New in National Review: A ‘No Buy’ List for Suspected Terrorists Would Be Constitutionally Reckless

June 16th, 2016

National Review has published my essay about the dangers of the proposed “no buy” list for suspected terrorists. (It is based on a post I wrote earlier this week). Here is the introduction:

‘What could possibly be the argument,” President Obama asked in his December 2015 address from the Oval Office, “for allowing a terrorist suspect to buy a semiautomatic weapon?” Hillary Clinton agreed. “If you’re too dangerous to get on a plane, you’re too dangerous to buy a gun in America,” she tweeted. In the wake of the recent terrorist attack in Orlando, politicians on both sides of the aisle have proposed expanding the “no fly” list to a “no buy” list for guns. (Senators Mark Kirk and Pat Toomey, and Representative Pete King are among the Republican supporters of the idea.) At first glance, this plan seems like a pragmatic, and even unimpeachable method to protect the homeland. As usual, the devil is in the details.

The “no buy” list would allow the government to silently infringe on the constitutional rights of U.S. citizens based on clandestine proceedings before a secret court. This civil-liberties nightmare is constitutionally reckless. Such Kafkaesque proceedings were once the bête noire of the Left. No longer, since gun-controllers see national-security conservatives as potential collaborators—a classic “Bootlegger and Baptist” coalition. Those on the right who preach fidelity to the Constitution should resist the Siren’s call and refuse to strengthen this dystopian regime.

Regardless of how it is crafted, this proposal suffers from three fatal flaws.

First, there is serious reason to question the validity of these behind-closed-door proceedings. A strongly worded 2011 decision by Judge John D. Bates charged that the National Security Agency had repeatedly mislead the FISC on its oversight of domestic surveillance and had violated the Constitution for years. If Edward Snowden’s revelations have taught us anything, it’s that secret proceedings can and will be abused, especially if motivated by the administration’s political agenda. Jeh Johnson, Secretary of Homeland Security Security, has recently taken the position that “meaningful gun control has to be a part of homeland security.” This changed tact is part of President Obama’s long game on gun control—because passing new laws is impossible, the administration prefers to add more and more people to prohibited lists.

Further, imagine the same sort of power in the hands of a Trump administration. Federal agents could clandestinely deny Muslim men — who are disproportionately represented on watch lists — of their civil rights based on unimpeached conjecture. (A good reality check for the next few months is to ask yourself whether you would want a President Trump exercising the same power as President Obama).

Second, even assuming that the evidence is valid, the standard is flawed. Under the Fourth Amendment, if the government can demonstrate to a judge that “probable cause” exists to investigate a person, the police are allowed to search and seize specific evidence in limited places. The Founding Fathers, hardened by King George’s rapacious tax collectors, permitted these temporary searches only to pursue an actual conviction with proof beyond a reasonable doubt. Suspects are not sent to jail based on “probable cause.” This lax standard cannot support a limbo-like dilemma, where a person does not know when his constitutional right was violated, and when — if ever — it may be restored.

Third, and perhaps most troubling, there is no meaningful judicial check on such one-sided proceedings. During these Star Chamber–like inquisitions, only the government can present arguments. The accused, unaware of the hearing, is unable to challenge the government’s evidence. In all likelihood, he would learn of his inclusion only when he flunked a background check. Further, any conceivable appeals process would invariably shift the burden onto the accused to demonstrate why his civil rights ought to be restored. This gets our system of justice absolutely backwards. Under the Constitution, it’s the government that must bear the burden of persuasion when infringing a fundamental constitutional right. Finally, this sisyphean task would be all but impossible for the accused, because the government will not even introduce classified information into the relevant court. Imagine trying to contest evidence you can’t review, relying only on a summary of the charges against you! Meanwhile, during this arduous appeals process—the no-fly list case has been pending in court for over six years—innocent people will have their civil rights trampled on.

I am still stunned that progressives, who for years railed against warrantless wiretaps and secret proceedings before the Foreign Intelligence Surveillance Court have now embraced this Star Chamber because it advances a gun control agenda.