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Watch lists should never be used to deny constitutional rights

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What the Devil won't tell you

Watch lists should never be used to deny constitutional rights

Az Dems may be on the road to McCarthyism, attacking McCain & McSally over gun legislation

Let folks on the terrorist watch lists buy guns. In fact, the Left should be marching in the streets demanding as much. I will walk you through the terror watchlist governing document to show you why, without once invoking the Nazis (but Joe McCarthy would be proud).

State Rep. Victoria Steele and former state legislator Matt Heinz are attacking U.S. Rep. Martha McSally for opposing President Barack Obama's call to bar those on the no-fly list from buying guns. McSally has been targeted by ads attacking her vote against it during a move by Democrats to force a vote on the issue. So too is U.S. Rep. Ann Kirkpatrick blasting U.S. Sen. John McCain over his intransigence on the same issue. Steele and Heinz are vying to challenge McSally in next year's congressional race, and Kirkpatrick wants to end McCain's tenure in the Senate.

The plan sounds reasonable. Out in Connecticut, Gov. Dannel Malloy issued an executive order to make sure no one on the watch list gets a firearms permit.

'... The standards for inclusion on the No Fly List are unconstitutionally vague, and innocent people are blacklisted without a fair process to correct government error.' — ACLU

But, the no-fly list is a part and parcel of the terrorist watch list, which operates outside the purview of legislative and day-to-day judicial oversight. In fact, its rules are sketchy at best and its governing document isn't even a rule book. It's the March 2013 Watchlisting Guidance — guidance being not the same as rules and regulations. 

So the American Civil Liberties Union and yours truly both say this is a bad idea.

I get why Democrats think it's smart politics to launch this attack. The National Rifle Association has been beyond intractable arguing gun ownership is the one absolute right when no other constitutional right enjoys such all encompassing protection. Democrats have long suffered from being the mommy party on national security issues, while protecting the Nanny State here at home — which makes them the helicopter moms without the balls to kill in the name of security. Throw these together and you get some frustration. This is a chance to put the GOP on the defensive during an election season.

'... We must close this loophole that allows suspected terrorists – who are already barred from flying on commercial airlines – from legally purchasing guns and explosives.' — Victoria Steele

Barring "terrorists from buying guns" polls through the roof. In Democratic campaign politics, pollsters run the messaging operation. Ask a sample of 500 likely voters if people on the "Terror Watchlist should be allowed to vote on "Dancing With the Stars" or redeem iTunes gift cards and the answer would be a resounding "No." Once pollsters start examining public opinion on the rights of people on a list that includes the modifiers "terrorist" and "watch" the question starts answering itself. 

Terror watchlisting has just escaped the confines of the National Counter Terrorism Center and its rolls are ripe for political exploitation. This is bad.

These lists may be a valuable tool to let law enforcement react at Jack Bauer speeds to thwart impending doom as the clock winds down. However, they are horror shows when used to limit American rights. As a political bludgeon, the names in the database become a secret enemies list that can be deployed against the people to deny them their rights and liberties. 

Denying gun ownership to listees is not just a first step down a slippery slope, it's jumping on a snowpack ripe for avalanche. Gun ownership is a constitutionally protected right whether we like it or not because the U.S. Supreme Court said so and they get the last word. 

What else polls well? Politically, the watch list can be a gift that keeps on giving. Hey, why not bar them from parental visitation, screen them for employment or let neighbors know if someone from the list moves nearby? There is plenty of precedent.

'We've gone through the looking glass to a place where the gun rights of potential terrorists matter more than the rights of American families to life, liberty and the pursuit of happiness.' — Matt Heinz

I've tried to stay out of national issues to let the global punditry fuck those up all by themselves. However, there is nothing more local than turning neighbor against neighbor. And there is absolutely nothing more local than protecting myself. If I want to stay off of an enemies list that denies me my rights, I have to protect people I oppose when they are threatened by it.

Steele, Heinz, Kirkpatrick and all the other so-called defenders of civil liberties would do best to stay way the hell away from anti-gun exhortations on this issue, while we still have a free press. 

Reductio so completely not ad absurdum

If the people on the watch list are slam-dunk, no-fooling terrorists, then of course they shouldn't be sold weapons. However, the list is not designed to adjudicate crimes. It's designed to prevent them. So the list is necessarily broadly written to cast a wide net.

A distinction must be pointed out: There is the No-Fly List, which has a slightly higher threshold of innuendo and inference required than the Terrorist Watchlist itself. Obama called for the prohibition to use the No-Fly List but House Democrats have pushed legislation using the Terrorist Watchlist and whacking Republicans like McSally with her no vote. Both follow similar "guidance."

The so-called Terrorist Watchlist, is in fact, the Terrorist Screening Database, which combined multiple independent lists from agencies who weren't great at sharing information. So after 9/11, the feds created an "Information Sharing Environment" and a single master list of suspicious types all the agencies can watch. Yet to be placed on this master list, standards were adopted. One person's terrorist is another person's freedom fighter, so the definition is important. 

The feds long chafed at revealing the process of placing people on The List, calling it a "state secret" and thus immune to scrutiny. That should prompt a red-flag response, like a first date saying, "You'll never meet my family." Luckily, in the day of the Internet, the non-classified guidance got leaked. Let's take a look. I gotta warn you that reading it is a bit like taking the red pill in the matrix, so let's see how far the rabbit hole really goes.

Here's how it defines "terrorism" and as you read, realize the words "may"/"or" are written to expand authority while "shall"/"and" draw it narrower.

"For watchlisting purposes under the Guidance, "terrorist activities" combine elements of various federal definitions are considered to: 

1.14.1 involve violent acts or acts dangerous to human life, property or infrastructure, which may be a violation of U.S. law, or may have been, if those acts were committed in the United States and

1.14.2 appear intended— to intimidate or coerce a civilian population to influence the policy of a government by intimidation, or, affect the conduct of government by mass destruction, assassination or hostage taking

Yep. Tom Brady is a terrorist. He damaged footballs, NFL property, "intimidates" "populations" (defenses) in 31 other cities and intimidated the NFL governing ("a government") body right out of a suspension. The mass destruction was the Seattle Seahawks in Super Bowl XLVIII. The state of Colorado still hasn't recovered.

I joke, but this is not a law written to cast a narrow net. Laws restraining civil liberties are almost always specifically written to limit constitutional problems. The guidance for the terror watch list reek of "better to be safe than sorry."

The terror watch list guidance is not a law. It didn't start as a bill. Congress didn't approve this language. It wasn't subject to veto, filibuster or override. No, it is (or was) a secret document written by some guys in the White House and the "ands" can become "ors" at a moments notice. All that stands in their way is government lawyers to give the OK. Government lawyers also declared waterboarding is not torture even though every other definition in the world defines it as such.

'Despite the threat of terror around the globe and here at home, powerful politicians in Washington are protecting a loophole that allows suspected terrorists to legally buy guns. To them I would say: you are protecting the wrong people. People too dangerous to fly are too dangerous to buy guns.' — Ann Kirkpatrick

For political purposes, Steele, Heinz and Kirkpatrick would limit the rights of the people on the list guilty of that vague definition. Maybe the definition is fine for tracking people from a situation room. In no way should it mutate from that kind of watchlisting into a tool to deny our constitutional rights. It's just too broad a definition.

The standard for putting people on the list is a legal definition called "articulable reasonable suspicion," which is reasonable suspicion that human beings can form words to articulate.

Now notice how there's no mention of radical Islam, Al Qaeda, ISIS or Boko Haram. Could it be used to track domestic terrorist groups fitting that vague definition of "terrorism." Could it be used against civil agitators who meet the definition? Could the list be used (or is it being used) as a free-speech dragnet?

Of protections and Justin Bieber

Sure, the feds say the watchlist is under "strong first amendment protections" and I say Justin Bieber "is one of the great minds of the 21st century" because I can form the words. It's articulable, see.

Constitutional protections outlined in section 1.19 of The Guidance prevent the feds from solely using someone's constitutionally protected free speech, freedom of the press, freedom of peaceful assembly, freedom to petition the government or free exercise of religion. Notice the word "solely." Your free exercise of constitutional rights can land you on a terror watchlist but only if there is another criteria.

That brings us to Section 1.20, which bars the feds from solely using your religion, race or ethnicity to put you on the list. It can be used but only in tandem with another criteria ... like the free exercise of your constitutional rights, perhaps, as outlined is Section 1.19? The same standard appears throughout the 166-page document as it bars social media posting, biometrics like a person's stride or "neutral" associations with terrorists ranging from commercial contact with a terrorist (Grocer? Barber? Mechanic?).

So we have an odd situation. By listing the protections the feds have made both derogatory indicators that can be used to put you on the list. They just can't use them alone, so it's a good thing they have a host of these "non-exclusive categories they can use to lump innocent acts together to place them on the watch list.

Folks there are zero, none, nada categorical prohibitions to protect any one of us from landing on it.

Guilt by association for watch list purposes is defined as "a close, continuing OR direct relationship with a known terrorist" Okay, define "close." Define "continuing," Define "direct." God! Define relationship! I hope they do better than defining "terrorist."

Currently, despite wild claims to the contrary, the best estimates of the number of Americans on watch lists stand around 10,000, but that may change. The fastest way to get it changed is when it's good for one political party and bad for another. About a million people in total are named on the lists.

Who's next?

Something else troubles me. Obama's proposal and Democratic attacks aren't happening in a vacuum. The Left has been calling recent abortion clinic shootings acts of domestic terrorism and maybe they are but in a day and age where there is a thing called a Terrorist Watchlist, that leads to guilt by association and soon enough the Tea Party itself could find itself hassled when its numbers try to fly — or be able to buy a gun, or vote or whatever else is politicians can use to beat their opponents bloody.

Now let's say the abortion clinic shootings continue and the National Counter Terrorism Center decides to label them terrorist actions because they fit the definition. Now those foggy definitions of close, continuing and direct relationships could ensnare a whole bunch of folks on the far Right, and those of who have friends and family who claim allegiance to that kind of conservatism.

If I'm Facebook friends with a Mormon who organized a Tea Party rally, can I be caught up in the dragnet if I've been a "continuing" friend? If my daughter goes full Tea Party, am I on the list? If I do, is my daughter? Welcome to the world of millions of Muslims guilty of having association with types our government defined as terrorist.

If Tea Party members say they aren't scared, they aren't paying attention to their own rhetoric. If Liberals aren't scared, they should remember Obama is using language drafted by the Bush administration.

If you are on the list, you may never know. It's a secret. Some may also be on the no-fly list but one doesn't follow the other. For someone inside government to disclose who is or isn't on the list and how it works, would mean that whistleblower would face the fate of Edward Snowden, on the run and in exile.


No-fly list criteria is a bit stricter ... kinda. But the list again is not a list of folks who should have rights stripped. It's not what it was designed to do. However, at least you can figure out if you are on that list.

You would find out if you are on the No-Fly List if you tried to board a plane and got a grilling by security before you took off. According to the 2013 Guidance, listees would have to be considered terrorists and seem operationally capable of pulling off an attack. What that second criteria is is of course largely left to terrorist screeners to figure out (better safe than sorry, again seems the mantra). Exactly how these conclusions are reached remains largely a mystery.

That's another fantastically large problem. Lawmakers can not during the legislative process hold a hearing and ask the most basic follow-up questions about the federal terror watchlists to vet the bill but still want to use it as the touchstone of the law to limit the rights of U.S. citizens. 

Am I getting through? How's this:

While just 1 percent of names nominated are rejected, only 20 percent of the listings survive a challenge when Jim Smith or Ahmed Al Cairo appeal their status. This is even more disturbing because the appeals process doesn't go to a judge. In fact, it is explicitly immune from an outside independent review, legislative oversight or a federal judicial relief.

It's all up to the humor and whimsy of the folks at the National Counter Terrorism Center to decide for themselves if they acted arbitrarily or capriciously. It is a testament to their humor, whimsy and professionalism that they change the person's status in 80 percent of the appeals cases.

Rule of law

One underlying principle of conservatism I love is that we are a nation of laws and not men. Freedom doesn't survive if it's at exists at the whimsy and good humor of government officials with police power.

I'm not condemning the Terror Watchlist as an investigative tool. I am absolutely condemning the government's ability to tell us who is a good and who is bad, without due process of law. If the government can be trusted with that power, then why in the name of Alexander Hamilton do we have a Bill of Rights?

'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.'— President Obama

Thirteen people were killed in San Bernardino and we are talking about one right. How many will we talk about if something really big happens? A nuclear detonation or an attack of smallpox? 

I can already hear in my head calls for giving neighbors the right to know who on their block are on the Watchlist. I can hear the case being made for employee screening and to take property of terrorists like we take property of suspected drug dealers with very limited due process. How about parental visitation? I can see the ads in my head. "Martha McSally is on the side of terrorists and not moms," while she is stuck trying to explain the haziness of "articulable reasonable suspicion."

That is as lethal to politics as it is to freedom. 

Pray that's only as far as it goes if we should ever walk down this road of common allegiance to a secret list of enemies of the state.

One reason I'm more on the liberal side of things is that it's the Left who says rights aren't limited to what polls well. Flag burning, ending Jim Crow, gay marriage (once) and the right to bear arms for those on a secret list are worth fighting for even if I'm not going to avail myself of them.

Constitutional democracies are rare things in human history because there were no "simpler times." Human beings were as complex then as they are now. What's universal is people embracing the security blanket of "common-sense restrictions that balance our security against their liberty." It's us versus them and it's as old as the first tribal council around a fire in front of a cave in Africa.

Nope. Nope. No. No. No. Nu-nu-nu-nu-nu-nu-no. These are not lists we should be using to deny or disparage the rights of people in the United States of America. If you think so, you can bite me. But be careful. That could land you on a list.

Blake Morlock covered Arizona government and politics for 15 years, including 11 in the Tucson Citizen. He also worked on Democratic Party campaigns in the field of political communications. Now he’s telling you things that the Devil won’t.

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