The following by SMU Law Professor Jeffrey Kahn first appeared in the July 1, 2016, edition of The New York Times. Kahn, who teaches and writes about American constitutional law, Russian law, human rights, and counterterrorism, is the author of Mrs. Shipley’s Ghost: The Right to Travel and Terrorist Watchlists.
July 1, 2016
By Jeffrey Kahn
SMU Dedman School of Law
After the mass shooting in Orlando, Fla., some legislators are seeking to create a “no buy” list to block certain people from purchasing guns. Last month the Senate considered (but voted down) measures that would have prevented gun sales to anyone in the federal Terrorist Screening Database, a.k.a. the terrorist watch list. And while a proposal by Senator Susan Collins, Republican of Maine, to deny sales to anyone on the government’s no-fly list did not pass last week, it was not voted down either, offering supporters hope.
But Senator Collins’s proposal, like the earlier effort to create a no-buy list, ought to fail. Such measures would have a much smaller effect on gun sales and do much more harm to civil liberties than people realize.
Very few people on the terrorist watch list, which is estimated to include at least 800,000 identities, are buying guns. According to a report in March from the Government Accountability Office, out of the 23.1 million background checks conducted last year in accordance with federal gun laws, only 244 involved people on the watch list. That’s 0.001 percent of checked sales.
As for the no-fly list: According to an estimate provided by the director of the Terrorist Screening Center in 2014, about 9 out of 10 identities on that list are neither United States citizens nor lawful residents. Thus, they are already largely unable, or not permitted, to buy guns here.
Since the no-fly list is created from the larger watch list, presumably an even lower percentage of people on it are seeking guns. (The Collins bill would also cover people on the so-called selectee list, who are subject to additional airport screening, but the effect on gun sales would seem to be similarly small.)
Of course, you might think that eliminating even just one gun sale to a suspected terrorist is worth the effort. But that assumes these lists should be trusted in the first place. And they shouldn’t be.
The threats that the terrorist watch list and no-fly list pose to civil liberties — indeed, to the very idea of citizenship — are enormous. Watch lists are designed to circumvent the protections of due process and the separation of powers. They subvert a principle of our free society: Our rights aren’t held on loan until a government official labels us suspect, at which point they are easily stripped away; our rights are ours unless and until a court concludes that we have violated the law.
This is not the case with a watch list, which relies on the predictive judgments of anonymous analysts predisposed to err on the side of caution. Their job is to stop something horrible from happening. Why would they be inclined to err the other way? Their decisions require no judicial approval, and their standard for labeling someone a suspected terrorist to be watch-listed is very low, a mere “reasonable suspicion.”
As one federal judge noted in a case involving a plaintiff’s challenge to being placed on the no-fly list, “an American citizen can find himself labeled a suspected terrorist because of a ‘reasonable suspicion’ based on a ‘reasonable suspicion.’ ”
Some people who are tempted by watch lists but reluctant to deprive people of rights without due process propose combining them with the procedures used for search warrants or wiretaps. Why not just open up the watch list process to a judge who can assess these determinations? If it’s good enough for the Fourth Amendment, isn’t it good enough for the Second?
But this analogy doesn’t work. The low standards and one-sided nature of warrant requests are only the first step in a longer, public, adversarial process. They satisfy public safety needs to investigate and stop suspected crimes, but this is followed by an opportunity for a trial with a higher burden of proof and a meaningful chance to confront and respond to the state’s evidence.
There is no such second step for “reasonably suspected” suspected terrorists. That’s what makes watch-listing so attractive in the first place and why the government has fought to keep its system free of judicial oversight. Senator Collins’s bill attempts to remedy this problem by offering expedited access to courts.
But the standards of review would remain low, with the government free to use classified evidence. The end result would remain Kafkaesque: How do you prove not that you aren’t a terrorist, but that you shouldn’t be a suspected terrorist?
Don’t expect a no-gun list to be the stopping point. We already have a no-fly list, and there is also a no-maritime list (because the destruction of a cruise liner at sea is no less terrifying than terrorism in the skies). A suicide bomber in a sports stadium could spawn a “no Super Bowl” list. A “no X” list will always tempt lawmakers. But rights lose their value when they can be emptied of meaning by an easily affixed terrorist label.
Supporters dismiss the costs of watch lists as inconveniences, trade-offs warranted by the protection they provide us from a deadly rampage. Such sentiments — typically advanced by those unlikely to bear the burden of being labeled a suspected terrorist — trivialize the liberty lost.
“Experience should teach us,” Justice Louis D. Brandeis wrote in 1928, “to be most on our guard to protect liberty when the government’s purposes are beneficent.”