“Every single day countless Americans are misidentified as terrorists,” said Rep. Yvette Clark, D-New York, in 2009 about the watch lists kept by the U.S. government to monitor suspected terrorists.
“We can’t just throw a bunch of names on these lists and call it security,” said Rep. Bill Pascrell, D-New Jersey, in 2010 after an eight-year-old in his district had trouble getting off the so-called “no-fly list” after being mistakenly placed on it.
“A curious and interesting and troubling phenomenon,” said Rep. Sheila Jackson-Lee, D-Texas, at a 2008 hearing on the no-fly list after a CNN reporter was placed on it.
During the George W. Bush and early Barack Obama years, Democrats castigated government terror watch lists — which were expanded in the wake of 9/11 — as exhibit A of security state overreach.
They pointed to the inclusion of children, journalists, musicians, and some of their colleagues — including Sen. Ted Kennedy, and Reps. John Lewis and Loretta Sanchez — as evidence that government watchlists are deeply flawed.
On June 12, though, when a shooter claiming allegiance to ISIS walked into an Orlando nightclub and killed 49 people, the politics of gun control got mixed up with the politics of terrorism.
That attack, along with the spree that killed 14 people in San Bernardino in December, has had the effect of complicating the Democrats’ position on the terror watch lists.
In the wake of the shootings, Democrats are pushing hard — including mounting a 25-hour sit-in that shut down the House — for Congress to do something, or at least take a vote, on gun-control measures. Among the proposals: bills to restrict access to firearms from people on terror watch lists.
The once-decried watchlists are now a key piece of the party’s gun-control agenda. Why have Democrats changed their tune on the watch lists they used to attack?
What we know about the government lists
Before considering the politics of the terror watch list, it’s important to establish what, exactly, the lists are. The government keeps several classified lists to monitor terror suspects: the main list, maintained by the FBI, is called the Terrorist Screening Database, but is often referred to as just the terror watch list.
No one knows for sure exactly how many people’s names are on the list right now, or what their names are. The government also won’t notify you if you’re on the list, nor will authorities tell you how to get off it.
It’s believed there are somewhere around 700,000 to one million names on the terror watch list, which is updated on a daily basis.
There are a few subsets of that broader database. One that is getting a lot of attention from Congress is the “no-fly” list, which contains people who are not allowed to fly to, or within, the U.S. It could number as many as 80,000 people, though only a small fraction of that is believed to consist of U.S. citizens.
The FBI also maintains something called a “selectee” list, consisting of people who are not banned from flying but are flagged by the Transportation Security Administration for enhanced screening at airports. Lawmakers say that list numbers around 25,000 people, with approximately 1,700 of them U.S. citizens.
The broader terror watchlist, the no-fly list, and the selectee list have received criticism over the years for being determined with vague criteria and lax accountability mechanisms.
How exactly the government selected terror suspects for those lists had been kept under wraps for some time. But in 2014, the Intercept published an internal government report detailing how those on the list are selected.
Their analysis of the report argues the government operates on presumption of guilt until proven innocent, using elastic criteria and little concrete evidence to determine those likely to be terrorists. Subjective interpretation of social media posts and anonymous tips are often all it takes to get someone onto the list.
Because of all that, critics say, authorities sweep up innocent people onto the list, which ends up being ineffective in detecting actual terrorists. The Orlando shooter and the San Bernardino shooters were not on the watch lists when they carried out their attacks.
Beyond that, those in the Arab- and Muslim-American communities have alleged that the FBI’s lists unfairly target them. The Michigan chapter of the Council on American-Islamic Relations, a Muslim-American advocacy group, filed two suits against the federal government in April for unfairly placing Muslims on watch lists without due process. One case was filed on behalf of 18 Muslim-Americans put on the list, including a four-year-old.
Democrats: lists aren’t perfect, but they should be used
In the aftermath of the two mass shootings carried out by perpetrators with possible terror links, Democratic lawmakers are arguing that there is a meaningful public safety interest in blocking people on the watch lists from purchasing weapons — even if they don’t belong there — and sorting grievances out later.
Minnesota Sens. Amy Klobuchar and Al Franken support the “no fly, no buy” proposal, which is in the form of a compromise amendment brokered by Sen. Susan Collins, R-Maine.
It would block those on the no-fly and selectee lists from purchasing firearms — covering a total of about 110,000 people and 2,700 Americans, according to the New York Times.
Klobuchar said in a statement that her experience as a prosecutor makes her aware of the importance of due process, and said “proposals I have supported contain due process protections, including a redress process for people who believe they have been wrongly placed on a watch list.”
That’s true: Collins’ bill allows people who believe they are wrongly on the list to appeal the government. The government has 14 days to find if they were wrongly denied a firearm; if they are cleared, the government must reimburse any legal fees.
Still, they would not be able to obtain weapons while the appeal is ongoing, a sticking point for many Republican opponents.
Franken said it is important to close what he called a “loophole” while laying out a clear appeals process like the one included in Collins’ bill.
“As it stands now, there are a number of categories of individuals who can be denied a firearm… but known or suspected terrorist is not one of those categories,” he said. “We must give the Attorney General the authority to prevent known or suspected terrorists from getting guns through a licensed dealer.”
Franken added that he also believes implementing stronger background checks would be an ideal complement to the measure, though background check amendments failed in the Senate on Monday.
On Thursday afternoon, Collins’ bill survived a procedural motion in the Senate that would have dismissed it, but it got more tepid support than expected. Ultimately, 8 GOP senators joined with 43 Democrats and one independent (California Democrat Sen. Dianne Feinstein and Vermont Independent Sen. Bernie Sanders did not vote) in supporting Collins’ measure.
That was enough to keep it on the table, but supporters will need to convince six more Republicans to get on board for the bill to pass.
Ellison: ‘Make sure it’s an accurate program’
While the Senate voted, Democrats wrapped up a dramatic sit-in on the House floor in which they demanded GOP leadership allow them to vote on the kinds of gun control bills the upper chamber did. (Instead of acceding to the demands, House Speaker Paul Ryan and the Republican majority chose to adjourn through Independence Day.)
Most Republicans have long said that the watch lists are necessary tools to maintain U.S. national security, even if they present due process and accuracy concerns.
But with gun politics in the mix, party leadership in both chambers is opposing measures to prevent those on the watch list from purchasing weapons, as they have opposed virtually all gun-control measures.
Minnesota’s three Republican representatives voted last week on a procedural measure to block the House from considering a no fly, no buy law.
Not all House Democrats are comfortable with the use of watch lists for gun control: Seventh District Rep. Collin Peterson was the only Democrat to join the Republicans in the vote to block.
He told the Star Tribune he doesn’t want terrorists to have guns, but said he “doesn’t trust” government watchlists as the basis for that objective.
Fifth District Rep. Keith Ellison is the kind of Democrat you might think would be skeptical of a Collins-style proposal. In 2014, he criticized the National Security Agency for spying on Muslim-American community leaders, and claimed that some FBI training materials were “hateful” and “anti-Muslim.”
But Ellison was an active participant in the sit-in, and says he’d vote yes on “no fly, no buy” legislation. That underscores how fully his party has turned around on the topic, but Ellison made a point of saying the lists need to be improved.
“I also would say, make sure it’s an accurate program. They are two separate issues in my thought,” he told MinnPost. “Let’s also say, let’s implement this program so people who don’t deserve to be on it have a way off it.”
Ellison ultimately echoed his party’s rallying cry during this week’s sit-in.
“If law enforcement has deemed you to be so dangerous that you can’t get on an airplane, then maybe you shouldn’t be able to go get a gun,” he said.
“I’m happy to suspend your right to get a gun to sort out whether you should be in that program or not.”