Kill the terror watch list

Something extremely rare is happening in Washington: Gun control has a chance of passing.

The idea is to prevent people on the terror watch list from buying guns. This proposal has a chance because it inverts the traditional politics of civil liberties.

Republicans were the first movers in abridging civil liberties and due process for suspected terrorists, while fiercely defending absolutist gun rights. They have thus been put in the awkward position of defending a policy of unilaterally suspending some rights for people (such as flying), but allowing them to buy guns. However, now some Republicans, including presidential frontrunner Donald Trump, want to ban gun purchases for those on the watch list.

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Democrats are on board, too. In Connecticut, Democratic Gov. Dan Malloy has promised to ban the purchases of guns for people on a watch list, and as Greg Sargent reports, some Congressional Democrats are looking to do the same.

This is all backwards. The terror watch list is a massive violation of due process, and civil liberties advocates ought to team up with the NRA to abolish or reform it.

Now, technically speaking, there is not one unified terror watch list, but several overlapping ones. Aside from the no-fly list, there is the Terrorist Identities Datamart Environment at the National Counterterrorism Center, the Consular Lookout and Support System at the State Department, and the Terrorist Screening Database at the FBI. What they all have in common, however, is the fact that they are nearly devoid of due process.

There is basically no standard of evidence for being placed on a watch list. It's hard to even determine if you're on one or not. And it's nearly impossible to challenge one's status. These watch lists have caught up innocent university professors, young children, members of Congress, and many others.

As Kevin Drum points out, even after a federal judge ruled such practices unconstitutional earlier this year and ordered the government to implement at least a modicum of due process, Uncle Sam is still dragging his feet. U.S. lawyers argue (in keeping with Bush-vintage theories of expansive executive authority) that it harms national security to tell people why they are on the watch list — thus making it impossible for people to challenge their status.

These arguments for curtailing civil liberties to better attack terrorism are backwards. The NSA's dragnet surveillance, for instance, likely harms anti-terrorism efforts, because no detection method is possibly accurate enough to avoid creating a gigantic deluge of false positive reports. Similarly, a watch list with 680,000 people on it, 280,000 of whom have "no recognized terrorist affiliation" and 16,000 of whom are dead, is unquestionably stuffed full of innocent people and thus a hindrance to quality anti-terror efforts (not to mention that neither Syed Farook nor Robert Dear were on any such list). Investigating false leads wastes time as well as inconveniencing innocent people.

Respecting civil liberties and due process is good in itself, but it's also an important method by which law enforcement agencies are forced into the difficult business of shoe-leather investigative work. It's a lot easier to just beat a confession out of some random guy you pick up off the street than it is to do a lot of interviews and complicated forensics.

Since watch lists are largely useless for fighting terrorism, it stands to reason that they also would not accomplish much on the gun control front. America is awash in guns, and it's pitifully easy for motivated people to get around what few controls there are. Picking a few hundred thousand people semi-randomly to be unable to purchase guns would accomplish little on gun policy at the cost of entrenching a deeply unjust system.

Civil liberties advocates like Justin Amash on the right and Ron Wyden on the left ought to team up with the gun rights crowd to destroy the watch list in its current form. If it must exist, people should be informed when they are placed on it, and should be able to contest that designation in a court of law. Perhaps even more importantly, security agencies should be forced to justify to a judge before they can add someone to the list. Currently, a single person in the government can move whole categories of people (Arabs, for instance) from a watch list to the no-fly list on his own authority. That will of necessity lead to abuse. Let's fix this outdated, wasteful, and unjust system.