Reminder: The no-fly list is riddled with dangerous flaws

It might sound like common sense to tie gun control to the terror watch list, but that list is easily exploited

Published June 23, 2016 4:13PM (EDT)

 (Reuters/Jason Reed)
(Reuters/Jason Reed)

Earlier this week, the Senate voted down four gun-control bills that emerged in the wake of the Pulse nightclub shootings in Orlando. Cynics weren't surprised.  In 2012, Sandy Hook was the stress test in the Senate’s long history of doing nothing, legislatively speaking. At the moment I'm writing this, House Democrats are currently staging a sit-in protest demanding “commonsense gun legislation.”

Lately, it seems that common sense is highly uncommon; but one popular accusation is that the Senate “couldn’t even agree to keep people on the terror watch list from buying high-powered assault rifles,” as comedian Steven Colbert lamented. On the face of it, Colbert has a point. Terrorists shouldn’t be able to buy guns, should they? Surely that claim is politically unassailable? It would be, if the assumption that “terrorists” get put on “terrorist watch lists” was a natural fact, like the redness of ripe raspberries or the wetness of water. If tweets are to be taken at face value, more than a few politicians seem to believe in guilt by fiat, enforcing this gem of circular logic: suspected terrorists are on the terrorist watch list, and that list determines who gets watched because they might be terrorists. A scenario straight from the Tuttle/Buttle typo debacle in Terry Gilliam’s “Brazil.”

Correspondingly, in advance of Monday’s vote on the four failed gun-control bills, the ACLU had strongly protested the use of the terrorist watch list to restrict the purchase of guns. “If the government chooses to blacklist people,” the ACLU argued, “the standards it uses must be appropriately narrow, the information it relies on must be accurate and credible, and its use of watchlists must be consistent with the presumption of innocence and the right to due process. This is not what the government is doing.”

So if it’s not passing gun-control legislation, what is the government doing? In response to Orlando, Senate Majority Leader Mitch McConnell shifted political attention to that “terror watch list” and proposed to expand the authority of the Federal Bureau of Investigation to secretly conduct surveillance on American citizens without a warrant. Sponsored by Arizona Senator John McCain, the amendment is supported by other Republican senators including Richard Burr, chair of the Senate Intelligence Committee. A broad coalition of watchdog groups have petitioned the Senate to vote down this amendment. (At time of writing, the vote on this issue, scheduled for Wednesday, was just postponed.) What does expanding the powers of the FBI have to do with regulating guns? Not much. But it does have a great deal to do with expanding state power and invading privacy, working under the assumption that all citizens are guilty until proven innocent.

There have been tussles over the semantics of who gets called a “terrorist” precisely because it is tied to the correct and justified use of state power. Yet as civil rights watchers have pointed out, Omar Mateen wasn’t on any watch lists. For that matter, neither was Dylann Roof, Robert Lewis Dear, or other Christian terrorists. The wisdom of using the watch list to regulate gun purchases mostly seems like a great idea in hindsight, for terrorists are defined by their actions, not by their thoughts, and depriving individuals of their civil liberties on the basis of what they might do is toxic ethical terrain.

These attacks on civil liberties should concern everyone, even those who believe that airplane and train travel is for elitist assholes, and so is anyone defending the Second Amendment. They are part of a larger pattern eroding fundamental rights, including the recent Supreme Court decision in Utah v. Strieff to effectively expand the powers of a growing police state in this country. In a blistering dissent, Justice Sonia Sotomayor concluded that the Court’s holding “says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.” You know matters have gone all pear-shaped when a writer for the conservative website Red State not only agrees with Sotomayor but found himself “slightly terrified” by the Supreme Court’s failure to uphold the 4th Amendment.

Crucially, inside a carceral state, a taxonomy of crime is also a taxonomy of color. Non-white and economically disenfranchised minorities are disproportionately affected by the Supreme Court’s latest decision, because they are historically arrested at higher rates. To declare this proves that minorities are more prone to criminal behavior puts the cart before the horse. Arrests and crimes are different things. If you’ve ever driven over the speed limit, jaywalked, driven under the influence, smoked pot, or live in a state with archaic laws involving “sodomy”  (which includes non-procreative sex even within marriage), you’ve broken the law. In other words, we all live in glass houses, but only some of us have reusable escape hatches. In a similar vein, Glenn Greenwald asks: “What is a ‘potential terrorist’?  Isn’t everyone that?”  Yes, everyone is, including you. And not in an abstract, rhetorical way, but in a “are you feeling lucky, punk?” kind of way.

Back in 2014, Nick Wing made a list of seven different ways that ordinary, law-abiding and patriotic citizens could end up on a terrorist watch list. Three of them basically boiled down to the sphere of personal dislike, i.e. a hater decided to report you. Could it really be that arbitrary? Ex-wives, disgruntled employees, angry boyfriends and concerned citizens can call up the FBI, insinuate unfounded suspicions, and just like that, you’re on the list? Sounds far-fetched, but this is how more than one person ended up on the no-fly list, including Hasan Elahi. To be sure, he is a brown man with odd sartorial tastes. But if he regularly commits crimes against fashion, he is neither a criminal nor a terrorist. He is an interdisciplinary multi-media installation artist.

Try explaining contemporary non-site-specific digital conceptual art to the FBI. They responded exactly as you might expect: by repeatedly bringing him in for intensive questioning, and conducting various forms of surveillance on him. Eventually, he responded by conducting surveillance on himself, putting his entire life online—ranging from images of airport urinals, plates of tripe, and actual banking statements—as those events unfolded in real time. He calls it "The Orwell Project." Recently, he was named a 2016 Guggenheim Fellow. Over a decade later, the FBI and other agencies are still monitoring him, even as he continues to conduct surveillance on himself.

Once a terrorist, always a terrorist, even if you're just a hard-working artist going about your business and winning major awards by exposing your ordinary non-terrorist life to a skeptical world. Regardless of what you think about gun violence in America, it might be time to re-read Orwell’s classic dystopian satire, “1984.” We’re already three decades past that date, and arguably a few national security letters too late.

By Paula Young Lee

Paula Young Lee is the author of "Deer Hunting in Paris," winner of the 2014 Lowell Thomas "Best Book" award of the Society of American Travel Writers. She is currently writing outdoor adventure books for middle grade and young adults. Follow her on Twitter @paulayounglee

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