The security theater of the post-9/11 age has become practically a joke, with no better example than the No Fly List. Getting on the list is usually a simple matter of sharing a name with a person of vague interest to the authorities — and that name is often the Asian or Middle Eastern equivalent of “John Smith.”
What makes the list particularly pernicious is that it is almost impossible to get off it. Sure, some more famous listees, like Ted Kennedy, were able to . . . but if you don’t have an ear in the highest echelons of government, you’re likely to be stuck. As the title suggests, people on the list are not allowed to engage in air travel, which in many cases translates to an inability to travel at all. (Imagine being a Hawaiian or Alaskan on the list. Or perhaps an American abroad.)
I ought to reiterate: To be on the list does not mean you have been charged with or even suspected of a crime. It is, essentially, an automated sorting mechanism for foreign-sounding names. As such, it has rightly been condemned by civil libertarians and, indeed, during the Bush years, by Democrats (and rightly so, if only for partisan reasons).
Like many things, this changed when Democrats took office. In mid 2016, a motley crew of political figures, including Barack Obama, Hillary Clinton, Bernie Sanders, and (NRA-endorsed) Donald Trump, with wide bipartisan support, declared that the list should translate to a stripping of Second Amendment rights as well. The proposal was pithily labeled “No Fly, No Buy.”
To put it plainly, the legislation would, without due process, strip basic rights from innocent people (most of them ethnic minorities) who have never even been suspected of a crime. Realizing that the idea would not fly if they described it plainly, Democrats started calling the people they had been defending just a few years earlier “potential terrorists,” in the Newspeak of Bernie Sanders.
I’d love to get a definition of “potential terrorists” at some point, if that’s going to be a legal category now. https://t.co/Cke2IdDWk4
— Glenn Greenwald (@ggreenwald) June 20, 2016
This makes a mockery of the Fifth Amendment, and though Susan Collins emphasizes that the lists have shortened, that does not change the fact that people would still see their constitutional protections revoked en masse.
The legislation is back, renewed in this session by Senators Jeff Flake (R., Ariz.), Angus King (I., Maine), Susan Collins (R., Maine), Pat Toomey (R., Pa.), Martin Heinrich (D., N.M.), Bill Nelson (D., Fla.), Tammy Baldwin (D., Wisc.), Heidi Heitkamp (D.,N.D.), and Joe Manchin (D., W.Va.)
Manchin, you might remember, declared war on constitutional protections last time around, saying, “Due process is what’s killing us right now.” This time, like last time, the president is on board with the legislation — but where partisanship helped nip it in the bud in 2016, the presence of a Republican president might cause it to play out very differently.
I am not on the No Fly List and I am not a gun owner, but I take this move personally. If my first name had been a slightly more common one such as “Imran” (like that of the famous cricketer), I might have ended up on such a list and been unable to get off it — effectively barred from travel, self-defense, and whatever the weaponized list would be turned to target next.
So now, in the lexicon of the leading liberal lights of the Democratic Party, someone deemed by the U.S. government to be suspicious — placed in secret on a list, with no evidence presented and no court process — is the equivalent of “ISIS.” And to demand due process be accorded — says this Harvard Law Professor — is to arm ISIS.
Warren’s attack on Muslims and civil libertarians was laughable — par for the course with her — but it broke my heart to see John Lewis, whose memoirs of the civil-rights movement I grew up reading, lead the charge for an attack on the civil rights of minority communities, reversing hard-fought victories in the name of political partisanship.
This is an attack on Second Amendment rights, but the fundamental question is not about guns.
The measure was shameful, authoritarian, racist, and nakedly unconstitutional in 2016, and it is no better today. But with even more force to its bipartisanship this time around, it might stand a stronger chance of passing.
This is an attack on Second Amendment rights, but the fundamental question is not about guns, and gun-controllers ought to be aware of this. If a precedent for stripping away part of the Bill of Rights from people arbitrarily is created, that power will undoubtedly be exercised to remove other parts, too. Due process is the mechanism that a free society is built on. Without it, there is little that stands in the way of tyranny.