ABC: Say, there are serious due-process concerns in so-called "watch lists"

No kidding. At least ABC News seems willing to look at the dark side of the suddenly popular notions of denying citizens their constitutional rights on the basis of secret government lists, even if they don’t bother to do much of their own reporting on it. As their accompanying video discloses up front, just about everything in this piece came to light because of reporting done by The Intercept … three years ago.

Well, at least ABC links them. At the end of their article, that is:

The possibility of basing further gun control measures on the database has prompted concern by civil liberties advocates and pro-gun lobbyists alike. The lists have been known to flag civilians with no ties to terrorist organizations, and it can be difficult for people to be removed after an error has been made — giving credence to critics who worry that restricting gun rights on the basis of the lists would violate the civil liberties of innocent parties. Nonetheless, since a shooter killed 49 people at the Pulse nightclub in Orlando, Florida, a number of bills aimed at tighter gun control have called for people on the databases to be barred from purchasing guns.

A part of the problem, say critics of the latest bills, is the secretive environment in which the lists are compiled. There isn’t one list but a collection of indexes, beginning with the Terrorist Identities Datamart Environment (TIDE), run by the National Counterterrorism Center. As of June 2016, some 1.5 million people were on that list, according to an official fact sheet on the program, including 15,000 U.S. citizens and permanent residents. The no-fly list — a subset of the TIDE database — has tens of thousands of names on it, having grown from just 16 names after 9/11, according to a former counterterrorism official who spoke to ABC News but asked for anonymity because of the sensitive nature of the lists. …

Once a person’s name goes on a list, his or her information can be shared with the CIA, the FBI, the Department of Defense, Immigration and Customs Enforcement, Citizenship and Immigration Services, the Department of State, the Agency for International Development, foreign partners and state, local and tribal police, according to documents first obtained by The Intercept.

People who believe they have been wrongfully added to a watch list can file a complaint through a redress program, which launches an internal review not subject to oversight by any court or entity outside the counterterrorism community, according to the documents. The review can result in the removal of an individual’s name, but the person won’t necessarily be notified of the result, because the government maintains a general policy to “neither confirm nor deny an individual’s watch list status,” the documents state.

Individuals may even be kept on the list after being acquitted of a terrorism charge if authorities still have reasonable suspicion.

Once again, all of this has been known to the public for three years. It has been known to Congress for much longer than that. While there may have been exigent circumstances after 9/11 that required the use of such lists without access to due process for a handful of people for a short period of time, they have grown way past the point of exigent circumstances now, even for their use in preventing access to commercial aircraft. There is no constitutional right to fly or even to travel, but the idea that government can keep citizens and legal residents from a significant commerce market without any due process at all should bother Americans, even those who understand the need to protect air travel.

When it comes to explicit constitutional rights, however, it’s far more serious — and goes way beyond gun control and the right to keep and bear arms. That’s a point that ABC and most other media outlets avoid, but it’s central to the discussion. The federal government can block sales to people who have felony convictions (and certain misdemeanor convictions), but those convictions allowed for due process. If the government can block exercise of Second Amendment rights based on secret lists and “reasonable suspicion,” what’s to keep them from blocking exercise of Fourth Amendment rights on search and seizure? Or First Amendment rights on speech, religious exercise, and petitioning government? And who exactly oversees whether there is a rational basis for “reasonable suspicion”?

Watch lists might be useful for law enforcement, although with more than a million people on them, even that’s debatable. It didn’t do anything to prevent Omar Mateen from carrying out a terror attack in Orlando despite multiple interventions by law enforcement and all sorts of red flags in his past. What they cannot do is form the basis of denial of constitutional rights — not unless we’ve given up on the principle of constitutional rights entirely in favor of Big Brother.

ABC News deserves one cheer for finally presenting this side of the debate in depth. Welcome to the party, pal!