Speaking to the nation from the Oval Office Sunday, President Barack Obama urged lawmakers to pass what seems like a common-sense piece legislation.
“Congress should act to make sure no one on a no-fly list is able to buy a gun,” he said. “What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon?
To hear both Republicans and civil-liberties groups tell it, the argument against such legislation stems from the fact that the list is arbitrary, error-prone, and full of innocent people with the misfortune of having names similar to those of actual terrorist suspects. In 2004, for instance, then-Sen. Ted Kennedy (D-Ma.) said he was blocked from boarding planes several times because he was mistakenly on the no-fly list, which was created after the 9/11 terror attacks.
That makes the list one of the extraordinarily small number of issues where staunch conservatives and the ACLU find common ground.
“It’s highly error prone and it does not include safeguards meant to reduce errors,” said Hugh Handeyside, a staff attorney in the ACLU’s National Security Project. The civil liberty group is currently in a legal fight with the federal government over the process for being removed from the list, arguing it is unconstitutional. Right now, those on it can submit an appeal to the Department of Homeland Security, but are not entitled to an in-person hearing or to call witnesses to defend their character.
Republicans use similar arguments when pushing back against Obama’s call for barring Americans whose names appear on the list from buying weapons. gun restrictions connected to the list. Last week, the Senate blocked a bill, by a vote of 54-45, that would bar people on the no-fly list from buying guns.
“The majority of people on the no-fly list are often times people that basically just have the same name as somebody else who don’t belong on the no-fly list,” Sen. Marco Rubio of Florida, who is running for president, said on CNN’s “State of the Union” Sunday. “That’s not a perfect database.”
Rubio mistakenly said the restrictions would apply to 700,000 people who are reportedly in the U.S. Terrorist Screening Database. The president only wants to limit the sale of guns to those on the no-fly list.
The list itself, which is administered by the FBI’s Terrorist Screening Center, is shrouded in mystery. The federal government won’t reveal who is on it unless the person on it asks. The government also won’t reveal how large it is. In a statement to FP, Dave S. Joly, Terrorist Screening Center spokesperson, said the center doesn’t confirm or deny who is on the list. He said doing so “would significantly impair the government’s ability to investigate and counteract terrorism, and protect transportation security.”
News reports and leaked documents indicate that individuals convicted of acts of terror are on it. Travel to certain countries where there is terrorist activity can also get someone banned from flying in the U.S., as can social media posts that suggest anti-American sentiments. According to the Intercept, 47,000 people are on it. Obama, according to the report, has increased the number of people on the list tenfold since taking office.
There’s a well-documented history of errors connected to the list. In 2004, a clerical error — an FBI agent checked the wrong box on a form — got Rahinah Ibrahim, a Malaysian with a valid student visa who was studying at Stanford, banned from U.S. flights. It took a decade to correct the mistake.
The ACLU lawsuit was filed on behalf of 13 people on the list, including four U.S. military veterans. According to Handeyside, the lack of in-person hearings for those on the watch list violates the Constitution’s Fifth Amendment, which promises due process.
“The process is constitutionally inadequate,” he said. “It doesn’t provide reasons for being included, underlying information about the individual, nor does it include a live hearing before a neutral decision-maker where someone can clear their name and get off the list.”
Republicans and the ACLU don’t agree on much. The fact they see eye-to-eye on the no-fly list suggests it’s a far from perfect way of ensuring that guns don’t fall into the wrong hands.
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