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Law & the Courts

The Reid-Clinton-Trump Pre-Crime Proposal Doesn’t Go Far Enough

Panic makes strange bedfellows.

In the wake of Sunday’s terrorist attack in Orlando, Florida, the Democratic party has resuscitated its attempt to strip those placed on the “terror watch list” of their Second Amendment rights. And, rather predictably, Donald Trump seems keen to go along for the ride. Per Politico:

Donald Trump will meet with the National Rifle Association to discuss preventing people on the terror watch list or no-fly list from buying guns, he announced Wednesday.

“I will be meeting with the NRA, who has endorsed me, about not allowing people on the terrorist watch list, or the no fly list, to buy guns,” Trump tweeted Wednesday.

It’s rare to see a group as superficially diverse as Harry Reid, Hillary Clinton, and Donald Trump lined up squarely against the NRA and the ACLU. But here we are, I guess. Never mind that the killer in Orlando was not actually on the terror watch list when he bought his weapons. Never mind that the killer in San Bernardino wasn’t either. And never mind that progressives spent the post-9/11 years arguing that to use secret lists to deprive people of their civil rights was to spit in the face of the Fifth Amendment and the then-cherished American way. It’s “do something time,” and that requires maximum demagoguery coupled with the sort of unhinged, do-you-support-the-terrorists? bipartisanship that brought the United States such cherished initiatives as Prohibition, the Palmer Raids, and the Patriot Act.

I shan’t re-rehearse my case against the civil use of terror watch lists here; those interested can read my three offerings from last year here and here and here. But I will suggest a modest course for those in Congress who remain opposed to this folly: Why not amend any bill so that it covers the entire Bill of Rights? Hillary Clinton is on record suggesting that the United States should impose some censorship on the Internet so that would-be terrorists cannot communicate with one other. Well, if the prospect of terrorists using the internet really is that dangerous — and if those who oppose Clinton’s coveted reforms are just dogmatically wedded to outdated concepts such as “freedom of speech, et cetera . . .” – then there shouldn’t be any problem with the federal government preventing anybody suspected of terrorism from using a modem, should there? Sure, at one point in American history it made sense to require due process before we stripped core rights. But that was back in the days of pamphlets and printing presses, not now when one can spread information across the world in the blink of an eye.

In the same vein, it seems clear that freedom of religion should be restricted to those whose names the FBI has not put in its database. As Donald Trump has explained, radical mosques lead directly to the sort of attacks we’ve seen at home and abroad; surely he doesn’t think that those under suspicion should be permitted to worship with impunity? And freedom of association? That’s out, too. After all, as Harry Reid observes, those who are unprepared to restrict the constitutional rights of American citizens will “in part be responsible for every terror attack” we see in the future. To avoid such culpability, all right-thinking people should consider imprisoning those who invite the attention of law enforcement without the technicality of a trial.

The Fourth Amendment has to go. As ThinkProgress has observed, there is “one response to the Orlando shooting both presidential frontrunners support”: increased surveillance. But, because of pesky slaveowning-era requirements such as “warrants” and “probable cause,” the FBI is unable to really get stuck into those it believes would harm Americans. That simply won’t do. Hillary Clinton wants “better intelligence to discover and disrupt terrorist plots before they can be carried out,” while Donald Trump wants to “give our intelligence community, law enforcement and military the tools they need to prevent terrorist attacks.” What better way could there be of achieving this than creating an exemption for those under suspicion? Sure, the extremist ACLU might bleat a little about “due process” and “the rule of law,” and out-of-touch writers will propose that this sounds oddly like the imposition of a “pre-crime” standard. But those people will have blood on their hands next time there’s an attack. Only by ensuring that the Constitution doesn’t apply to anybody under suspicion will we finally throw out our fetishization of outmoded eighteenth-century ideas, and close the “terror gap” once and for all.


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