DONEGAN: Abolish the Unconstitutional No-Fly List Before It Is Too Late

[pull_quote_center]Right now, people on the No-Fly list can walk into a store and buy a gun. That is insane. If you’re too dangerous to board a plane, you’re too dangerous, by definition, to buy a gun. And so I’m calling on Congress to close this loophole, now. We may not be able to prevent every tragedy, but- at a bare minimum- we shouldn’t be making it so easy for potential terrorists or criminals to get their hands on a gun that they could use against Americans.[/pull_quote_center]

President Obama made the statement above on Saturday.

Obama’s comments come in the wake of a Dec. 2 mass shooting by alleged terrorists in San Bernardino, California that left 14 dead and 21 wounded. The president’s Organizing for Action non-profit is currently petitioning citizens to urge Congress to close what he refers to as a “loophole” allowing people on the No-Fly list to purchase firearms.

However, the president’s argument assumes that a person’s placement on the No-Fly list proves that he or she is “too dangerous to board a plane.

[RELATED: Federal Judge Rules Current No-Fly List Unconstitutional, House Intel Chairman Calls Ruling “Disaster”]

The No-Fly list is a Bush-era anti-terror watch list on the basis of which the federal government denies people, many of whom have never been accused of a crime, access to air travel. The American Civil Liberties Union has long decried the list as too secretive, too big, and lacking due process both in terms of how individuals wind up on the list and how they go about having themselves cleared from it.

Though many Republicans once argued in favor of the No-Fly list as a way to crack down on terrorists, Obama’s effort to strip gun rights from those on the list seems to have pushed even GOP hawks to to the other side on the issue.

The Hill notes that hawkish Republican Senator Marco Rubio has now taken to parroting the ACLU’s rhetoric on the subject. “These are everyday Americans that have nothing to do with terrorism, they wind up on the No-Fly list, there’s no due process or any way to get your name removed from it in a timely fashion, and now they’re having their Second Amendment rights being impeded upon,” said Sen. Rubio on CNN’s State of the Union on Sunday.

Rubio added, “The majority of the people on the No-Fly list are often times people that just basically have the same name as somebody else who doesn’t belong on the No-Fly list. Former Senator Ted Kennedy once said he was on a no-fly list. There are journalists on the No-Fly list. There are others involved in the No-Fly list that wind up there… Sometimes you’re only on that list because the FBI wants to talk to you about someone you know, not because you’re a suspect. And, again, now your Second Amendment right is being impeded with.

ACLU National Security Project director Hina Shamsi wrote on Monday, “As we will argue to a federal district court in Oregon this Wednesday, the standards for inclusion on the No Fly List are unconstitutionally vague, and innocent people are blacklisted without a fair process to correct government error. Our lawsuit seeks a meaningful opportunity for our clients to challenge their placement on the No Fly List because it is so error-prone and the consequences for their lives have been devastating.

Our clients, among them four U.S. military veterans, were never told why they were on the list or given a reasonable opportunity to get off it. Some were stranded abroad, unable to come home,” said Shamsi.

It is unknown how many people are on the No-Fly list. The Los Angeles Times estimates that around 10,000 of the listed names belong to American citizens. Rubio says that Diane Feinstein’s Denying Firearms and Explosives to Dangerous Terrorists Act, which was voted down by Congress last week, would have restricted the constitutional rights of up to 700,000 Americans who he says are on various unspecified anti-terror lists.

[RELATED: Historic: Feds Notify 7 Americans of Their Removal from No-Fly List]

ACLU’s Hina Shamsi likened the No-Fly list to a Minority Report style effort at pre-crime and said, “The government has emphasized that it is making predictive judgments that people like our clients — who have never been charged let alone convicted of a crime — might nevertheless pose a threat. That’s a perilous thing for it to do. As we’ve told the court based on evidence from experts, these kinds of predictions guarantee a high risk of error. If the government is going to predict that Americans pose a threat and blacklist them, that’s even more reason for the fundamental safeguards we seek.

The No-Fly list as is already violates Americans’ rights to travel and due process. President Obama’s push to strip gun rights from those on the list has turned Republicans against it and has created a rare opportunity in which support could be generated for abolishing the list entirely. It is time to eradicate this unconstitutional process before it slips out of control. If not, we may be spiraling towards a future in which more and more American rights are denied on the basis that a government bureaucrat has unilaterally placed them on a secret list.

The real No-Fly list loophole is not that people on the list can buy guns, but the fact that government bureaucrats are using it to sidestep American citizens’ constitutional protections.