Agents with the Federal Air Marshal Service (Photo: Transportation Security Administration)
WASHINGTON – When the NRA and the ACLU are one side of an issue, and Hillary Clinton and Donald Trump are the other side, the situation is anything but normal.
That appears to be the case with the “no-fly” list, meant to keep potential terrorists off airplanes, which is suddenly back in the news after the jihadist massacre in Orlando over the weekend.
GOP presidential candidate Trump says he will meet with the National Rifle Association, or NRA, to discuss how to keep guns out of the hands of people on such lists.
The problem is not a disagreement over whether people on terror watch lists should have guns.
Nobody thinks they should.
Not President Obama. Not Hillary Clinton. Not Donald Trump. Not the NRA.
The problem is the lists.
GOP presidential candidate Donald Trump
And that’s where the NRA and the ACLU agree.
“Restrictions like bans on gun purchases by people on ‘watch lists’ are ineffective, unconstitutional, or both,” tweeted the NRA on Tuesday.
The position of the ACLU is identical, as expressed in a position paper published in December titled, “Until the No Fly List Is Fixed, It Shouldn’t Be Used to Restrict People’s Freedoms,” where the group’s National Security Project Director wrote:
“[T]he standards for inclusion on the No Fly List are unconstitutionally vague, and innocent people are blacklisted without a fair process to correct government error. Our lawsuit seeks a meaningful opportunity for our clients to challenge their placement on the No Fly List because it is so error-prone and the consequences for their lives have been devastating.”
The left-leaning Huffington Post agreed and actually praised the NRA’s position in an article Tuesday in which its legal affairs reporter wrote:
“On this front, the NRA has forcefully and successfully argued government watch lists are constitutionally problematic because they’re bloated and sweep far too broadly, ensnaring innocent Americans that otherwise pose no threat to national security – including one prominent U.S. senator, media pundits, executives, even babies, and the late Nelson Mandela.”
The problem is further illustrated by the fact that 73 employees of the Department of Homeland Security are on the terror watch list.
But those details have not dissuaded Democrats in Congress from using the Orlando massacre as reason to renew attempts to ban gun sales to what the ACLU says are “the hundreds of thousands of people” on all the terror watch lists. That’s, in part, because the Orlando killer, Omar Mateen, had once been on such a list, but was later removed.
Democrats might have more luck this time than in 2009 when a similar bill was defeated, because Senate Majority Leader Mitch McConnell, R-Ky., said he was “open to serious suggestions from the experts as to what we might be able to do to be helpful.”
And the number two Republican under him, Sen. John Cornyn, R-Texas, confirmed that he and Sen. Dianne Feinstein, D-Calif., were holding secret talks on a compromise bill.
The FBI tried to signal its displeasure with using the no-fly list to prevent gun sales, but was shot down by the White House.
Last year, FBI Director James Comey testified before Congress that denying gun sales to suspected terrorists would just tip them off that they were under surveillance.
FBI Director James Comey
But Attorney General Loretta Lynch overruled Comey on Thursday, saying the Obama administration does support banning firearms sales to people on terrorist watch lists, and she declared that would not harm investigations, despite what the FBI director may believe.
The topic leaped back into the headlines on Wednesday after Trump tweeted, “I will be meeting with the NRA, who has endorsed me, about not allowing people on the terrorist watch list, or the no fly list, to buy guns.”
The NRA tweeted back, “Happy to meet @realdonaldtrump. Our position is no guns for terrorists_period. Due process & right to self-defense for law-abiding Americans.”
No details on when or where they will meet have been disclosed.
The NRA later expanded on its position, releasing a statement Wednesday that read:
“The NRA believes that terrorists should not be allowed to purchase or possess firearms, period. Anyone on a terror watchlist who tries to buy a gun should be thoroughly investigated by the FBI and the sale delayed while the investigation is ongoing. If an investigation uncovers evidence of terrorist activity or involvement, the government should be allowed to immediately go to court, block the sale, and arrest the terrorist. At the same time, due process protections should be put in place that allow law-abiding Americans who are wrongly put on a watchlist to be removed.”
Hillary Clinton has long and loudly supported banning people on federal watch lists from purchasing firearms, as have many other top Democrats.
The White House signaled it sided with Trump, too, in this case, when White House press secretary Josh Earnest told reporters, “The president does believe that the notion of preventing people who are on the no-fly list from buying a gun is a pretty common sense proposition,” adding, “It is the kind of thing that even people who have profound political differences should be able to agree on.”
Terrorists with guns
So, everyone agrees terrorist shouldn’t have guns.
What they don’t agree upon, is who may be a terrorist.
And whether to rely upon a government watch list as the definitive word on who is, and who is not, a terrorism suspect.
One reason conservatives may have good reason to be highly skeptical of government watch lists was highlighted in a story by WND’s Chelsea Schilling on Wednesday.
She reported that, following the Orlando massacre, and just months after Department of Homeland Security advisers claimed “the threat from right-wing extremists domestically is just as real as the threat from Islamic extremism,” DHS Secretary Jeh Johnson has now suggested his department should be in charge of implementing gun control.
Commenting on the article, popular talk-radio host Chris Plante on WMAL in Washington asked his audience on Thursday morning, “Am I a terrorist?”
He made the point that if the DHS thinks right wingers may be terrorists, and they’re the ones making the terror watch lists, what is to stop them from criminalizing conservatives?
WMAL talk radio host Chris Plante
Especially, he noted, after the weaponization of an IRS that targeted conservatives under the Obama administration.
In December, Schilling took an in-depth look at many of the astounding problems with the watch lists.
She found that if Obama’s proposal to prevent the 47,000 people on the no-fly list from owning guns were to ever become law, America could see U.S. Marines, congressmen, journalists and even federal air marshals mistakenly stripped of their firearms.
“To begin with, Congress should act to make sure no one on a no-fly list is able to buy a gun,” Obama said Dec. 6. “What could possibly be the argument for allowing a terrorist suspect to but a semi-automatic weapon? This is a matter of national security.”
But while San Bernardino, California, terrorist Syed Rizwan Farook managed to fly to Pakistan and Saudi Arabia under the radar of federal authorities in 2014, thousands of innocent people have been mistakenly linked to U.S. terror watchlists. Some experts and critics contend the federal list process contains many errors and relies on an overly broad standard of reasonable suspicion.
‘No guns’ for congressmen, Marines and feds?
Under Obama’s standard, even the late-Sen. Ted Kennedy, an ardent advocate of gun control while he served in Congress, would be blocked from purchasing a firearm.
In March 2004, Kennedy was stopped three times at airports in Washington, D.C., and Boston. Airline agents told the senator he couldn’t purchase a ticket because his name was on a list, according to USA Today.
“If they have that kind of difficulty with a member of Congress, how in the world are average Americans – who are getting caught up in this thing – how are they going to be treated fairly and not have their rights abused?” Kennedy asked then-Homeland Security undersecretary Asa Hutchinson.
Kennedy wasn’t alone. Many other unsuspecting Americans have had similar experiences. In 2014, Politico reported Fox News contributor Steve Hayes was listed in the federal terrorist database after he traveled to Istanbul for a cruise.
“When I went online to check in with Southwest, they wouldn’t let me. I figured it was some glitch,” he said. “Then I got to the airport and went to check in. The woman had a concerned look on her face. She brought over her supervisor and a few other people. Then they shut down the lane I was in, took me to the side, told me I was a selectee and scrawled [something] on my ticket.”
Hayes said a Southwest Airlines agent later informed him that he was on the government’s terrorist watchlist.
Many children under the age of five have generated false positives when their names were listed among those on the No-Fly List. One 18-month-old baby was pulled off a JetBlue flight in 2012.
In 2003 , 71-year-old Milwaukee nun Sister Virgine Lawinger had her travel plans interrupted.
In 2006, a U.S. Marine had his trip home to Minneapolis from Iraq delayed when his name appeared on the list.
Rep. John Lewis, D-Ga., said he was stopped between 35 and 40 times in only a year after his name appeared on the list in 2003.
Even members of the Federal Air Marshal Service said they were blocked from boarding planes in 2008 after their names appeared in the database.
One marshal told the Washington Times it’s “a major problem, where guys are denied boarding by the airline.”
“In some cases, planes have departed without any coverage because the airline employees were adamant they would not fly,” said the air marshal, who requested anonymity due to the nature of his job. “I’ve seen guys actually being denied boarding.”
Another air marshal told the Times one agent had been “getting harassed for six years because his exact name is on the no-fly list.”
Sen. Marco Rubio, R-Fla., told CNN that most people on the No-Fly List don’t even belong there: “These are everyday Americans that have nothing to do with terrorism. … The majority of 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.”
Even the left-leaning website Vox.com noted, “While the criteria for what sorts of ‘threats’ get placed on the no-fly list is specific, the evidence that can be used to put someone on the no-fly list – or any government watch list – is pretty thin. The government is trying to predict whether people who have never committed any acts of terrorism before will commit one now, and that involves a lot of what the government calls ‘predictive judgments’ and its critics call guesswork.”
Terrorist Screening Database and the No-Fly List
The FBI maintains the Terrorist Screening Database, which was estimated in a 2009 Justice Department audit to contain “more than 1.1 million known or suspected terrorist identities.”
In many cases, a single person on the list was found to have more than one identity. According to leaked government documents published by the Intercept, in 2013 there were 680,000 people actually on the list.
And more than 40 percent of those names (280,000 people) were found to have “no recognized terrorist group affiliation.” Tim Healy, an FBI veteran who runs the Terrorist Screening Center, told CBS News, “We don’t confirm anyone’s existence on the watch list.”
The FBI says a person’s name may be added to the federal watch list “when there is reasonable suspicion that the person is a known or suspected terrorist. To meet the reasonable suspicion standard, nominating agencies must rely upon articulable intelligence or information which, taken together with rational inferences from those facts, reasonably warrants a determination that an individual is known or suspected to be or have been knowingly engaged in conduct constituting, in preparation for, in aid of, or related to terrorism or terrorist activities.”
The No-Fly List – a subset of the Terrorist Screening Database – reportedly listed 47,000 people in 2013.
“Inclusion on the No Fly List prohibits an individual who may present a threat to civil aviation or national security from boarding a commercial aircraft that will fly into, out of, over, or within United States airspace … Before an individual may be placed on the No Fly List, there must be credible information that demonstrates the individual poses a threat of committing a violent act of terrorism with respect to civil aviation, the homeland, United States interests located abroad, or is operationally capable of doing so.”
David Gomez, a former senior FBI special agent, told the Intercept the watchlist system is “revving out of control.”
“If everything is terrorism, then nothing is terrorism,” he said.
Gomez expressed concern that the database is being compiled based merely on a vague concept of reasonable suspicion.
“You need some fact-basis to say a guy is a terrorist, that you know to a probable-cause standard that he is a terrorist,” Gomez told the Intercept. “Then I say, ‘Build as big a file as you can on him.’ But if you just suspect that somebody is a terrorist? Not so much.”
Vox.com said the government’s “reasonable suspicion” standard includes Facebook and Twitter posts.
“There’s also a way for the government to add whole categories of people (like anyone who ‘traveled to a particular country in a particular year) to the no-fly list temporarily – if it has specific reasons for doing so,” Vox explained. “The ‘upgrade’ (as it’s called) can last for 72 hours without official review, and can get extended indefinitely every 30 days if ‘senior officials’ agree it’s necessary.
“The temporary ‘upgrade’ could be an implementation nightmare in and of itself for making the no-fly list a no-gun list. Would people who’d temporarily been put on the no-fly list be told they couldn’t buy a gun, period? Would they be told to come back after the upgrade had been lifted? Would the government put in place a way for an individual person to exempt himself from the group terror ‘upgrade?’”
Anyone may request removal from the terror watchlist by contacting the DHS Traveler Redress Inquiry Program. From fiscal year 2006 to 2008, the FBI processed an average of 2,710 watchlist record removals each year.
TSA misses 73 people with suspected terror links
While many innocent people continue to find themselves on the federal watchlist, other individuals with suspected terror ties are finding jobs in America’s “secure airport areas.”
In another twist in December involving the terror list, Rep. Stephen Lynch, D-Mass., told Boston Public Radio that the inspector general of the Department of Homeland Security found at least six-dozen individuals “on the terrorist watch list that were actually working at the Department of Homeland Security.”
Asked why he supported a GOP bill to tighten screening requirements for Syrian and Iraqi refugees earlier this month, Lynch said, “I have very low confidence based on empirical data that we’ve got on the Department of Homeland Security. I think we desperately need another set of eyeballs looking at the vetting process.”
Lynch mistakenly identified the suspects as DHS employees. The 73 employees he referenced were airport and airline employees screened by the Transportation Security Agency, or TSA.
Department of Homeland Security Office of Inspector General finds TSA failed to identify 73 people with terror-related codes when it vetted aviation workers (Photo: DHS screenshot)
WND contacted TSA to ask whether any of the 73 workers on the terror watchlist carried firearms in the line of duty, as would likely be the case for Federal Air Marshal agents, who fall under TSA supervision. But a TSA spokesman didn’t answer the specific question and instead provided several links to congressional testimony.
Every day, TSA is responsible for screening an estimated 2 million air passengers at 441 airports across America. TSA agents also screen airport and airline workers before they enter secure areas, and the TSA conducts security background checks for those workers.
When a person wants to work at an airport or for an airline, TSA checks the names against the Terrorist Screening Database and performs criminal background and immigration status checks.
However, according to a June 2015 OIG report, TSA missed the 73 individuals with “terrorism-related category codes because TSA is not authorized to receive all terrorism-related information under current interagency watchlisting policy.”
Department of Homeland Security Office of Inspector General spokeswoman Erica Paulson told WND:
“TSA has concurred with our recommendation to seek additional terrorism-related records for review during aviation worker vetting. We believe that TSA is moving toward that goal, although the recommendation in our report remains open at this time, until we receive evidence from TSA that it has completed the request.”
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