On “Gun Rights for Terrorists”

This post is a much needed deconstruction and critique of a New York Times opinion piece titled ‘Gun Rights for Terrorists’, by Mary Lewis Grow.  Go ahead and read it, though I’ll be quoting and paraphrasing liberally.

The author’s complaint is that “Those on the terror watch list are free to buy and own unlimited firearms in the United States.”

First, ‘terror watch list” is not, technically, a thing, though the phrase almost always refers to the Terrorist Screening Database, and indeed Grow’s discussion of the list links to last year’s leaked documents (‘Watchlisting Guidance’, by way of The Intercept) on the TSD.  When in 2008 the ACLU reported that the watch list contained 900,000 names, the FBI claimed that because of the inclusion of aliases this actually represented closer to 300,000 people, of which 5% were American citizens.  Since then, the list has grown: last year’s leaks describe the Watch List as having over 680,000 people.

These numbers are noteworthy because Grow later claims that over one million people are on the watch list.  This appears to instead reference the TIDE list, which contains over 1.1 million people, but ‘only’ means that various agencies will try to compile a dossier on the person and their activities, without actually interfering with the suspect’s life at all.  Grow either does not know, or does not care, about the distinctions between these lists – and neither does she seem to care about the distinction between people and names.

Heaven forbid you have a relatively common name and try to order some electronics parts.  Of course names are added to the list because of individual suspects, but it is the names that are flagged in airports and during traffic stops (and, apparently, when you attempt to order certain things).  So, when Grow claims in horrified tones that people on the list managed to complete weapons purchases 90% of the time, we may just be looking at the proper result of innocent people being allowed to legally purchase the weapon after the background check indicated that only their name – not their person – was flagged.  Grow slides right over this possibility.

We have, at this point, gotten over the factual and bureaucratic background behind the article, leaving a chain of poor reasoning and internal contradictions still to go.

Grow argues that well-publicized problems with the No Fly List list should not prejudice opinions to the Watch List or on these lists in general.  This is weirdly backwards, since the No Fly List had only 47,000 people on it in 2013 while the Watch List had over 680,000 (or, over a million if you’re Mary Grow).  If such problems are widespread in the more selective No Fly List, why should we dismiss the possibility in a list over twelve times larger?  It took a protracted and expensive legal battle to make the government declare whether or not some plaintiffs were on the No Fly List.  The same secrecy applies to the Watch List, but as names on that list ‘only’ get hassled it is easy to argue that few are willing to pay the costs required to make the problems in the Watch List well-publicized.  The obvious problem with these lists is, of course, the disconnect between the 680,000 to 1.1 million people (depending on the list) under some level of extra scrutiny by the government and the handful of actual terrorist attacks on the U.S. in the decade and a half since 9/11.  Betting on a listed person actually being a terrorist might be marginally safer than a lottery, but not by much – and that’s assuming all those events involved people who were, in fact, on one or more of the lists.

Next, Grow claims only a small percentage of people on the list are U.S. citizens.  This is, apparently, true.  As mentioned above, the FBI claimed that the proportion was 5% – small, but not insignificant.  More recent articles claim it’s 2%.  That’s still 13,600 U.S. citizens, and we have already found that people with the wrong names can have many of the penalties of being on the list without actually being placed on the list, but fine.  The problem is, Grow’s desired policy is to restrict the sale of guns in the United States.  It is a stupefying contradiction to first claim that people on the list are a major domestic terrorism threat, and then to claim we (citizens) need not worry about legal rights because almost everybody on the list isn’t a citizen.  Presumably, Grow expects that 666,400 of the twelve to thirteen million legal aliens in the country (who would be the ones capable of buying guns legally and passing the aforementioned background checks) are terrorists – a little over 5% of the total.  By Grow’s logic, closing the borders is looking pretty good.

Later in the same paragraph, Grow says the following:

“Among the objective criteria that cause someone to be listed are active membership in an organization devoted to jihad, a record of transfers of money to a terrorist organization, and the incitement of acts of terrorism.”

Do you see that?  ‘Among the objective criteria…’  She does not say objective criteria are the only ones.  That leaked document she links to (the same ‘Watchlisting Guidance’ already mentioned) includes such interesting lines as ‘concrete facts are not necessary’ to add someone on the list, and that almost 40% of the people on the list have ‘no known terrorist group affiliation’ (ruling out such affiliation-dependent objective criteria such as the the membership, monetary support, or incitement).  Again, someone can be ‘listed’ by merely having the wrong name.

Now for the third sentence in this three sentence paragraph.  Grow claims that “Civil libertarian concerns should be allayed by the fact that there is an appeals process for those who say they have been misidentified.”  This is false.  To quote the Guardian on this subject:

There is no procedure to challenge and reverse your status on the no-fly list, the terrorism watchlist or TIDE. Inclusion on any is not typically disclosed – making legal remedies difficult – nor does the government provide any process for removal. Travelers suspicious about why their attempts to fly were unsuccessful can launch a redress request through the Department of Homeland Security, but that process does not challenge inclusion on a watchlist or database, nor will even successful requests guarantee against future travel restrictions.

So much for Grow’s appeals process.  It’s particularly aggravating that Grow actively closes off the opportunity for appeals later, when she says:

The attorney general would be given the authority to approve or deny firearm or explosive purchases by a terror suspect, so the option not to tip off the suspect would remain intact.

Besides contradicting Grow’s optimism on access to an appeals process, this contradicts her stated goal of keeping people on the list from buying guns.

So what are we to make of this?  Grow is listed as the co-founder and a board member of a gun violence prevention non-profit, which strongly suggests her motive and purpose is restricting gun sales, not preventing terrorism.  Grow would no doubt claim those are related goals, but her proposed twisting of a program already under attack on constitutional grounds (fourth and fifth amendments) to restrict another constitutional right (the second amendment) seems a very poor method.  Indeed, it confirms the worst suspicions of the “small, extremist sliver of the gun-owning population” that believe even the most well-meaning restrictions on gun ownership to be thinly disguised attempts to bypass the constitution.  Mary Grow’s intentions may be good, but her article aids neither national security nor gun control.

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