No Matter What You Think Of Gun Control, Relying On The No Fly List For Anything Is Monumentally Stupid

from the due-process dept

As you may have noticed, the attacks in San Bernadino last week quickly became seen through the lens of what political point certain people wanted to make. The Democratic party quickly attempted to push for a bizarre type of gun control, barring people on the “no fly list” from buying guns. It’s one of those things that sounds good if you have no real knowledge about what’s going on. But it’s still being pushed because it sounds like a sensible thing at first glance: why, if someone is a potential terrorist threat, they think, they probably shouldn’t be able to buy guns. Hell, here’s how President Obama himself put it last night in his big speech about terrorism (and gun control) in the wake of the attacks:

Now, here at home, we have to work together to address the challenge. There are several steps that Congress should take right away. To begin with, 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 semiautomatic weapon? This is a matter of national security.

Well, here’s the problem: being on the “no fly list” does not mean you’re a terrorist suspect. For the President to equate the two is not just wrong, it’s disgraceful. First of all, there are two separate lists: the no fly list and the “terrorist screening database.” There is overlap between the two lists, but they are not the same thing by any stretch of the imagination.

Second, there is no due process whatsoever involved in putting people on the no fly list. As we noted just last year, a court found that the lack of any legitimate way of getting off the no fly list was unconstitutional. Another case involved an FBI agent checking the wrong box, which put a woman on the no fly list, and kept her out of the country for a decade. In another case, a court had to force the DOJ to admit to people they were on the no fly list, because it refused to even let them know before. While the DOJ finally changed this policy a few months ago, the lack of due process is ridiculously concerning.

Then… there’s this:

Leaks to the Intercept revealed that the “process” by which people are put on either the no fly list or the terrorist watch list basically involves hunches, and revelations from just a few months ago show that DHS still uses flim flam pseudo science to put people on the list based on hunches that the government laughably calls “predictive judgment,” but which experts have said has no scientific basis whatsoever.

If you want to understand how incredibly wrong this proposal is, you just need to replace “buy guns” with something else, like “the right to assemble” or “the right to use the internet.” It’s easy to say: “What could possibly be the argument for allowing a terrorist suspect to use the internet?” But then you remember that these aren’t actual suspects — they’re just people put on a list by law enforcement with no thorough process, let alone due process to defend themselves or to get off the list. And, of course, being a “suspect” doesn’t mean you’re guilty. Innocent until proven guilty used to actually mean something.

Thankfully, at least some are now recognizing this with Republicans suddenly arguing that they don’t like this gun control policy because the no fly list is a joke. Here’s presidential candidate Marco Rubio:

?These are everyday Americans that have nothing to do with terrorism, they wind up on the no-fly list, there?s no due process or any way to get your name removed from it in a timely fashion, and now they?re having their Second Amendment rights being impeded upon…. The majority of the people on the no-fly list are often times people that just basically have the same name as somebody else who doesn?t belong on the no-fly list…. Sometimes you?re only on that list because the FBI wants to talk to you about someone you know, not because you?re a suspect.”

He’s not wrong per se, but note that he’s only concerned about the potential Second Amendment impact of this should that amendment move forward (which it won’t) — and not about the impact of all those innocent people whose lives are totally disrupted by being on the list.

And here’s House Speaker Paul Ryan suddenly concerned about due process violations with the no fly list — but again, showing no interest in actually doing anything about it, other than using it to block gun control:

?People have due process rights in this country,? Republican House speaker Paul Ryan said in explaining his party?s opposition to the vote, apparently with a straight face. He went on to say there shouldn?t be a rush to pass legislation at the risk of ?infringing upon the rights of law-abiding citizens…?

Again, sure. But if the no fly list is a due process nightmare, why is it still around? Why aren’t Rubio and Ryan looking to end that? And why have both of them supported all sorts of other legislation that infringes upon the 4th Amendment rights of law-abiding citizens?

It’s great that some folks are suddenly aware of the fact that the no fly list is an unconstitutional, due process nightmare — but focusing on the whole gun control aspect of it is pretty ridiculous. The no fly list is a problem on its own. It should be done away with. If people want gun control, focus on gun control, not on expanding the mess that is the no fly list. If people don’t want gun control, go ahead and make that argument. But don’t suddenly point to the problems of the no fly list and not do anything about them except block the gun control measure.

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Comments on “No Matter What You Think Of Gun Control, Relying On The No Fly List For Anything Is Monumentally Stupid”

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hij (profile) says:

Smart Aleces Need Not Apply

As I started to read the entry I was planning on posting a smart alec remark about how this might be the impetus to bring the process of maintaining the no-fly list one step closer to being a responsible activity. Then I got to the end about how some folks would rather just use the fact that it is not responsibly maintained as an excuse not to do anything. (And I mean not do anything.) Now I just want to rock back and forth and whimper. Government disfunction has become the norm to strive for and not just the expected result.

Anonymous Coward says:

While it’s nice that proposing tying gun control to the no fly list has caused some prominent people to start talking about some of the problems of the no fly list, all this really does is illustrate that Congress knows damn good and well how fucked up the no fly list is. They just don’t care to do anything to fix it. Probably afraid of being accused of supporting terrorists or something, assuming they aren’t just being lazy.

AJ says:

Re: Re: Re:

The no fly list is getting it’s ass kicked by the ACLU, the only thing adding guns to that list would do would be to hasten it’s demise. They’ve already won a partial victory, and I suspect it will eventually be tossed. The Fifth and Fourteenth Amendments prevent the “arbitrary denial of life, liberty, or property by the Government outside the sanction of law.” Adding guns to that list would be like throwing an anchor on a sinking ship.

Wendy Cockcroft says:

Re: Re: Re: Re:

‘Scuse me while I adjust my tinfoil hat, but if I’d been bullied into permitting a state of affairs to exist that violates my conscience I would try to find ways to sneak counter-measures under the radar.

Few people gave that much of a rat’s about the no-fly lists before gun control was added to the mix. Now it’s getting some attention.

Or perhaps El Presidente slipped up and is currently thinking “Dayyyum! Now we risk getting our no-fly lists scrutinised with due process and stuff!”

Given his record, though, I think the second scenario is more likely.

Anonymous Coward says:

well if the USG can put whoever they don’t like on that list without due process
and they have been working hard adding millioms of law abiding citizens to that list…
and they want to unconstitutionally disarm millions of us citizens specially the ones that USG likes to flag as constitutionalist, sovereigns etc…
then this proposal is not stupid, it is a brilliant step by step CHECK MATE

David says:

But this could be useful!

So far, people have no way to figure out whether they are on the no-fly list before trying to board. It saves you a lot of trouble if you, when in doubt, can just try buying a gun before buying a ticket. Cheaper and less hassle.

The problem is just that if you stay off the no-fly list long enough, you’ll be accumulating a whole lot of guns. But those are all-American, so you could just distribute them to school children to let them learn responsible gun play.

Anonymous Coward says:

Great idea!

Since the list seems to be a one way process of losing rights, lets nominate every single house and senate member to be added. They surely can be tied to more terrorist activities than the vast majority of other innocents on it and unlike everyone else, they can actually do something about getting the list invalidated since it exists outside of the law.

Anonymous Coward says:

Definition of slippery slope

I’m not even a firearm enthusiast and it’s frightening that a sitting president is calling for restricting constitutional rights so arbitrarily. As Mike said, the no fly list should be reformed, not expanded.

Given that the Bernardino shooters weren’t on the no-fly list, it makes you wonder where these talking points are coming from.

AW says:

Here's what I don't get...

The only right, righties care about is gun rights. The only right lefties care about is the right to not feel bad. No one in political power gives a darn about solving any real issues. The simple fact of the matter is that is people are suspected of being terrorists they should not be allowed to purchase firearms. If you cannot provide a valid reason for calling someone a terrorist then they shouldn’t be on a watchlist. Republicans could have used the opportunity to do something and didn’t. While we’re on rights…why can’t people who have served their time vote? why is there such a thing as a “Constitution Free Zone”? Why is civil asset forfeiture legal?

Plainly it sickens me what a joke our country has become that I’m working myself out of debt so that I can run for office. It’s a long term plan, but it’s a plan nonetheless. says:

Re: Re: people that are exited about Y do not get to access X

It wasn’t that long ago that there was an article about posters to Linux Journal were flagged as political extremists. I think it had to do with the overlap between Linux people also often being people concerned about maintaining security. If you’re concerned about security, then you are obviously potentially involved in undermining our governments’ efforts to undermine encryption. Sure, it’s people on the no-fly list now, and this concerns firearms, but what happens when you are doing something else Big Brother doesn’t like, and then Big Brother pushes to rescind a constitutionally-protected activity? This is not a single party issue, either. When it comes to undermining privacy and the security that secure encryption provides, think both parties. Among the most vocal have been Diane Feinstein (D) and Lindsay Graham (R).

Roger Strong (profile) says:

Re: Re: Here's what I don't get...

And if the police have suspicions but know they don’t have the evidence to convict? This is a very common situation even with more mundane crimes.

America spent the post-9/11 years kidnapping people on vague suspicions, jailing them, torturing them, and finding that the suspicions were groundless. And letting them go months, years or over a decade later with an “er, never mind.”

crade (profile) says:

Re: Re: Re: Here's what I don't get...

Agreed, but the point is that either someone is a terrorism suspect in the eyes of the law (and should be treated as such) or not you can’t have it both ways.

The argument here is that they can remove little freedoms here and there without having to show any specific reason at all. These people are not suspects, they aren’t being treated as suspects, they are just people that the govt doesn’t want to own guns, just in case they might be dangerous.


Re: Here's what I don't get...

Even being a suspect is no reason to strip someone of their rights. Even if this list weren’t such a joke it would be an inherent problem and it would be a problem to expand it’s scope.

Stripping someone of their rights based on mere suspicion is just not OK. It’s not American. It’s the kind of crap we’re supposed to be fighting against.

Lawrence D’Oliveiro says:

Re: Re: Even being a suspect is no reason to strip someone of their rights.

Shouldn’t that apply to all rights? Like, for example, the right to keep ordinary property?

How is it that seizing people’s money and houses and so on raises barely a murmur, yet suggest taking away their guns and suddenly you face such an uproar? Why is one right so much more sacred than all the others?

Roger Strong (profile) says:

Re: Re: Re: Even being a suspect is no reason to strip someone of their rights.

Fear-base politics.

It doesn’t matter that Obama is demonstrably pro-gun compared to say, Ronald Reagan and Bush I. Regardless of what the NRA used to be, its sole purpose today is to scream that the Democrats – and only the Democrats – and every Democrat in the future – are gonna take away everyone’s guns.

Asset forfeiture hasn’t developed into an issue associated with one party or the other, so there’s no election-level effort to crusade over it.

Roger Strong (profile) says:

Another Probem With The Idea...

The common element of stories about being on the no-fly list is that the first you hear about it is when you’re stopped from boarding a plane. Meaning that those who don’t fly anywhere may never know about being on the list.

So what happens when someone buys a semi-automatic rifle at a gun show – no background check – not knowing that they’re on the no-fly list? Have they committed a crime?

What if they inherit a shotgun or receive an AR-15 as a wedding present? Is the person they received it from now also a criminal? The closest thing to a way around this is to make the no-fly list searchable by ANYONE.

Since this could tip off the few real terrorists on the list, there would inevitably be a second, still secret no-fly list. The original one would be used only for guns.

Er, not just guns. It would treated as part of any criminal background check by potential employers, landlords, government services, and whatnot. Regardless of how you got on the list.

Anonymous Coward says:

Re: Another Probem With The Idea...

This “gun-show loophole” nonsense needs to stop. If you buy a firearm (non-NFA) from a private individual, federal law does not require a background check, though you are not allowed to sell to someone who you know to be or believe to be a prohibited person (there’s already a law against that). State law may require the transfer be conducted through a Federal Firearms License (FFL) holder.

If you buy a (non-NFA) firearm (using the federal definition) at a booth in a gun show, you are in almost every case buying from someone with a FFL, and you WILL have a background check (form 4473) run.

Why not call it the parking lot loophole or Larry’s house loophole? At least it would be less disingenuous (but still untrue; it isn’t a loophole).

Roger Strong (profile) says:

Re: Re: Another Probem With The Idea...

The “gun show loophole” is nonsense in the 18 states that require background checks. As for the rest, as the NRA says, there’s no loophole, just legal commerce under the status quo. Reporters have found that obtaining a gun at a gun show with no background check is trivially easy.

Yes, many people selling at gun shows are federally licensed dealers. That still leaves 10 to 40 percent (depending on whose figures you use) of firearms purchased via private sellers. Often at gun shows and often online, even with, as the NRA points out, no loophole.

My point stands. A lot of people will be obtaining guns without knowing that they’re on the list, unless the list is made public. And making the list public will create many problems of its own.

AJ says:

Re: Re: Re: Another Probem With The Idea...

Have you ever been to a gun show in the U.S.? I have been to several gun shows, from North Carolina to Florida in multiple cities and multiple states and I’ve made the following observations: 90% or better of the people selling guns are FFL dealers, the non FFL booths you stop at are usually a guy selling antique guns he’s collected from garage sale’s (rummage sales), or off post boards at gun shops and local clubs and the like. All of the guns for sale by these collectors can easily be found being sold by private individuals at estate sales, and local post boards at gun shops…. on top of that, I could call any number of my friends and have a semi auto assault rifle, and all the ammo I could afford, in my hands in a matter of a couple of hours without needing to go to a gun show at all. As a matter of fact we swapped gun collections to go to the shooting range all the time. It would be really tough to prevent someone from selling a rifle to a friend or relative, especially when you have millions of firearms already in circulation. It is and has been part of our culture.

Your point is valid: “A lot of people will be obtaining guns without knowing that they’re on the list, unless the list is made public. And making the list public will create many problems of its own.”

… But i would take it even further. Not only will they buy without knowing, they wouldn’t really care, and even if they did it would be trivial to get around it even without gun shows and background checks.

John Cressman (profile) says:

Gun control idiocy...

I completely agree. The no-fly list is complete idiocy and mostly fiction.

As far as gun control… that’s a bigger laugh. We have completely porous borders. As long as that’s the case and as long as criminals want guns, they’ll get them.

Funny thing about criminals… they don’t really care about the laws… and that includes gun laws.

Anonymous Coward says:

Considering they can strip search and X-ray your sorry behind, after the canines are through with you, what is the point? Still the home of the brave anyway. I stopped flying when they took away my pen knife, and when they questioned my carrying a loved ones mortal remains I kept my cool. Guess I still might fly again, someday, in an emergency.

Rapnel (profile) says:

Re: In The US Of A ...

I think it’s a natural right. Movement. Movement via any of the capabilities inherent to your era of existence and these limited only by an ability to pay (shoes, horses, autos or fares). Governments like very much to exert control over this natural right and they exercise it frequently.

Guilty before proven innocent, unfortunately, has come to us in all sorts of new shapes and sizes. Apparently it’s now OK to curtail the natural rights of “suspects”, among others. So much for what I thought law and order was supposed to mean. “All men are created equal” except for when my bird can take out your wedding party and.. “I do”

Anonymous Coward says:

Re: Re: Re:2 In The US Of A ...

Wrong, the airline are happy to take your money, but will not allow you to actually fly with the ticket they allowed you to purchase. They also fail to inform you that you won’t be allowed to fly until you get to the airport to begin the farcical security theater act. They then blame the government for putting your name on the list, but at that point, you have already missed your flight.

nasch (profile) says:

Re: Re: Re:3 In The US Of A ...

Wrong, the airline are happy to take your money, but will not allow you to actually fly with the ticket they allowed you to purchase.

Almost all airport security in the US is handled by the TSA, and as far as I know the rest of it is managed by airports, not airlines. If someone keeps you from getting on a plane, it won’t be the airline.

Anonymous Coward says:

Re: Re: In The US Of A ...

…I think it’s a natural right. Movement…

The US courts have upheld the concept of freedom of movement; I haven’t heard it described as a right.

The method however can be deemed a priviledge. Even without the security checkpoints an airline, train, taxi service, or bus operator can deny you access using the same principle that merchants reserve the right to deny service to anybody for any reason.

Anonymous Coward says:

Re: Re: Re: In The US Of A ...

The US courts have upheld the concept of freedom of movement; I haven’t heard it described as a right.

Kent v Dulles (1958)

The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment.

(Emphasis added.)

Now you’ve heard it described as a ”right”.

Lawrence D’Oliveiro says:

Re: Re: Re:2 shall not be construed to deny or disparage others retained by the people.

Then why does the US Constitution need to enumerate any rights, at all? Simply list the things that are forbidden, and leave it at that—everything else is permitted. Why mention some rights but not others, leaving it open to the interpretation that the rights that are mentioned are somehow more important than the ones that are not?

Anonymous Coward says:

Re: Re: Re:3 shall not be construed to deny or disparage others retained by the people.

“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.”

            ——Mr Madison, 1 Annals of Congress 456 (1789).

sorrykb (profile) says:

The only way to keep us safe

The greatest danger of them all is open communication.

If terrorists are allowed to talk to each other, they can plan to hurt us. If they are allowed to speak publicly, they might recruit followers. Therefore, terrorists cannot be permitted to speak.

But of course we cannot easily determine who might be a terrorist, so we must err on the side of caution.

No one should be permitted to communicate in any form — spoken, written, semaphore, etc. — without first being vetted. A simple screening process can determine each person’s level of access to the various methods of self-expression.

If it saves just one American life it will be worth it.

jilocasin (profile) says:

Too guilty to fly, not guilty enough to arrest.

The No-Fly list is simply a list of people that are too dangerous to allow to fly, but too innocent to actually arrest.

At the end of the day, it’s just an official list of people someone in the government doesn’t like, or that someone in the government negligently added to.

It’s just the more widely used version of Gitmo.

Another artifact of the;

“We must do something.”
“This is something.”
“Therefore we must do this.”

Anonymous Coward says:

Re: Too guilty to fly, not guilty enough to arrest.

At the end of the day, it’s just an official list of people someone in the government doesn’t like…

Joint Anti-Fascist Refugee Committee v McGrath, Attorney General, et al (1951)

MR. JUSTICE BLACK, concurring.

Without notice or hearing and under color of the President’s Executive Order No. 9835, the Attorney General found petitioners guilty of harboring treasonable opinions and designs, officially branded them as Communists, and . . .



James II, the last Stuart king of England, was driven from his throne in 1688 by William of Orange. After a brief sojourn at Saint Germains in France, James landed in Ireland where he was supported by those Irish Catholics who had suffered greatly at the hands of the English Protestants colonists. One of his first official acts was . . .

A list was framed containing between two and three thousand names. . . .

Historical perspective.

Anon says:

Re: Too guilty to fly, not guilty enough to arrest.

There’s also the allegation by some that the FBI used the coercion of putting people on the no-fly list if they failed to turn into informer/instigator for their mosque or social club. One fellow recounted how his sister had to fly to Canada and drive across the border to get home from visiting family in Indonesia, because he refused to cooperate with the FBI in encouraging some acquaintances to express radical views and report on them for the feds.

Anonymous Coward says:

The more I heare about how encryption is the DEvil Incarnate, the more inclined I am to believe that the people in power are actively encouraging terrorists to commit atrocities.

After all,t here’s a lot of evidence that says that a lot of those same people had forewarning of events such as Paris happening…and instead chose to do nothing.

Anon says:

Re: Half RIght

The statistic I saw was of the dozens of “terrorist plots’ broken up by the FBI, ALL of them were instigated by the FBI or its paid informants, verging on entrapment. The three major actual Islamic Radical plots that have happened in the USA – San Bernardino, Boston Maration, and the Mohammed cartoon competition in Texas – the FBI completely missed these real actual plots.

Nutcase... (profile) says:

Can't we just put everyone on the no fly list?

The simplest answer is to just put everyone on the no fly list, because it won’t trample anyone’s 2nd amendment rights that way. And think of the economic advantages? Amtrak will finally get the funding it needs for better Accela service?

Think of all the new train engines that GE and EMD will have to make to haul the new traffic? Or all the new cars that will be made to handle the increased load!

Think of all the land we’ll save from big empty airports than can be used for better purposes, like landfill! Think of how safe the american people will be without all those terrorist bombs-to-be going by overhead! Think of all the noise pollution saved from those darn airplanes taking off over my house that I just moved into two years ago. How dare they have a 50 year old airport fly over my house!

Think of finally getting Peter Pan and Greyhound back into competition, the prices will drop, bus travel will be glorious again!

Dan says:

Every politician knows how badly implemented the no-fly list is. But no one will challenge it, for the simple reason that they are all covering their asses. No one wants to be the one to blame for allowing a known terrorist to buy a one way ticket from Syria to New York.

We already see pro-privacy politicians being blamed for supporting robust encryption. We see pro-gun politicians blamed for every shooting.

It is also the same with the TSA security theater, or closing Gitmo. We’re one major terrorist attack away from blaming every civil libertarian for allowing the attacks.

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