Tying Rights To Useless 'Terrorist Watchlists' Is A Terrible Idea

from the the-right-to-remain-rightless dept

No matter how you may feel about the Second Amendment or firearms themselves, there's no way you can feel comfortable with access to Constitutional rights being predicated on something as worthless as the government's ever-expanding "you might be a terrorist" lists.

But that's what's being sought by legislators. In the wake of the Orlando shooting, politicians are searching for answers to unpredictable violent acts, and have seized on the FBI's multiple investigations of the shooter as a potential terrorist for deciding who can or can't obtain a gun. A "dramatic" sit-in by Congressional reps hoped to force the issue, even though it ended up pushing nothing forward at all.

Some legislators want gun ownership tied to terrorist watchlists -- the same watchlists that have turned 4-year-olds into suspected terrorists and designated entire families as suspicious simply because a single member somewhere in the branches of the family tree is under investigation.

This kneejerk reaction not only would eliminate rights but also any form of due process. As it stands now, there's very little chance anyone wrongly designated as a suspected terrorist by the US government will be able to remove themselves from these lists. A recent court decision about the TSA's "no fly" list has at least raised the redress procedure to "extremely difficult" from its previous status as "nonexistent."

But that's only one of the government's terrorist watchlists. Another watchlist contains thousands of Americans with no known ties to any terrorist group. The fact that these known unknowns comprise 40% of the watchlist is only part of the problem.

As we've seen from the FBI's neverending series of terrorist investigations, the government is more than happy to create all the "terrorists" it needs to ensure a steady flow of income to certain agencies and a steady decline in civil liberties for the rest of us.

Even if the list used to deny gun purchases is limited to those deemed too dangerous to board an aircraft (but not dangerous enough to arrest), rights will be denied to thousands who've never done anything wrong. The no fly list is a debacle as anyone but the TSA (and those pushing this legislation) will admit. The no fly list has, in the past, contained both people no one would normally consider unfit for gun ownership (Sen. Ted Kennedy, Rep. John Lewis), as well as an 18-month-old toddler. Accurate, it is not, and yet, legislators are more than willing to strip a right away from citizens based on an incredibly flawed database. Logic has no place in gun control arguments, though, as Rep. John Lewis is one of the legislators leading the charge, even though he should know personally how worthless and inaccurate the no fly list is.

What's even more disconcerting is the number of politicians who believe multiple rights should be stripped from those on watchlists. Senator Joe Manchin actually let these words tumble out of his mouth during an interview with MSNBC.

Really, the firewall we have right now is due process. It’s all due process. So we can all say we want the same thing, but how do we get there? If a person is on a terrorist watch list, like the gentleman, the shooter in Orlando? He was twice by the FBI — we were briefed yesterday about what happened — but that young man was brought in twice. They did everything they could. The FBI did everything they were supposed to do. But there was no way to keep him on the nix list or keep him off the gun-buy list, there was no way to do that.

So can’t we say that if a person’s under suspicion there should be a five-year period of time that we have to see if good behavior, if this person continues the same traits? Maybe we can come to that type of an agreement, but due process is what’s killing us right now.

Due process is "killing" Americans. And he's not the only one who feels this way. Senator Dianne Feinstein believes Americans are born with only one inalienable right: the right to earn their other rights by "proving their innocence."

Dems now expect Americans to "prove your innocence" before taking advantage of Constitutional rights.

All the while, legislators are tossing out catchy slogans like, "No Fly, No Buy" with zero awareness of the implications of that action. Others claim such a law would have prevented the Orlando shooting, similarly unaware of the fact that the shooter wasn't on a terrorist watchlist when he purchased his guns.

If lawmakers want to prevent suspected terrorists from purchasing guns, they need to base this on something far better maintained and narrowly defined than our current terrorist watchlists. The ones we have operate as dragnets -- bulk surveillance but for human beings. These lists already eliminate due process. They shouldn't be used to further diminish citizens' rights just because the perpetrator in the latest mass shooting was the subject of a terrorism investigation.

Filed Under: dianne feinstein, due process, guns, john lewis, no fly, terrorism, watch list

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.

Filed Under: due process, gun control, marco rubio, no fly, no fly list, paul ryan, president obama, terrorist watch list

The Crazy Redactions Of The No Fly List Decision: The Kafkaesque 'On-Off-On' Redactions

from the dig-in dept

So, we already highlighted the key information revealed and the newly unredacted version of the court's ruling in the Rehinah Ibrahim "no fly list" case (namely: that the US has a "secret exception" by which it can put people into the terrorist screening database despite no "reasonable suspicion" that they're a threat). However, seeing as we had noted some of the bizarre redactions in the original, and now that we have the unredacted version, I figured we could look at some of the more bizarre redactions now that they've been revealed. Let's start with what might have been the most hilarious redaction from the original If you can't read it, it's:

Given the Kafkaesque [REDACTED] treatment imposed on Dr. Ibrahim, the government is further ordered expressly to tell Dr. Ibrahim [REDACTED] (always subject, of course, to future developments and evidence that might [REDACTED]). This relief is appropriate and warranted because of the confusion generated by the government's own mistake and the very real misapprehension on her part that the later visa denials are traceable to her erroneous 2004 placement on the no-fly list, suggesting (reasonably from her viewpoint) that she somehow remains on the no-fly list.

Now those redactions have been uncovered, and here's what we see (with the redacted portions in yellow): And the text version, with redacted portions underlined:

Given the Kafkaesque on-off-on-list treatment imposed on Dr. Ibrahim, the government is further ordered expressly to tell Dr. Ibrahim that she is no longer on the no-fly list and has not been on it since 2005 (always subject, of course, to future developments and evidence that might warrant reinstating her to the list). This relief is appropriate and warranted because of the confusion generated by the government's own mistake and the very real misapprehension on her part that the later visa denials are traceable to her erroneous 2004 placement on the no-fly list, suggesting (reasonably from her viewpoint) that she somehow remains on the no-fly list.

Many people rightly mocked the original version as the Kafkaesque nature of the situation appeared to be increased by that particularly hilarious looking redaction. Of course, now having seen all the redactions, we can see the true reason behind it. It appears that, despite all of this, Ibrahim is still in the Terror Screening Database (TSDB), for some secret reason, even though everyone admits she's no threat. And that secret reason is apparently unrelated to the original mistake.

In other words, the purpose of all those original redactions was to misleadingly suggest that Ibrahim had been cleared from all lists, but the "on-off-on-list" aspect was actually hidden in the redacted version. Now that it's all been revealed, reading between the lines, we see that Ibrahim is only being cleared from some lists and databases, while remaining in others that likely prevent her from ever returning to the US. In other words, the redactions were created to mislead the public into believing that Ibrahim has been totally cleared, when the reality is she's still in the same basic position -- other than the fact that she now knows she's in the TSDB rather than the no fly list, which she was removed from all the way back in 2005.

Still, other redactions seem equally bizarre. Take this one: The unredacted version says:

Government counsel has conceded at trial that Dr. Ibrahim is not a threat to our national security. She does not pose (and has not posed) a threat of committing an act of international or domestic terrorism with respect to an aircraft, a threat to airline passenger or civil aviation security, or a threat of domestic terrorism. This the government admits and this order finds.

Why was that redacted? Perhaps the government thought the reasons someone might be put on the list needed to be secret? But, did anyone doubt that any of the things listed above were considered reasons why you might be put on the no fly list or the terrorist screening database? This identical redaction was done later in the ruling as well, again enforcing the idea that the government sought to hide the fact that you have to be a threat to one of those three things to be placed on the lists. But it also hid the fact that even if you were not one of those things, you can still be placed in the Terrorist Screening Database for a "secret exception" to the reasonable suspicion requirement.

Another bizarre one, concerning an attempt in 2006 to have her removed from all lists: The unredacted version:

In a form dated February 10, 2006, an unidentified government agent requested that Dr. Ibrahim be "Remove[ d) From ALL Watchlisting Supported Systems (For terrorist subjects: due to closure of case AND no nexus to terrorism)" (TX 10). For the question "Is the individual qualified for placement on the no fly list," the "No" box was checked. For the question, "If no, is the individual qualified for placement on the selectee list," the "No" box was checked.

Can anyone explain why this was redacted? It makes no sense at all.

There is also a lengthy discussion of how the US blocked Ibrahim's daughter, Raihan Binti Mustafa Kamal, from flying to the US for the trial and then lied about it. We noted how bizarre it was that Judge William Alsup's entire discussion of what happened there was redacted. Now seeing the full version, it is, once again, entirely unclear why it was redacted in the first place. The unredacted parts do show more screwups by the US, in which Homeland Security falsely flagged Kamal based on rules that are not supposed to apply to US citizens, even though she is a US citizen. In fact, it notes that Customs and Border Patrol realized in six minutes that she was a US citizen, but then there was a series of other confusions that resulted in her not being allowed to board the flight.

Unfortunately, despite considerable anger on Judge Alsup's part, when all of this came out, it appears that, in the end, he did nothing about this, other than make sure that Kamal's own record in the TSDB was "updated... to reflect that she was a United States citizen."

In the end, the revelation of these redactions do reveal that Ibrahim still appears to be unable to come to the US, and also suggests that the US government tried to use redactions to hide this fact -- allowing the public to believe that Ibrahim had been entirely cleared, when she had not been. It also sought to hide, as mentioned in our earlier post, that the DOJ has some "secret exception" that allows them to basically destroy someone's life, even if there's no reasonable suspicion that they're a terrorist threat of any kind.

Filed Under: kafakesque, no fly, no fly list, rahinah ibrahim, redactions, tsdb

German Author And NSA Critic Says He Was Barred Entry Into The US

from the because-fuck-you-that's-why dept

German author Ilija Trojanov, an outspoken critic of the NSA's surveillance efforts, is claiming that he was just barred from entering the US. He was in Brazil, and was intending to head to Denver for a conference, but discovered some problems at the airport:

"The airline worker had hardly entered my name when she paused, stood up and disappeared without explanation behind a door," he wrote.

"A few moments later she returned with clearly a high ranking person who told me in rapid Portuguese and then almost as quickly in English that because of "Border Crossing Security" she was duty bound to inform American authorities immediately about my arrival at the airport.”

Three-quarters of an hour before his flight was due to leave Trojanov was told he would not be allowed to travel.

The US is already unfortunately infamous for just how difficult we make it for foreigners to visit the US (not to mention letting our own citizens back into the country). There could be many reasons why Trojanov was barred from flying, but this kind of thing is happening all too frequently, and certainly suggests a level of ridiculous pettiness on behalf of the US government, rather than any legitimate security reasons for barring some people from flying or entering the country.

Filed Under: ilija trojanov, no fly, nsa, nsa surveillance, us

Time To Get Rid Of No Fly List Altogether?

from the from-the-mainstream-press? dept

We recently noted that some members of the "no fly" list are suing the US government, questioning why they're "too scary to fly, but not scary enough to arrest," and complaining that there's simply no way for them to even find out why they're on the list or to get off the list. That's resulted in a Chicago Tribune editorial suggesting we dump the "no fly" list altogether. In fact, the editorial goes even further, saying we should go back to letting people fly without having to show a government-issued identity. The argument is that this is really security theater, and there are lots of other things in place that would likely stop a terrorist attack:

What no one seems to notice is that other improvements in security have made this one a needless burden.

The government required airlines to install reinforced cockpit doors to keep hijackers from taking the controls. It tightened security rules -- banning penknives, lighters, ski poles, snow globes, and liquids except in tiny bottles.

It initiated random pat-downs of travelers and gave extra scrutiny to those who did suspicious things. It deployed thousands of armed air marshals.

Equally important, travelers changed their mindset, meaning that terrorists can no longer count on passive victims. On several occasions -- starting with United Flight 93 on 9/11 -- passengers have acted to foil attacks.

With all these layers of protection in place, the rationale for the no-fly list has crumbled. Even if someone on the list can get on a plane, his chance of taking it over or bringing it down is very close to zero. And you know the other good thing? The same holds for an aspiring terrorist who doesn't make the list.

The government's tedious insistence on identifying all travelers and grounding some may convey an illusion of security. But we could live -- and I do mean live -- without it.

I have to admit I'm surprised to see an editorial like this in a mainstream publication like the Chicago Tribune. And while I agree that the no fly list is a joke, it should be admitted that many of those other "improvements in security" are equally as ridiculous, so citing them as the argument alone isn't very convincing.

Filed Under: civil rights, no fly

No Fly List Members Sue The Gov't; Want To Find Out Why They Can't Fly

from the national-security dept

Apparently ten people who claim that they're on the official US government "No Fly" list have sued the US government, claiming that it's illegal to be on such a list where there's no way for them to confront their accusers or get themselves off of the list. Some of the people in the lawsuit are US citizens and military veterans. There's a great quote about how these people are "too scary to fly but not scary enough to arrest." It does seem like a valid question, but legally I doubt the case will go anywhere. The government will claim national security, and that will basically be that.

Filed Under: civil rights, no fly

Legislation Looks To Create Better Redress System For No-Fly List, But Doesn't Really Define Better

from the heart-in-the-right-place dept

A big part of the TSA's security theater is the much-talked-about no-fly list. The only thing about the list is that it makes many more headlines for stopping five-year-olds and well-known US Senators than it does for actually stopping terrorist attacks. As has been pointed out before, it seems fairly unlikely that anybody intent on carrying out an attack would do so under their real name. Once you're on the watchlist, it's very difficult to get off, but a new bill passed in the House directs the Department of Homeland Security to establish a "timely and fair" redress system to replace TSA's often-criticized efforts. The bill doesn't clearly define how the process should work, apart from requiring the DHS to establish a whitelist of people who were on the no-fly list, but have proven to the government they're not terrorists. How does one do that? Your guess is as good as ours.

Filed Under: no fly, tsa