It’s a familiar story of the post-September 11 era: Democrats and Republicans are engaged in a partisan fight over the “no-fly” list created after the attacks. One party insists that the nation must take common-sense measures to protect citizens and the homeland. The other party howls that it’s an outrageous violation of due-process rules and part of a slide into lawlessness. All that’s different now is that the dominant voices in the two parties have flipped 180 degrees.
During his Oval Office speech Sunday night, President Obama said: “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 semi-automatic weapon? This is a matter of national security.”
Republicans reject that argument. “These are everyday Americans that have nothing to do with terrorism, they wind up on the no-fly list, there’s no due process or any way to get your name removed from it in a timely fashion, and now they’re having their Second Amendment rights being impeded upon,” Senator Marco Rubio, a top Republican presidential candidate, said on Sunday.
Last week, prior to the massacre in San Bernardino, House Republicans blocked debate on the Denying Firearms and Explosives to Dangerous Terrorists Act. On Thursday, the measure failed in the Senate as well. While its sponsors say the bill would prevent those on terror lists from acquiring guns, the law doesn’t specify whether it would bar those on the no-fly list or on several other federal watchlists.
What’s striking about this debate is how closely it mirrors the argument during the George W. Bush administration, when Democrats warned against the excesses of the list and Republicans defended it. The current debate suggests the extent to which the leading voices in the parties are willing to rearrange their positions around hot-button issues like gun rights, and shows how civil liberties tend to be treated as a tactical tool, exalted when they’re politically useful and forgotten when that’s more expedient.
Before September 11, the government did maintain a list of people who were not permitted to get on planes—16 of them, according to 60 Minutes. The list quickly grew after the attacks, though the government doesn’t report exact figures, making it tough to tell where things stand at any given moment. By 2006, 60 Minutes reported, there were 44,000 people on the list, plus another 75,000 for whom the feds called for extra screening. The no-fly list is also part of a much larger set, the Terrorist Screening Database, which the government compiled in 2003. In September 2008, an FBI deputy director told Congress there were 400,000 people on that last, 97 percent of them foreigners.
How does someone get on the watchlist? Who knows! The government says it gets thousands of tips a day, but it won’t tell you whether you’re on it, and it won’t tell you how to get off, as my colleague Conor Friedersdorf explained in 2012. The enormous size of the lists inevitably led to confusion, false positives, and outrage. Even Senator Ted Kennedy managed to end up on the no-fly list. So did Cat Stevens, now known as Yusuf Islam.
The system understandably raised the hackles of civil libertarians. The ACLU has been outspoken about the problems with the list for years. But it also upset Democrats, who complained that the list was yet another example of the Bush administration overreaching in its conduct of national-security policy, sacrificing in order to fight terrorism the very liberties that it purported to be defending.
“If his name got on the list in error, is that happening to other citizens and are they experiencing such difficulty in resolving the problem?” Kennedy’s spokesman told The Washington Post.
Over the late 2000s, pressure grew, and the no-fly list actually shrank significantly, to about 4,000. But after the failed Christmas Day “underwear bomber” attack in December 2009, the Obama administration reversed course and significantly ramped up the list. By 2013, according to documents obtained by The Intercept, there were 47,000 people on the no-fly list, topping the Bush administration’s high. Obama’s decision was driven in part by national-security hawks in his own party, including California Democratic Senator Dianne Feinstein, who called for a more aggressive list after the failed attack.
Republicans did not hesitate to criticize Obama over the attack, but the party was starting to discover a newfound skepticism for the no-fly list, now that a Democrat was in the White House and in charge of the list. That shift was helped by the election of a crop of libertarian-leaning legislators in the 2010 Tea Party wave, and growing evidence of the TSA’s inefficacy. The change wasn’t unanimous—you can read the conservative pundit Michelle Malkin saying no-fly enforcement was too lax in 2010—but something had changed. (It can’t have helped that Weekly Standard writer Stephen Hayes was somehow placed on the list, too.)
Obama didn’t personally make a great deal out of the no-fly list itself during his 2008 campaign for president, but he did criticize the Bush administration for overreach on civil liberties and excessive secrecy. Yet when the administration was sued by a man who believed he was on the list, it refused to say whether or not the man was on the list. As Nick Baumann of Mother Jones put it, “2008 Obama would have slammed 2014 Obama for this.”
When arguing that those on the no-fly list shouldn’t be able to buy guns, Obama and his allies have pointed to a 2011 call from American-born al-Qaeda member Adam Gadahn for would-be jihadis to take advantage of lax American gun laws. Still, it’s unclear how large an effect such a change would have on actual terrorism. The GAO found in 2010 that between February 2004 and February 2010, people on the terror watchlist were subject to firearm or explosives background checks in 1,228 cases. They were allowed to make their purchases in 1,119 of those cases, because there was noting that legally prohibited the buys.
In a smaller subset of the data, between 2009 and 2010, the GAO found that “several” people on the no-fly list were allowed to buy guns. So far, there’s nothing to suggest that Syed Rizwan Farook and Tafsheen Malik, the suspects in the San Bernardino shooting, were on the no-fly list, either.
The major objection among Republican politicians at the moment to Obama’s proposal is not that it wouldn’t prevent many gun purchases. It’s that it would infringe on people’s Second Amendment rights.
While that’s true, it somewhat misses the point. There are plenty of reasons why people in the United States can have their firearm rights abridged. The broader problem is not that the people on the no-fly list are being denied their rights; it’s that they’re being denied their rights without due process. The lack of due process for being placed on the list or getting off forms the basis for an ACLU case against the government, Latif, et al. v. Holder. In 2014, a federal court ruled that the redress process for people on the list was unconstitutional. The government revised its redress system, but the ACLU has again challenged that process as unconstitutional because of its lack of due process.
On Sunday, Rubio said, “There aren’t 700,000 terrorists operating in America openly on watch lists.” In fact, very few of the 700,000 he lists are in the U.S., but even accepting the principle, Rubio might, on some level, be making an argument against Obama’s gun proposal. But mostly, it’s a compelling case against the essence of the no-fly list as it exists today.