The nation’s leading civil liberties organization is not opposed to efforts to deprive people on U.S. terrorism watch lists of their constitutional rights, but it says the watch lists themselves need to be reformed first.
The American Civil Liberties Union sees no constitutional problem with preventing people on the watch list from buying guns, for example. But the means by which they are placed on the list, and their options for clearing their names, must be more transparent.
Congress recently voted down legislation to prohibit those on terrorism watch lists from buying firearms. President Barack Obama backed the effort in an Oval Office speech on Sunday night.
The legislative fight prompted contretemps from some leading voices of the intellectual left that had, until recently, warned of terrorism watch lists’ fundamental constitutional problems.
"There is no constitutional bar to reasonable regulation of guns, and the No Fly List could serve as one tool for it, but only with major reform," said Hina Shamsi, director of ACLU’s National Security Project, in an emailed statement.
Shamsi noted that the ACLU had not taken a position on the legislation to restrict the Second Amendment rights of people on the watch lists.
The group estimates that as many as a million people are currently on federal terrorism watch lists, including the smaller no-fly list. It is currently suing the Department of Justice over claims that the criteria for inclusion on the no-fly list is vague and overbroad, and "that the inadequate redress process for people on the list violates the Constitution’s guarantee of due process."
Those complaints are similar to criticism of Sen. Dianne Feinstein’s (D., Calif.) legislation last week. Republicans said it would deprive Americans of their constitutional right to bear arms without due process.
According to the FBI, there were about 8,400 American citizens and legal permanent residents on terrorism watch lists in 2011.
"Grave threats to our country will not be averted by using watch lists as a blacklist to deny employment, licenses or other contracts to individuals," said Michael German, then an ACLU attorney, in a 2010 column.
"In these facets of everyday life, a more than adequate opportunity exists to conduct thorough background checks, and reliance on flawed watch lists poses an undue risk to individual civil liberties," German wrote.
Those arguments were widely shared on the political left prior to the intersection of controversies over terrorism watch lists and gun control efforts.
"This would be laughable if it weren’t such a violation of basic rights," wrote the New York Times editorial board in a 2014 opinion piece on terrorism watch lists’ criteria for inclusion. "A democratic society premised on due process and open courts cannot tolerate such behavior."
However, when the question was gun control, the same editorial board changed its tune. It blasted congressional Republicans in a historic front-page editorial over the weekend for sinking efforts to condition gun ownership on what it described a year earlier as "the shadowy, self-contradictory world of American terror watch lists."
The watch list debate has been reignited by a shooting in San Bernardino, California, last week perpetrated by two individuals apparently acting in the interests of the self-proclaimed Islamic State
Neither of the shooters was on a terrorism watch list.