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No-Fly, No Buy: After Orlando, Senate Expands the State of Terror

With Omar Mateen’s Orlando shooting, new fears of terrorists turning to firearms surged, driving Senate debates on gun control measures that ultimately failed. “No-fly, no buy” was a familiar slogan, referring to the seemingly common sense suggestion on how individuals banned from aircraft should be prohibited from gun purchases. By pushing these kneejerk policies, however, Senate Democrats and Republicans have unwittingly endorsed a pernicious regime where suspicions “presumptively” suggest guilt, instead of pursuing much-needed reforms of the national background check system.

One of the measures, by Senator Dianne Feinstein (D-CA), called for individuals on the terrorist watch list, AKA the FBI’s Terrorist Screening Database (TSDB), to be examined by the attorney general before purchasing firearms. TSDB is a list containing one million names, of which approximately 5,000 are in the US according to the FBI. Because the TSDB is a compilation of eleven lists, the actual no-fly list is much smaller, with 81,000 names, of which 1,000 are US individuals; the “selectee list” which may require additional inspections of passengers or ban them from flights, contains 28,000 names and 1,700 Americans.

The picture painted by documents leaked to The Intercept in 2014 is bleak. To be on the terrorist watch list, you don’t have to be a risk for bodily harm—damage to property, if meant to intimidate a government, counts too. Uncorroborated sources like social media or walk-ins and “fragmentary information” may contribute to a nomination to the list. In developing the new concept of “reasonable suspicion,” far below “reasonable doubt,” guidelines say that “irrefutable evidence or concrete facts are not necessary, to be reasonable.”

Individuals without ties to a US-designated terrorist organization may be labeled, along with their known associates and family, regardless of the actual nature of their connection.

The colossal flaws in the system, which President Obama previously called a “systemic failure,” have led to its failures time and again. In 2005, 38% of a sample of its records had errors, and three years later, it still did not consistently update its records. In 2012, the Government Accountability Office stated that the list was consistently reactive to threats—its size doubled in response to the 2009 attempted bombing of Northwest Flight 253, with agencies consistently sending information after attacks, rather than before. In addition it is practically impossible to be removed from the secret list.

Although Feinstein’s measure did not call for an outright ban, executive agencies have a lackluster track record of challenging nominations to the watch list. Fewer than 1% of nominations to the list have been rejected, as they are “presumptively valid”—the reversal of our justice system’s presumption of innocence.

The logic of “no-fly no buy” assumes that the no-fly list, or perhaps more broadly, the terror watch list, should be the benchmark for firearm purchases. Instead of endorsing a culture that presumes guilt and to protect Americans from gun violence, legislators and agencies must instead reform the national background check system and use the terror watch list as an investigative tool, rather than a preventative one, so long as names are added willy-nilly to the list.

The National Instant Criminal Background Check System (NICS) offers a system governed by far greater transparency, and far more rigorous standards of evidence, than systems regulated by the intelligence community. It is an opportunity for law enforcement to prevent crime without the heavy-handed and spurious tools of a “national security” ruse. But without a comprehensive overhaul on the entry mechanism in every state, background checks will do little to prevent violence. From 2004 to 2011, just a dozen states reflected the vast majority of a million entries in the National Instant Criminal Background Check System (NICS). Nearly half of all states increased entries by fewer than 100 each. The complete repeal of regulations requiring background checks in states like South Carolina has further hindered the effectiveness of NICS.

By linking issues of gun control to the vague notions of “terrorism” and “reasonable suspicion,” Democrats and Republicans have demonstrated that they are willing to accept the status quo of labeling thousands of Americans as “suspected terrorists,” regardless of whether the evidence against them is anything more than a passing whim. It seems as though in the wake of tragedy, too often, all judicious reasoning protecting due process is lost.