The Senate keeps trying to find ways to prevent suspected terrorists from buying guns. A proposal that would give the government veto power over gun purchases by a wide array of suspects failed, but a bipartisan group of senators led by Sen. Susan Collins (R-ME) is ready with a compromise: making it illegal for anyone on the federal "no-fly list" or "selectee list" (which targets people for extended inspections at airports) to legally purchase a gun.
Democrats, including President Obama, have endorsed "no fly, no buy." But while the proposal is being presented as a compromise by Collins and company, it doesn't exactly address skeptical Republicans' core concern: that the list will be used to target law-abiding gun owners.
The Collins bill allows for an appeals process through the courts, but it's not clear how long that process would take — or if it would allow Americans to challenge their inclusion on the watch lists to begin with, or simply their inability to buy guns.
It's hard to know how seriously to take Republicans' concerns that using the no-fly list to restrict gun purchases will prevent numerous law-abiding Americans from owning guns. That's because we still don't know a ton about the no-fly list as it exists today — and what we do know has been revealed over the strenuous objections of the federal government.
The information that has come out over the decade or so that the no-fly list has been in effect has been enough to show that the government hasn't always been sure whether the no-fly list is an all-purpose list of terrorists or just a list of terrorists who pose a particular threat if they're allowed to get on a plane.
The more narrowly tailored the no-fly list is to plane-based threats, the less likely it is to be effective at catching people who want to use guns to commit terrorist attacks. On the other hand, changing the no-fly list to a no-gun list gives the government a powerful incentive to broaden the scope of the no-fly list itself. And in that case, the civil liberties concerns Republicans suddenly care about — and that groups like the ACLU have cared about for a long time — would come to the fore.
What is the no-fly list?
The no-fly list is one part of the government's watch list system, for tracking "known or suspected terrorists" and trying to prevent them from carrying out terrorist attacks in the US. The broader database of known or suspected terrorists compiled by the federal government tracks about 700,000 people; compared with that, the no-fly list is fairly small, with only 47,000 people.
Before 9/11, there was an extremely limited "no transport" list that only had a few dozen people on it. But the 9/11 attacks, in which the attackers used large passenger jets as weapons (and therefore were able to kill hundreds of people even when they didn't reach their crash targets, as with Flight 93), convinced politicians that keeping terrorists from getting on civil airplanes should be a high priority. The first set of no-fly list criteria was developed in 2004, but both the standards for the no-fly list and for the government's broader "watch listing" program have been overhauled multiple times since then.
As the graphic above shows, the no-fly list is one of several lists developed by various government agencies for various specific functions. The Collins proposal would refuse guns to people on the no-fly list, or on the list of people who get enhanced screening at airports (that's the "selectee" list, also operated by the TSA). But it wouldn't cover people on the rest of the government's watch lists: the list of people who get extra screening when entering the US (that's operated by Customs and Border Protection); the list of people who are prevented from getting visas to come to the US to begin with; or people who are just part of the Terrorist Screening Database "master watch list."
At the same time, though, government officials occasionally get concerned that the no-fly list doesn't include some people who are believed to be planning terrorist attacks — even though those attacks might not have anything to do with taking a flight. In other words, the "if someone can't get on a plane, why do we let him buy a gun?" logic has been used before — but in reverse: If someone is suspected of being a terrorist, why do we let him on a plane?
How does someone get put on the no-fly list?
Technically, the criteria for government watch list programs aren't classified. The federal government has fought strenuously to keep them from being released to the public anyway — on the logic that it would basically be giving the terrorists a guide to how to stay off the list. But in 2014, the Intercept got a leaked copy of the government's March 2013 guidelines for watch lists — including the no-fly list.
The 2013 document said that someone should be put on the no-fly list only if he posed a threat to commit:
- An act of terrorism involving aircraft
- An act of terrorism targeting the homeland
- An act of terrorism against the US government abroad
- Another act of violent terrorism that he was operationally capable of committing
You might notice a difference between the first two — terrorist plots that are more likely to get carried out if the terrorist is allowed to board a domestic flight — and the second two, which don't technically have anything to do with getting on a US airplane. The second two were added later, after the government (according to the March 2013 document) belatedly realized that some "known or suspected terrorists" could still get on planes as long as they weren't planning to target the plane or the US. In other words, the list has been changed somewhat from a list of "people who pose a national security threat if we let them on this airplane" to "people who pose a terrorist threat, and therefore obviously we shouldn't let them on this airplane."
It's the second criterion, however — a threat to commit a terrorist act within the homeland — that might be most useful for the government in restricting gun purchases. It's not clear how much the government has been focusing on adding domestic terrorists to the no-fly list — after all, if they aren't planning to attack planes, it's much easier not to. But if that were what it took to prevent domestic terrorists from owning guns, the government would have a powerful incentive to devote intelligence resources to finding domestic terrorists to list.
But it might not have to look that hard to find suitable candidates. While the criteria for what sorts of "threats" get placed on the no-fly list is specific, the evidence that can be used to put someone on the no-fly list — or any government watch list — is pretty thin. The government is trying to predict whether people who have never committed any acts of terrorism before will commit one now, and that involves a lot of what the government calls "predictive judgments" and its critics call guesswork.
To determine whether someone is a threat to commit an act of terrorism, the government doesn't have to have hard evidence — just "reasonable suspicion." (Facebook and Twitter posts count.) Those subjective standards have been associated with racial profiling in domestic policing and counterterrorism alike, and there's evidence that this is happening in the government watch lists as well. The most common US city for "known or suspected terrorists" is New York City, but the second most common is Dearborn, Michigan — which isn't a large town but does have one of America's largest Muslim populations. One of the people who have sued the American Civil Liberties Union over inclusion in the no-fly list was told that he was on the list for having (in the ACLU's words) "traveled to a particular country in a particular year" — something that could be an indication of terrorist training, or simply of going to meet family.
There's also a way for the government to add whole categories of people (like anyone who "traveled to a particular country in a particular year) to the no-fly list temporarily — if it has specific reasons for doing so. The "upgrade" (as it's called) can last for 72 hours without official review, and can get extended indefinitely every 30 days if "senior officials" agree it's necessary.
The temporary "upgrade" could be an implementation nightmare in and of itself for making the no-fly list a no-gun list. Would people who'd temporarily been put on the no-fly list be told they couldn't buy a gun, period? Would they be told to come back after the upgrade had been lifted? Would the government put in place a way for an individual person to exempt himself from the group terror "upgrade?"
If the no-fly list stays focused on preventing threats to aircraft, that might not matter — there simply aren't enough people on the list who might want to buy guns anyway. But if the list changes in response to becoming a no-gun list, it matters a great deal.
How many people are on the no-fly list?
The struggle in maintaining the no-fly list has been to make it comprehensive enough that it actually prevents all possible attacks, without making it so broad to inspire public outrage. Those political pressures have a lot of influence on the size of the list itself — when the government tips far enough to one side to be publicly criticized, it starts expanding or reducing the list accordingly.
In the early years of the no-fly list, it attracted a fair bit of public skepticism for being too broad — or simply for making mistakes. Sen. Ted Kennedy (D-MA) was blocked from getting on flights several times in 2004 because of the no-fly list; it eventually came out that he wasn't actually on the list at all but had a similar name to the alias of someone who was. But the government didn't face serious pushback from the public until people found out how many people were on the no-fly list. That happened in 2006, thanks to a leak to CBS News of the entire list of 44,000 people. That was more than most people expected, and the criteria clearly left something to be desired (the then-presidents of both Bolivia and Lebanon were considered suspected terrorists). So the government started paring it back through the end of President Obama's first year.
Then in December 2009, Umar Farouk Abdulmutallab tried to blow up a plane using plastic explosives he'd hidden in his underwear. The fact that he was able to get on a flight was treated as a massive failure of the no-fly list. So it started to expand again. In 2012, the Associated Press got leaked documents showing that the no-fly list had doubled in size over the previous year; the leaks provided to the Intercept last year showed that as of 2013, there were 47,000 people on the no-fly list — more than there had ever been under President Bush.
However, this doesn't mean there are 47,000 Americans on the no-fly list. As of 2013, only 800 people on the list were US citizens or permanent residents. The documents obtained by the Intercept didn't say anything about how many other people living in the United States (on temporary visas, or unauthorized immigrants) were on the no-fly list or other watch lists, but the fact that less than 2 percent of no-fly list members are citizens or permanent residents indicates that the list's focus, so far, has been on preventing foreign terrorists from traveling to or in the US. Since that's a totally different function from using it as a list of people too dangerous to buy guns, it's reasonable to wonder whether the current list would be effective as a gun-ban database — or whether the government would start aggressively adding "domestic terrorists" to the list to prevent them from buying guns rather than flying.
How often do innocent people get put on the no-fly list?
This is the problem that Republicans are concerned about: Law-abiding Americans, who would otherwise be able to get a gun with ease, will be turned away because the federal government made a mistake.
It certainly happens already at airports. But complicating the situation is the fact that just getting turned away at an airport doesn't mean you're on the no-fly list at all — which raises the question of how reliably clerks at gun stores will be able to tell whether or not the person applying for a gun is the terrorist they're looking for.
Apparently, "Ted Kennedy" errors — someone who isn't on the no-fly list is accidentally misidentified as someone who is — happen relatively frequently. The federal government says that "Ninety-nine percent of individuals who apply for redress" — i.e., who formally ask the government why they were blocked from traveling and if that can be fixed — "are not on the terrorist watchlist, but are misidentified as people who are." The government doesn't guarantee that the issue will get resolved quickly, but it has a way for it to be resolved eventually.
For people who are on the no-fly list, though, it's much harder to find anything out from the government. When the ACLU sued on behalf of 10 people who believed they were on the no-fly list and demanded to be told why — some of whom were actually stuck outside the US — the government attempted to argue that whether or not they were actually on the list counted as a "state secret." As the ACLU lawsuit has progressed, though, the government has been forced to improve transparency a bit. The government only started instituting a policy of confirming that someone who asked for redress was on the no-fly list in April 2015. And it still doesn't have to include any information about why someone is on the no-fly list. Nor does anyone on the no-fly list get a chance to appear at a hearing to challenge the government's determination — something the ACLU considers a constitutional deprivation of the right to due process.
So the "redress" system works great for people who aren't actually on the no-fly list, but not as well for people who are. In 2014, as part of the ACLU's lawsuit, the Ninth Circuit Court of Appeals struck down the whole redress process and told the government it needed to come up with something else. That hasn't happened yet.
At the moment, because there aren't a lot of citizens or permanent residents on the no-fly list, the lack of a process for getting someone off the list isn't a logistical problem (just a legal one). But whether that remains the case depends on whether the composition of the no-fly list changes in response to the new ways it's used. If the federal government uses the no-fly list as a no-gun list, it's likely to put more effort into including domestic terrorists; if it puts more effort into domestic terrorists, it's likely to include more Americans; if it includes more Americans, it's more likely to face legal challenges from people who argue they shouldn't be considered threats.
Does the no-fly list work? Would it work as a no-gun list?
Since the list's Obama-era expansion, after the 2009 "underwear bomber" incident, sure, the no-fly list has worked — if by "worked," you mean "there haven't been any other terrorist attacks on commercial flights in the US." But the underwear bomber is a big asterisk. And it's impossible to tell whether the fact that there haven't been attacks on commercial flights in the past six years is an indication that the 47,000-person no-fly list is working better than the 4,000-person one the TSA used in 2009, or whether terrorists simply haven't been targeting airplanes lately.
If the no-fly list is working for its intended purpose, that still doesn't mean it's a generally useful list of terrorists. In other words, it wouldn't necessarily work as a list of people who should be prohibited from buying guns.
Since the facts of the San Bernardino attack are still being investigated, we don't know for sure whether Syed Farook and Tashfeen Malik were on the no-fly list — or whether they would have met government criteria for the watch list but simply weren't nominated. But nothing we know so far indicates that Farook and Malik would have necessarily qualified. The 2013 guidebook specifically says that while someone attempting to get an IED is considered "operationally capable" of carrying out an attack, someone simply looking up things about IEDs on the internet is not. If Farook and Malik planned their attack themselves, offline, the federal government might not have had any way of catching them.
But the real question of whether the no-fly list would work as a no-gun list is much bigger: It's about how the new function would change the no-fly list itself. It's easy to inflate this into right-wing paranoia — the notion that the government would suddenly start putting white Republican men on the no-fly list for no good reason other than simply to prevent them from buying guns. But the history of the no-fly list shows that it's shaped at least as much by political pressures — whether that pressure results from too many people being on the no-fly list or too few — as it is by intelligence needs. So it's worth wondering how those political pressures might work if the no-fly list suddenly becomes the government's most powerful tool for preventing someone from owning a gun.