A “No Buy” List for Guns Based on FISA Court Proceedings is Awful Policy and Unconstitutional

June 14th, 2016

I was frankly stunned to read Adam Winkler’s proposal in the New York Times to expand the jurisdiction of the FISA Courts to allow the judges to add suspected terrorists to a federal gun watch list, on only a probable cause standard.

I am old enough to remember the outrage on the left to no-fly lists, which indiscriminately singled out middle-eastern men for violations of their civil rights. For years, the ACLU has been challenging in courts the no-fly list as a violation and deprivation of civil rights and due process. And good for them! In 2010, Laura Murphy, Director of the ACLU Washington Legislative Office Senate Committee on Homeland Security and Government Affairs, testified at a hearing titled “Terrorists and Guns: The Nature of the Threat and Proposed Reforms.” Her testimony offers a stinging critique of the no-fly lists, and urged Congress not to prevent people on the list from purchasing a gun.

We write today about the use of terror watch lists to screen gun purchases. The ACLU believes that the current terror watch list process is deeply flawed. Evidence from numerous government reports document ill-designed and inaccurate lists with serious inadequacies in the process for placing and removing individuals from the list. Even worse, the lists are shrouded in secrecy: who is on the list, the standard for placement on the list, and the requirements for removal from the list are all secret. Given these problems, we do not believe that anyone should be deprived of the right to purchase a gun, or the right to fly, or any other benefit of membership in civil society based solely on placement on a terror watch list.

See more from Eugene Volokh here and here.

Now, we are at the point where the left is proposing this as a means to further single out and target middle-eastern men. For all of the outrage against Donald Trump’s overt racism against Muslims, this proposal would quietly have a similar effect. Who do you think are the sorts of people added to these lists? If Edward Snowden has taught us anything, that secret proceedings can and will be abused–especially if motivated by political expediencies. Imagine the same sort of power in the hands of a Trump administration–allowing federal agents to secretly add Muslim-Americans to secret lists based on informed conjecture. And this is far different from ex parte domestic abuse orders, which Adam tries to draw an analogy to. Ex parte does not mean Star Chamber.

Being beyond an awful policy suggestion, this idea is patently unconstitutional. Adam mentions that the FISA Court can grant search warrants based only on “probable cause,” as if that is some sort of panacea or green light to deprive other constitutional rights on that basis. Adam certainly knows better. The phrase “probable cause” is actually in the 4th Amendment. The framers understood that temporary searches would have to be authorized on standards far short of that required for a criminal conviction. A permanent deprivation of constitutional rights is not subject to a probable cause standard, with good reason. Call it strict scrutiny or intermediate scrutiny, or whatever you want, but the standard for Franks v. Delaware will never be sufficient to protect a constitutional right. Except unlike Franks v. Delaware, there is zero opportunity to challenge secret court proceedings–hell, you’ll never even know one occurred until you attempt to buy a gun and are denied for unknown reasons.

A few months ago, I advised a member of the California legislature on a potential state law that barred people on the federal no-fly list from owning guns. He agreed that it would not work. Among the constitutional scholars who advised him were Adam Winkler.

I should also note that the individual involved in the Orlando shooting was subject to several FBI investigations, and they ultimately abandoned it–and any other potential FISA proceedings. This is not the route to go down to protect our homeland security.