Some warn that presuming the validity of secretive lists that disproportionately affect Muslim Americans ‘doubles down on hysterical post-9/11 policies’

Attorneys for people caught on the US’s sprawling terrorism watchlists are expressing concern that the latest tactic by gun control advocates is blessing the legitimacy of a process they say threatens civil rights.



As Democrats staged a sit-in on the House floor on Wednesday demanding a vote to prevent people placed on FBI watchlists from purchasing firearms, lawyers and American Muslim rights groups feared the effort tacitly endorsed a system that they have for years argued lacks transparency and basic due process and disproportionately affects US Muslims.

They fear that civil rights concerns over watchlisting are becoming a casualty of political expediency by gun control advocates in a debate supercharged by the massacre of 49 people at an LGBT nightclub in Orlando on 12 June.

“It’s ridiculous, the notion that somehow the watchlists are a reliable measuring stick for who should be deprived of an ability to purchase weapons,” said Ramzi Kassem, a law professor at the City University of New York and director of its Clear clinic, some of whose clients were wrongly watchlisted.

“The discussion on gun control vastly overstates the reliability of the watchlists. They lack transparency and any available process to get off the lists if people believe they’ve been wrongly listed,” Kassem said.

The FBI had briefly watchlisted Omar Mateen, the Orlando gunman, who declared himself an “Islamic soldier” during the slayings, but removed him in 2013 after determining he was a fabricator and not a security threat. A Democratic bill to deny watchlisted people gun purchases failed in the Senate on Monday, contributing to liberal frustration.

Vincent Warren, the executive director of the Center for Constitutional Rights, warned that tying gun purchases to the watchlisting system would entrench a “hysterical” post-9/11 policy.

“We know that there are no meaningful or even at this point knowable ways for determining who’s on a watchlist or should be, and connecting that to gun purchases is only doubling down on a problematic situation to begin with,” said Warren, whose organization also represents people challenging their apparent watchlisting.

“There are many ways the government can limit the use of guns and assault weapons without having to double down on their hysterical post-9/11 strategies.”

An emotional John Lewis, the Georgia congressman who is a civil rights icon and was a lieutenant of Martin Luther King Jr, led the Democratic protest for a House vote on what he called commonsense gun legislation, which would expand background checks and halt those on government terrorism watchlists from gun purchases.

Cory Booker, a Democratic senator from New Jersey who joined the protest, tweeted that the measures sought were about what he termed “closing [the] terrorist loophole” in current gun laws.

While the vast majority of information on the various US watchlists remains hidden from public view, leaks and lawsuits portray a system that permits law enforcement agencies wide latitude for including people and minimal ability for those caught up in it to clear their names.

Nomination for inclusion operates on a standard of “reasonable suspicion” of danger, which guidelines obtained by the Intercept do not clearly define, but is significantly less restrictive than the probable-cause standard underlying judicial warrants. Acceptable evidence for watchlisting, termed “minimum substantive derogatory standards”, include social media posts and even the manner of someone’s walk.

The master list, maintained by the National Counterterrorism Center and known as the Terrorist Identities Datamart Environment (Tide), permits relatives, including children, of watchlisted persons to be included. A recent lawsuit revealed that a seven-month old baby had been placed on the no-fly list, a Tide derivative.

The 'No Fly List' operates in secret, and its power to exclude is vast | Jeffrey Kahn Read more

Because the watchlisting process occurs in secret, those placed upon it are not notified, nor is there a formal process for challenging a determination to list. Those who find they are unable to fly and suspect watchlisting are able to file a “redress request” with the Department of Homeland Security, but even reinstatement of flying benefits does not protect against future watchlisting.

Once watchlisted, according to various lawsuits, the FBI uses inclusion on the no-fly list as leverage to force people into becoming informants. Some also charge that the no-fly list is also a mechanism to retaliate against those who refused to become government assets.

“There’s no constitutional bar to Congress’s reasonable regulation of guns, but what’s so problematic about this current debate is that it relies on and presumes the validity of a broken terrorism watchlist system,” said Hina Shamsi, the director of the American Civil Liberties Union’s national-security project.

“As we have long documented and warned, the watchlisting system is error-prone, unreliable and unfair. It uses vague and overbroad criteria and secret evidence to place people on watchlists, and it denies them a meaningful process to correct government error and clear their names.”

CUNY’s Kassem pointed out that those known to have been watchlisted are overwhelmingly Muslim, raising the specter of both a disproportionate impact from an opaque system and gun control advocates effectively sacrificing a politically vulnerable minority group.

“The vast majority of people on these watchlists today are not going to be your white Anglo-Saxon Protestants, and I’m guessing most people involved in the debate know that,” Kassem said.

“It would definitely be remiss if in the end the government were to pile on this one additional disability to the other disabilities that come with being on these watchlists. Then, obviously, that is going to be one more deprivation that disparately affects American Muslims and some others.”