Guns, Roses, and Terrorist Watch Lists

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     Back in 2003, while the government was busy enforcing its notoriously inaccurate no fly lists, ensnaring a range of travelers from Senator Kennedy to an activist nun, New Jersey Senator Frank Lautenberg was protesting the Justice Department's failure to use terrorist watch lists to screen prospective buyers of guns and explosives. "The possibility that a person on the State Department's watch list, such as Adnan G. El-Shukrijumah (suspected Al Qaeda Cell Leader), could walk into a U.S. gun shop and legally purchase a weapon is very disturbing to me," Lautenberg declared, in a June 2003 letter to then Attorney General Ashcroft.  
   
     Plus ca change.  Last month the GAO reported that, in general, being named on a watch list will not bar you from making firearm purchases.  A five year review of FBI data showed that "963 NCIS background checks resulted in valid matches with terrorist watch lists record; of these matches, approximately 90% were allowed to proceed..." There's an obvious political reason for this anomaly  -  opposition of the gun rights lobby to regulation of firearms sales.  But the legal reasons are harder to discern.  According to the GAO, current law does not "automatically prohibit a person from possessing firearms or explosives because they appear on a terrorist watch list." (emphasis added)  
   
     But is someone named on the lists legally permitted to purchase a firearm? Executive Order 13224, issued shortly after 9/11, authorized the Treasury Department to promulgate a list of suspected foreign and domestic terrorists, with whom all economic transactions are legally prohibited.  Along with other federal laws, it created an extensive web of watch lists, with perhaps unintended but entirely predictable results, described in a 2007 report from the Lawyers Committee for Civil Rights. "An increasing number of private businesses, such as banks, mortgage companies, car dealerships, health insurers, landlords, and employers now check the names of customers or applicants against a U.S. Treasury Department terrorist list."  Some employers outsource list checking to companies that conduct background checks.  (LCCR followed up this report with a Freedom of information Act lawsuit that secured the release of Treasury documents relating to consumer complaints about the lists.) Not for profits also engage in list checking:  In 2004, the Washington Post reported that the Ford Foundation "daily checks the names of its 4,000 grantees against the government lists;" the Foundation was legally obligated to do so, a spokesman told the Post, and, in any case, "it's just the right thing to do."
  
     Not really.  As a result of all this excessively cautious and often covert list-checking by the private sector, "Many Americans who are not on the lists face stigma as well as delayed or denied consumer transactions solely because their names are similar to others who are designated," the Lawyer's Committee reported. "Theoretically, before a grocer sells a pint of milk, a deli serves a sandwich, or a doctor treats a patient, they should all be checking the (treasury) list to make sure they are not assisting a person on the list ... (Executive Order 13224) "extended liability to hair stylists, flower peddlers, hot dog vendors, or any Jane Doe who unwittingly sold a product or service to a designated person." You'd think that an anti-terrorism law applying to people who sell flowers would also apply to people who sell guns.  
   
     It's a moot point, I guess, since the watch lists are apparently not being used to obstruct transactions involving guns and explosives -- but it's a point that illustrates the dangerous idiocies of post 9/11 watch list laws.  The lists themselves are notoriously inaccurate and difficult if not impossible for innocent victims to correct; the laws are so absurdly broad that they cannot be applied with any fairness or consistency.  They can only be enforced erratically and arbitrarily.  You probably shouldn't worry about buying or selling an umbrella on the street from or to someone whose name might turn up on a watch list, unless perhaps the Administration is looking for an excuse to prosecute you.  The Treasury Department, for example, has used its "virtually unchecked power" under "overly broad" terrorism financing laws to discriminate against Muslim charities, effectively shutting them down with little regard for due process or the First Amendment rights of Muslim Americans, according to a recent ACLU report.  
   
     Executive Order 13224 is a primary source of Treasury's summary power to designate suspected terrorists and consign them to economic limbo, and the ACLU urges its repeal.  But the ACLU's opposition to EO 13224 and other terrorism financing laws is tainted by its own annual agreement to comply with them, in order to participate in a charitable giving program for federal employees, the Combined Federal Campaign.  (I've written about this controversy here, and in Worst Instincts.) 

     The ACLU, like other organizations, is formally bound by EO 13224 and other terrorism financing laws, in any case, but by voluntarily certifying compliance, it assumes additional contractual obligations to abide by the laws and refrain from hiring anyone named on the Treasury lists.  How does the ACLU fulfill these obligations? In an email exchange, organization spokesman John Kennedy stated that the ACLU does not check employees against the watch-lists.  What alternative measures does it take?  Kennedy declined to "publicly discuss internal personnel and compliance practices."  But it's only fair to presume that the ACLU, among other not-for profits, makes a good faith effort to honor its contract with the government and somehow avoid transactions with people named on the lists, engaging in anti-terror measures from which dealers in firearms and explosives seem effectively exempt.
   
     Senator Lautenberg wants "to close the 'terror gap' in the nation's gun laws" and is re-introducing his 2007 "Deny Firearms and Explosives to Dangerous Terrorist Act," which would give the attorney general discretionary authority to block the sale of guns or explosives to known or suspected terrorists.  The effort has a lot of obvious, common sense appeal.  Gun control advocates are understandably indignant about the gun sale "loopholes" that Lautenberg has long decried, (and pending proposals would provide prospective gun buyers an opportunity to challenge the AG's decisions.) Still, civil libertarians as well as gun rights advocates have good reason to oppose extending terrorism financing laws without dramatically amending them first.
   
     Surveying the highly selective, arbitrary and abusive use of post 9/11watch lists laws by the government and private sector, you see little rationality and virtually no justice.  Instead you find a relatively obscure network of statutes, executives orders and regulations that empower the government to impose harsh, discriminatory economic sanctions on individuals and groups rightly or wrongly suspected of terrorism and on virtually any person or group with whom these suspected terrorists engage in mundane economic transactions -  a network of laws that strongly encourages the complicity of businesses, financial institutions, and charities in blacklisting.  Whatever happened to due process and equal application of the law? It's hard to engage with this unjust, ineffective, anti-terror bureaucracy without being corrupted by it.      

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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