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Tuesday, December 22, 2015

ANALYSIS/OPINION:

Federal government lists are vulnerable to inaccuracy, and misuse by politicians to push political agendas. The proposal to use the no-fly list as the basis for stripping U.S. citizens of constitutional rights is a case in point. Regardless of one’s position on gun control, using a secret government process to tinker with the Bill of Rights is wrong, and very dangerous.

“What could possibly be the argument for allowing a terrorist suspect to buy a semi-automatic weapon?” President Obama recently asked, suggesting falsely the no-fly list is a list of known terrorists, inferring that using it would have made a difference in San Bernardino, although the names of neither of the San Bernardino terrorists appeared on it. In his exploitation of yet another terrible gun tragedy, the president has created a false argument, politician-speak, internally consistent, but based on untruths. Who indeed would argue for allowing terrorists to buy semi-automatic weapons?


The problem is not people the president would have you believe want terrorists to have guns, but politicians, lacking imagination, who want to use a flawed, unreliable, secret government process to brand U.S. citizens as terrorists, without a court hearing, and then deny them their constitutional rights.

The no-fly list is demonstrably inaccurate, a product of subjective decision-making, using the lowest possible legal standard of proof, to identify people “reasonably suspected to have engaged in terrorism or related activities.” The courts recognize the standard, but it is not enough to arrest or indict anyone, or even get a search warrant, much less a criminal conviction. It’s best described as gut instinct, the kind that allows a police officer who sees something not quite right to stop people briefly, and question them about what’s going on. The president would use gut instinct to tinker with fundamental freedoms.

There is no shortage of stories about Americans wronged by the no-fly list: children under 5, a Marine returning from Iraq, a brigadier general, Sen. Ted Kennedy, Rep. John Lewis, Rep. John Young, reputable journalists, outspoken political figures, the list goes on and on. In some cases, the mistake is so egregious that it helps the victim to muscle their way through an opaque bureaucracy to get off the list, but that is not true for most folks. For them, redress is virtually nonexistent, a fact recognized as a violation of the Constitution by at least two federal courts. A classified government document, leaked in 2014, showed that about 40 percent of people on the watch list had “no recognized terrorist group affiliation.” This is the president’s list of “terrorist suspects.”

Other politicians propose to use a different list, or maybe create a new one. Regardless, the list will be no better than those that already exist because the federal government is incompetent when it comes to building or maintaining lists containing our names. Take the Terrorist Watchlist, for example. Just this month, an investigation discovered there were at least 72 Department of Homeland Security employees on it. You can’t make this stuff up.

Then there’s the government’s Social Security list. It’s important to our security, because Social Security numbers enable people to get driver’s licenses and validate their identities, like the Sept. 11 hijackers did. It contains 6.5 million people who are very lucky, indeed, because they are more than 112 years old.

My personal favorite list is the Death Master File, a list of people who have died, against which government officials check the names of people receiving federal payments to be sure they’re not defrauding U.S. taxpayers. In 2013, Social Security and the federal employees retirement fund alone paid more than a half-billion dollars to dead people.

Predictably, any suggestion that politicians might use a bad list to promote their political agendas produces outrage and righteous indignation. Yet let’s not forget Sen. Joseph McCarthy, who said, “I have here in my hand a list of 205 — a list of names that were made known to the secretary of state as being members of the Communist Party and who nevertheless are still working and shaping policy in the State Department.” A climate of fear enabled “Tail Gunner Joe” to destroy people for political gain. Substitute the word terrorists for Communists, and perhaps in the current climate, rather than listen to politicians who exploit tragedy, we should pause before using a list to curtail basic constitutional rights.

For sure, terrorist lists can be useful, but they’re built to be like dumpsters. All manner of information is kept in them, some good, some bad, until it is thrown away. If there’s an incident, or even just suspicion, government officials can go through them, looking for clues. Dumpster diving can produce incredibly valuable finds, but one must begin knowing such repositories also contain garbage.

Sometimes people become so invested in winning they lose perspective of the fight. Mr. Obama wants to use a secret government list to indict U.S citizens as terrorists, without proof, and deny them protections afforded by the Bill of Rights. He wants to do it not by consulting with the people’s representatives in Congress but by executive fiat. It is truly breathtaking. Libertas, the goddess of freedom, has averted her eyes and is weeping for America.

Bruce Lawlor, a retired U.S. Army major general, was a member of the Homeland Security Advisory Council and the former chief of staff of the Department of Homeland Security.


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