Classical Values :: Your rights are an "odd divergence from federal law"

June 21, 2009

Your rights are an "odd divergence from federal law"

In an incident which Secretary of State Condoleezza Rice called "embarrassing" last year, bumbling bureaucrats (if that isn't too much of a redundancy) placed the elderly and venerated South African leader Nelson Mandela on the infamous "terrorist watch list":

WASHINGTON -- Nobel Peace Prize winner and international symbol of freedom Nelson Mandela is flagged on U.S. terrorist watch lists and needs special permission to visit the USA. Secretary of State Condoleezza Rice calls the situation "embarrassing," and some members of Congress vow to fix it.

At the time, Homeland Security Director Michael Chertoff observed that the incident raised a "troubling and difficult debate" about who gets placed on the list, and why:

Homeland Security Secretary Michael Chertoff says "common sense" suggests Mandela should be removed. He says the issue "raises a troubling and difficult debate about what groups are considered terrorists and which are not."

When ANC members apply for visas to the USA, they are flagged for questioning and need a waiver to be allowed in the country. In 2002, former ANC chairman Tokyo Sexwale was denied a visa. In 2007, Barbara Masekela, South Africa's ambassador to the United States from 2002 to 2006, was denied a visa to visit her ailing cousin and didn't get a waiver until after the cousin had died, Berman's legislation says.

Moving forward a year, the debate became more troubling when the DHS (under Chertoff's replacement Janet Napolitano) suggested that right wing groups (such as anti-abortion protesters, certain veterans, and people overly concerned with the loss of their Second Amendment rights) should be watched.

...Rightwing extremism in the United States can be broadly divided into those groups, movements, and adherents that are primarily hate-oriented (based on hatred of particular religious, racial or ethnic groups), and those that are mainly antigovernment, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely. It may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration.

Whether these people were (like Nelson Mandela) added to the no-fly" list, who knows? The list is kept "confidential" --which means government employees, airline security people, police, and no doubt "private investigators" for a fee, can access it. The ACLU estimates that there are a million Americans on the list, and there have been complaints that even credit scores are factored in:

Among the complaints about the No Fly List is the use of credit reports in calculating the risk score. In response to the controversy, Transportation Security Administration (TSA) officials said in 2005 that they would not use credit scores to determine passengers' risk score and that they would comply with all rights guaranteed by the First and Fourth Amendments.

Somehow I don't find any of this reassuring. (The Wiki piece has a long list of false positives, including many children and people with common names.) However, it has to be recognized that this list was generated for use during the war on terror, and that there is no constitutional right to fly on a plane. It's an extraordinary measure passed for an extraordinary time. As I keep saying about the extraordinary measures adopted during the war on terror, it would have been one thing if their use had been limited strictly. The abuses are out of control and in light of recent news, things are getting worse.

In that regard, Glenn Reynolds linked a most recent development I consider very ominous, in the form of a New York Times article which reads more like an anti-Second Amendment infomercial than a news story. Author Eric Lichtblau (who seems to have jettisoned his normal concern with civil liberties) seems unpleasantly startled over the fact that the many people who managed to get on this list have not had an important constitutional right taken away:

WASHINGTON -- People on the government's terrorist watch list tried to buy guns nearly 1,000 times in the last five years, and federal authorities cleared the purchases 9 times out of 10 because they had no legal way to stop them, according to a new government report.

In one case, a person on the list was able to buy more than 50 pounds of explosives.

The new statistics, compiled in a report from the Government Accountability Office that is scheduled for public release next week, draw attention to an odd divergence in federal law: people placed on the government's terrorist watch list can be stopped from getting on a plane or getting a visa, but they cannot be stopped from buying a gun.

Odd divergence?

Has a fundamental constitutional right now become an odd divergence?

What is an odd divergence from the American tradition of freedom is the watch list itself, but the reason people have acquesiced to it is because of its emergency nature and the fact that it is not supposed to take away fundamental constitutional rights. Like the right to keep and bear arms.

Or free speech.

Would the Times consider it an "odd divergence" that "people placed on the government's terrorist watch list can be stopped from getting on a plane or getting a visa, but they cannot be stopped from writing or speaking"?

There's an elderly liberal senator who may think so, for he believes that the failure of the no-fly list to deprive citizens of their constitutional rights is a "glaring omission"

"This is a glaring omission, and it's a security issue," Senator Frank R. Lautenberg, the New Jersey Democrat who requested the study, said in an interview.

Mr. Lautenberg plans to introduce legislation on Monday that would give the attorney general the discretion to block gun sales to people on terror watch lists.

There's a serious problem with this. People on the no-fly list are placed there for an infinite variety of reasons, and there is no due process, nor is there any right to due process. (I know a man who told me he was placed on the list simply for arguing with airport security.)

I realize that liberals like Lautenberg hate the Second Amendment, and believe that the more people who aren't allowed to buy guns, the better. But this is a grotesque constitutional abuse. With the one hand, they want to expand the no fly list to include right wing political dissidents -- including, in a Kafkaesque twist, Americans who buy guns in fear that their rights will be taken away. And now with the other hand, they want to expand its use to deprive citizens (who haven't even been accused, much less charged with or convicted of crimes) of their Second Amendment rights. (If you're so paranoid that you think we're going to take your guns away, then we should take your guns away!)

I won't mince words here. For even threatening to introduce such a bill, I think Frank Lautenberg has violated his oath of office and disgraced the Senate.

I realize that at 85 he's still a young chap, but he's the best argument for term limits to come along since Robert Byrd.

MORE: My thanks to Glenn Reynolds for the link, and a warm welcome to all!

Your comments are appreciated, agree or disagree.

posted by Eric on 06.21.09 at 12:21 PM

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Comments

It is an odd divergence that the NYT considers it essential to conceal that a reporter was in Taliban custody, and essential to publish classified material leaked from the Bush administration.

Fuck them. I haven't bought a NYT since they published some bullshit about servicemen suicides 3 years past. Fuck them.

dr kill · June 21, 2009 03:05 PM

On trips shorter than 500 miles or so I'm going to take the bus if I don't want to drive.

I hated airport "security" in 1996 and my attitude hasn't improved.

M. Simon · June 22, 2009 06:35 AM

I helps if you understand that much of leftism has become a religion, a particularly intolerant religion.

Think about it, you can't question its tenets or its clerics and if you do, you're not just wrong, you're evil.
Why else would lefties want to talk to Iran but not Foxnews?
It's all about faith. Take one of their major tenets, Global Worming. If you "deny" that the globe is warming (even as it's cooling) or if you notice that the temperature of the Earth closely tracks with how energetic that huge, glowing orb of nukular fire in the sdy is, you're not just wrong, you're on a par with those who deny the Holocaust.

So, since it's a religion, anything done in furtherance of that religion is perfectly okay. The ends justify the means and all that.

Since the ends are universal peace, love, brotherhood and free wi-fi, the means can be pretty brutal.

Eh, I'm still trying to enjoy the Funniest End of Civilization Ever and trying to figure out if it'll end in a huge conflagration or a delayed one after some unknown time in a nanny-state.

Veeshir · June 22, 2009 07:29 AM

I helps if you understand that much of leftism has become a religion, a particularly intolerant religion.
^ It also helps if you understand that much of religion itself implies being particularly intolerant.
Actually, any extreme views tend to make you intolerant, right or left. :-P

Anyway, I can understand what you are saying (seeing as it is merely a watch list and the people haven't been tried and found guilty), but I think we can make an exception for the person who purchases 50 pounds of explosives. Why is that shit even legal for individual citizens? Public safety hazard much?

Katie · June 23, 2009 12:06 AM

You are aware that the ANC is a communist organization correct? And it is long standing US policy to flag and screen communists trying to enter the US.

ParatrooperJJ · June 23, 2009 07:19 AM

Lets see, 50 lbs of explosive. A farmer may use that to blast stumps. A miner may us explosives. Or a person who makes fireworkes or explosive targets for shooting.

Explosives are useful for a lot of purposes and not that they are to be used to destroy property or human life. After all Nobel invented dynamite, a stable exposive that was considered a boon to man's development.

RAH · June 23, 2009 07:23 AM

I used over 100 lbs of TNT to do some excavating back in the '80s. Rocks are HARD!

PeteP · June 23, 2009 08:21 AM

No Katie, you cannot. Five hundred 12 gauge shotgun shells contain a pound of powder. A competion can easily involve 100 people, each shooting 200 times in a day, for two days over a weekend. Enthusiasts compete every weekend. Gasoline is more hazardous than gunpowder.

Sam W · June 23, 2009 08:22 AM

Here is Rahm Emanuel speaking at a 2007 Brady Campaign forum and here is a copy of a 2001 Eric Holder Washington Post op ed "Keeping Guns Away From Terrorists", both calling for the use of these watch lists to forbid gun sales. Oath violators all....

Anonymous · June 23, 2009 10:10 AM

Oops, sorry about the HTML goof, let's try again:

Here is Rahm Emanuel speaking at a 2007 Brady Campaign forum and here is a copy of a 2001 Eric Holder Washington Post op ed "Keeping Guns Away From Terrorists", both calling for the using these watch lists to prevent gun sales. Oath violators all....

Anonymous · June 23, 2009 10:13 AM

Maybe Mister 50 Pound Terrorist is a reloader or a black powder shooter, Katie. What kinds of "explosives" are we talking about here?

How about we suspend your First Amendment rights, they being an "odd divergence" in view of your demonstrated penchant for shooting off your mouth?

Steve Skubinna · June 23, 2009 12:05 PM

After all Nobel invented dynamite, a stable exposive that was considered a boon to man's development.

Absolutely. There is essentially no freeway, nor bridge support, not waterway, not office building foundation, subway or even ordinary house built on hilly land that is not made possible only by explosives The fact that you are unaware is a testament to the precision of modern engineering.
The issue of that idiot Lautenberg on the other hand is far more dangerous. The man, like most who have made a good living feasting off the ant-hill hatred of fascists for their neighbors, is a perversion that gives no quarter for those who would live free. He belongs in a bedsheet, right along with the mullahs, an intolerant, IMO a ranting self-absorbed psychopath who sees nothing wrong with the America's answer to the Star Chamber.

"Gasoline is more hazardous than gunpowder"

Absolutely. Far higher energy density. They don't call fuel-air bombs (open-vaporized gasoline) "the poor man's nuclear weapon" for nothing. Supposedly the BATF has a standing exemption for gasoline so we idiot civilians can handle it. The energy in a gallon of gasoline is equal to approximately 90 lb of high quality dynamite. We're lucky it generally doesn't get aerosolized prior to ignition.

Brendanav · June 23, 2009 01:21 PM

After all Nobel invented dynamite, a stable exposive that was considered a boon to man's development.

"Gasoline is more hazardous than gunpowder"

Brendanav · June 23, 2009 01:21 PM

Mandela aside, is anyone outside of the CBC and assorted die hard left wingers making an issue of the ANC's inclusion on watch lists? The shoe fits, and they were it proudly when it suits them.

dave · June 23, 2009 01:31 PM

Opps, I wrote "We're lucky it (gasoline) generally doesn't get aerosolized prior to ignition."

I meant in accidental situations, of course. We owe a lot to that ubiquitous fluid, and anyone that thinks it will be replaced soon by windmills is charmingly naive.

Brendanav · June 23, 2009 01:32 PM

What the NYT gets wrong is that the watch list does not prevent one from getting on an airplane or getting a visa or obtaining a gun. It only adds extra scrutiny. If Nelson Mandela of Peoria Illinois (if one exists) were to try and buy a gun, he could get one. He would only have to wait until it was shown he wasn't the ANC guy. Same for getting on a plane.

junaid · June 23, 2009 03:07 PM

Yeah Junaid. That is just swell and reassuring to know that you can get past the red tape. MORE RED TAPE.

Yessiree! Its great that we have a security service that screws up people's lives gratuitously, in bulk, and secretly. My brother-in-law is a totally upstanding, well-healed and charitable guy, a top of the line stand-up all around American. He flies extensively and has to show up at least an hour early EACH time because somebody with his routine "bob smith" vanilla-type name is on that list, and his name BTW is not co-incidentally Sheik Omar Azir Al Wassabi (sorry Al...) ; and yes, he does get on the plane eventually. Yes too, due to the casual abuse inherent in this garbage there are no doubt hundreds of people with the exact same name as my bro', and they and their companions necessarily must spend thousands of hours of time, time wasted by the subjects of this crass duplicity (I have a relatively unusual name, but there are no less than thirty eight people on google that have either the exact same name or within one letter). So I just love the way people casually dismiss the abuses others confront.
But, hey.... the Feds don't want to fix it; that wouldsave time and money and the Feds have that in spades...public jobs are public jobs. Its a crisis though, because somewhere a hamburger isn't being flipped, and TSA has taken all the candidates! Anyway, everyone knows it is The State that creates wealth, not those stupid bastards who fly all over the world in search of business and anyway, who the hell do they think they are? How dare "the little people"
demand to know why they are not taken off in some way?Harrummpf!

Anonymous · June 23, 2009 04:20 PM

Yeah Junaid. That is just swell and reassuring to know that you can get past the red tape. MORE RED TAPE.

Brendanav · June 23, 2009 04:20 PM

>>but I think we can make an exception for the person who purchases 50 pounds of explosives

I think your "provincialism" is showing. 50 pounds of explosives MAY be excessive in New York City, but was barely adaquate for the work we did on the irrigation ditch in Darby Montana when I was a teenager.

As is usual the anti-second amendment scred fails to give any context.

Bob Durtschi · June 23, 2009 04:32 PM

In full agreement. Would like to express a weakness in your presentation made here: "that there is no constitutional right to fly on a plane."
How would you square this with the Ninth Amd.?
The logical end of this statement is that government could ban travel by plane, period.
I could put a finer point to it by delineating the rights of a private carrier vs a right to fly and the power of government to deny an individual a right to contract with a private carrier to travel by air.
But I think you can deduce the weakness without all that.

Mike Mahoney · June 23, 2009 06:08 PM

Agree with Mike Mahoney - there is a constitutional right to fly, as there is to travel in any mode available. The constitution simply enumerates the rights the government itself is permitted. By default we have a constitutional right to do anything we dman well please (and conversely, by default the government doesn't have any rights at all).

SumDumGuy · June 24, 2009 01:32 AM

Government makes list to make your rights disappear, soon everybody is on the list.

bill-tb · June 24, 2009 09:12 AM

"there is no constitutional right to fly on a plane."

I agree with Bob D. Travel by any means common and necessary to carry on commerce and the enumerated rights is no less a right. Travel by car, bus, or plane is just as necessary to the right to assemble, petition, & etc. as is having ammunition is to the right to keep and bear arms. Just as restricting ammunition infringes upon the second amendment, restricting one's right to travel on a plane (or any other means) infringes upon one's right to assemble, petition, & etc.

Flanking attacks upon one's rights are no less dangerous, and should be no more tolerated, than are frontal attacks.

Wayne Conrad · June 24, 2009 11:12 AM

Katie: I am a re-enactor ... fur-trade era.

In order to get sufficient quantities of the kinds of black powder we use for shooting, I have to order 25 Lb. lots over the internet ... local retailers won't carry black powder because of BATF reporting requirements, and the wholesaler I order from won't take orders under 25 lbs.

As long as I keep inventory under 50 lbs, I do not have to keep BATF records or have an approved storage bunker.

Kristopher · June 24, 2009 01:28 PM

Lautenberg was mre-elected in what was a an illegal substitution made after the deadline proscribed in law ruled legal by the very liberal state courts in NJ.
The Democratic candiadate had a serious "problem" and had to withdraw, see http://www.foxnews.com/story/0,2933,64570,00.html
Lautenberg though matched the profile the Dem Leaders wanted and since Torecelli had to withdraw they did not want the republicans to win by default.

He was useless and still is useless for the people he does what he is told to do. Chances of getting anyone better or even differnt is slim to none in NJ.

Rich · June 25, 2009 10:25 AM

Killzone 2 - the best PS3 game yet?Still LittleBigPlanet for me, but Sony's new shooter is mightily impressive.
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gameskillz · June 25, 2009 03:57 PM