Defenders of the ACLU argue that all Americans should support the group’s efforts to defend civil liberties and protect the Constitution. Critics respond that the ACLU spends its time defending the parts of the Constitution it likes, but otherwise it’s not terribly interested and sometimes outright hostile. That’s especially true for the right to bear arms — and perhaps for the 6th and 7th Amendments, too:
The American Civil Liberties Union sees no constitutional problem with preventing people on the watch list from buying guns, for example. But the means by which they are placed on the list, and their options for clearing their names, must be more transparent.
Congress recently voted down legislation to prohibit those on terrorism watch lists from buying firearms. President Barack Obama backed the effort in an Oval Office speech on Sunday night.
The legislative fight prompted contretemps from some leading voices of the intellectual left that had, until recently, warned of terrorism watch lists’ fundamental constitutional problems.
“There is no constitutional bar to reasonable regulation of guns, and the No Fly List could serve as one tool for it, but only with major reform,” said Hina Shamsi, director of ACLU’s National Security Project, in an emailed statement.
Er, what? The issue here isn’t whether government can legislate “reasonable regulation of guns,” but whether the government can suspend constitutional rights without abiding by the Bill of Rights.
The no-fly list is by its nature merely a collection of people whom the government suspects of criminal activity. The only major reform possible would be to actually charge these suspects and prove their case in court, which would make any “list” irrelevant. When it comes to suspending a right explicitly provided in the Constitution — not just access to airlines — the government should have to comply with the due-process restrictions in the Constitution as well. That includes the 6th and 7th Amendments protections of a trial by jury and the right to see all of the evidence and confront all of the witnesses the government uses to propose denying those rights.
Let’s put this in a different context. The ACLU likes to point out that it defends unpopular positions by reminding people of their defense of the National Socialist Party of America’s (NSPA, a neo-Nazi group) right to peaceably assemble in Skokie, Illinois and march with swastikas in an attempt to humiliate the significant Jewish community there. Would the ACLU have switched sides if the government had argued that their secret list of potential domestic-terrorism threats included the NSPA’s leadership and/or several members who would be expected to participate (certainly a possibility), and therefore they had to be restrained from peaceable assemblies as guaranteed by the First Amendment? If not, how is this position any different? Part of the city’s argument in that case was that violence would be likely to occur, so it was also a question of public safety — and yet the ACLU correctly stood on the side of the Constitution.
Or, let’s use an example closer to today. France shut down three mosques last week (Jazz will have more on this later today), based on “a pattern of radicalization.” Will the ACLU cheer that action in the US if the government claims that the leaders and/or the followers in a mosque are on the no-fly list but never charge anyone in relation to that? What kind of “major reform” of the no-fly list would make them support its use in closing down mosques … or synagogues … or churches? For “public safety” and/or “national security”? If none short of a public trial that again would make a “list” irrelevant anyway, then why would they support its use for denying other constitutional rights?
When it comes to the Second Amendment, not only can’t the ACLU be bothered to defend it (and due process guarantees of the 6th and 7th Amendments), they’re willing to torpedo the right to bear arms. It’s that kind of hypocrisy that generates animosity toward the ACLU, and reveals them to be not civil-liberties champions but an activist group for progressive causes.
Basically, the ACLU is endorsing a Precrime Division in federal law enforcement, for those who saw the film Minority Report. In my column today for The Week, I reference the film in arguing that not only is this approach an affront to the Constitution and due process, it’s also a complete non-sequitur when it comes to public safety:
Nothing requires the federal government to actually charge people on this list. Nor are there requirements to remove people even if they have been acquitted of charges relating to terrorism, as The Intercept discovered when they acquired the procedure manual for the no-fly list. “The rulebook justifies this by noting that conviction in U.S. courts requires evidence beyond a reasonable doubt, whereas watchlisting requires only a reasonable suspicion,” Jeremy Scahill and Ryan Devereaux reported. “Once suspicion is raised, even a jury’s verdict cannot erase it.”
The courts have stepped in to stop this process. In June 2014, a federal judge ruled the process unconstitutional, a violation of the Fifth Amendment rights. Now Obama and his fellow Democrats want to use this unconstitutional process to deny Second Amendment rights too, and apply it to people who have never been charged or even perhaps questioned about the risk they supposedly represent.
And for what purpose? Which of the terrorist attacks cited by Obama in his speech — which included two he had never before acknowledged as such, the Fort Hood shooting and the Chattanooga attack on a military recruiting office — would a no-fly gun ban have prevented? None of them. None of the suspects were on the no-fly list. Farook and Malik flew last year with no problems, and Fort Hood terrorist Nidal Hasan was still in the Army. In fact, even after Russia warned the FBI about Boston Marathon bomber Tamerlan Tsarnaev in 2011, the U.S. allowed him to fly to Russia and back in 2012.
In other words, the no-fly list is not just unconstitutional, it’s also a red herring. Democrats want to change the subject from the failure of this administration to prevent these attacks. When government feels the need to strip Americans of their constitutional rights — including the right to bear arms — they should prove their case in court while allowing for full due process. That is precisely why our founders wrote the Constitution in the first place: to protect a free people against the whimsy of tyrants. And it doesn’t take a soggy precog to predict that the threat won’t stop with the Second Amendment, either.
It doesn’t take a soggy precog to predict the ACLU’s position on this, either.
Update: My good friend and guest blogger Gabriel Malor asks a fair question:
@EdMorrissey Isn't ACLU's statement that the list can only be used if due process protections are added?
— Gabriel Malor (@gabrielmalor) December 9, 2015
The ACLU argued that they want due process protections added too, but that gets things backward. A no-fly list, even with opportunities to challenge one’s status and gain removal, still operates as a guilty-until-proven innocent mechanism. Furthermore, even assuming one gets to challenge this and cross-examine witnesses (which doesn’t seem likely), it would still be a citizen suing to regain his constitutional right that was taken from him without a government conviction. And what would be the evidentiary level needed to restore one’s rights? Preponderance? Reasonable doubt? In which direction?
The only legitimate method for denying an explicit and foundational constitutional right is for the government to go to court and establish the facts beyond a reasonable doubt first, allowing the accused all of the protections that the Bill of Rights and precedent allow in prosecutions. And once you have that, what purpose does a no-fly list serve at that point? The no-fly list wouldn’t be the basis on which to deny any rights at all; a court decision would be that basis. And that should be the only basis on which to deny those rights.
Update: Be sure to read Gabriel’s excellent article on the no-fly list at The Federalist, too.