality.
In the name of national security, naturally, these same bureaucrats may add or remove you from the list as they please. This is an obvious violation of due process as protected by the Fifth Amendment, something even the compromised American Civil Liberties Union admits.
4. Even if the Democrats’ proposed gun sales ban list had been made law, it would not have stopped the Orlando attack.
As frequently seems to be the case, political reaction to terrorism does not seem tailored to prevent terrorism. Pulse shooter Omar Mateen was placed on the terrorist watch list in 2013 and 2014. The FBI investigated him and, after determining that he did not have ties to terrorism, took him off the list. The terrorist watch list uses almost the same definition as the Democrats’ proposed gun sales ban list. So even if the Democrats’ proposed solution been enacted, it would not have stopped Mateen from purchasing the firearms that he used to kill at least 49 people and radically alter the lives of hundreds more.
5. Hillary Clinton’s ‘Spirit of 9/12’ is the specter of pervasive government surveillance.
It is true that in the shocked days after 9/11, the two major sides of American politics came together for a brief moment. But their response went too far. During this period of unity, Congress authorized an indefinite military action in Southwest Asia that almost 15 years later stretches across the Middle East and into Africa with no end in sight.
During this period of unity, Clinton and 97 other senators came together to pass the USA PATRIOT Act, which established a surveillance regime that took civil libertarians more than a decade to dismantle. In light of these previous terrorism overreactions, the burden is on the individuals demanding that we do something (anything!) to demonstrate that their proposals are reasonable and include responsible safeguards for constitutionally protected rights.
6. Democrats’ response to terrorism looks exactly like their last call for gun control.
It is no vice to want to respond forcefully to terrorist attacks. But in this case the response looks exactly like the Democrats’ last call for gun control. In the months since they last pushed this legislation, the Democrats have not granted even for a second that the due process concerns that defeated it last time are reasonable.
This strongly suggests that the Democrats do not have the due process rights of Americans in mind in this legislation. One can reasonably wonder why the Democrats’ response to terrorism seems to set its sights on something other than terrorism.