The Time for Silence is Over

Rep. Nita Lowey of New York was the congresswoman who introduced the so-called “no-fly, no-buy” amendment that was at the heart of yesterday and last night’s disruptions in the House of Representatives. She described it as being identical to the language that Sen. Diane Feinstein of California had introduced the week prior.

It gives the Attorney General the authority to block the sale of firearms to known or suspected terrorists, if the attorney general has a reasonable belief that the firearm would be used in connection with terrorism. It also requires the Attorney General to establish procedures to ensure that the DOJ is promptly notified if an individual who has been investigated for terrorism at any point in the past five years attempts to purchase a firearm.

Lowey had some talking points that she presented in support of her legislation. She pointed out that under federal law there are nine categories of people who are presently restricted in their ability to purchase firearms, including “convicted felons, domestic abusers, and the seriously mentally ill,” but that people suspected of having ties to terrorist organizations are not on the list.

Now, civil libertarians have expressed a number of concerns about this legislation. One major problem they have is with the way the government creates its watch list for terrorists. Many people have been citing a July 2014 Intercept piece by Jeremy Scahill and Ryan Devereaux entitled THE SECRET GOVERNMENT RULEBOOK FOR LABELING YOU A TERRORIST and a follow-up piece they published in August 2014 named WATCH COMMANDER: Barack Obama’s Secret Terrorist-Tracking System, by the Numbers. That piece relies on leaked and court-divulged government documents that reveal that the watch list has grown in size tremendously in recent years to somewhere between 680,000 and 1.5 million individuals.

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And over a quarter million people are on this watch list who have “no recognized terrorist group affiliation.”

So, for starters, there’s a concern that this dragnet is a very imprecise and blunt instrument. Then there’s the concern that it’s a secret list, which means that you cannot find out if you’re on it and there’s not much you can reasonably do to get off of it. Another concern is that it has a disparate impact on certain groups of Americans.

The top five U.S. cities represented on the main watchlist for “known or suspected terrorists” are New York; Dearborn, Mich.; Houston; San Diego; and Chicago. At 96,000 residents, Dearborn is much smaller than the other cities in the top five, suggesting that its significant Muslim population—40 percent of its population is of Arab descent, according to the U.S. Census Bureau—has been disproportionately targeted for watchlisting. Residents and civil liberties advocates have frequently argued the Muslim, Arab and Sikh communities in and around Dearborn are unfairly targeted by invasive law enforcement probes, unlawful profiling, and racism.

To sum up, there’s legitimate worry that the list itself is not very good, that it denies people due process, and that it has a disparate impact when it is used to deny people rights, like the right to board an airplane or (as now proposed) to purchase a firearm. These are some of the reasons why the ACLU opposes the Feinstein/Lowey legislation. Republican opponents raise some of the same issues.

The question, then, is whether the sit-in the Democrats waged yesterday and the fuss they made in the Senate before that are in the service of bad legislation that would ratify a badly flawed system that is already being misused for the no-fly system. Would it grant even more power to the FBI which they could then expand or misuse?

If you restrict yourself to seeing this kerfuffle as about the merits of this proposed legislation, then the answer to those questions is surely ‘yes.’

But this is not a fully developed appreciation of what is going on.

To start with, the Democrats are responding to yet another massacre in which dozens of people were killed or injured in mere minutes by the use of a power semi-automatic rifle. In the 2012 Sandy Hook massacre, 26 people were gunned down in approximately five minutes. In the 2012 Aurora massacre, seventy people were shot. In Aurora, the police arrived within 90 seconds of receiving a call. In Sandy Hook, the first police car was there four minutes after they were notified of a shooting situation. Congress has had no answer for how we might prevent or reduce the frequency and lethality of these types of attacks.

What the Democrats are trying to do is break grip the National Rifle Association has on Congress. The heart of that effort has been to leverage overwhelming public support for expanded background checks, but that legislation has gone nowhere. The effort to impose a “no-fly, no-buy” provision will likewise go nowhere in this Republican-controlled Congress, but it also enjoys overwhelming public support. By trying to force votes on these two issues, the Democrats are highlighting the Republicans’ refusal to address the problem of the ready availability of extraordinarily lethal firearms. Whether the Republicans cast votes or refuse to allow them (as they have done by recessing until after July 4th), this puts them badly on the wrong side of public opinion and heightens their vulnerability to electoral defeat.

It’s not a cynical ploy to gain power. It’s a recognition that all avenues are blocked except getting more power. So, the way this gambit should be judged is on whether it works politically, and not so much on whether the watch list is a flawed mechanism for restricting the rights of anyone for any purpose.

In my opinion, if nothing happens, the watch list will continue to have flaws and it will continue to expand. But, if the watch list were to actually be used to restrict gun ownership, the Republicans would suddenly care about those flaws and want to do something to make sure that folks have due process, the right to appeal, and that conservatives aren’t disproportionately impacted. Conservatives tend not to have empathy until they’re personally impacted. When Arlen Specter got sick, he became a champion of the National Institute of Health, and when Rob Portman discovered he had a gay son, he suddenly saw the light on gay marriage. If Republicans think the watch list only inconveniences Muslims from Dearborn, Michigan, they’ll never have any interest in fixing its flaws. But if it impacts one of their assault-rifle loving constituents who can’t figure out how to get taken off this list? That will interest them.

Likewise, if the Democrats ever had the power to enact meaningful restrictions on semi-automatic rifles, they probably wouldn’t choose this route. And, if they did, they’d listen very carefully to the concerns raised by the ACLU. In other words, neither side cares too much about the watch list today, but they’d both care a lot about it if it were actually going to be used to restrict gun ownership.

Maybe the more cynical will totally reject my prediction here. It’s hard to argue with diehard cynics. What I will concede is that there are legitimate concerns with the way the Democrats are touting the efficacy of a badly flawed system. If you’ve been trying to get people organized to rein in the government’s watch list program, this has to be pretty discouraging. It’s just, as I’ve said, that I think this could ironically give their efforts a major boost.

There are a lot of other people, though, who haven’t been concerning themselves with the watch list. They’ve been concerned with high-casualty shooting sprees (and gun violence in general). And they’ve had enough of inaction. Listen to John Lewis:

That is what this is actually about. The time for patience is long gone. We must find a way from no way. It is time to dramatize the need for action. There comes a time when you have to make a little noise. The time for silence is over.

So, what we’ve just witnessed is an act of determined and strategic organizing. It is about making the impossible possible. It’s about breaking the grip of the NRA on our Congress and getting some movement on an issue that the American people want to see addressed.

Maybe it works, maybe it doesn’t. But to nitpick the effort is to miss the point and to dismiss the urgency.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.