Recently, President Obama addressed the nation about the tragedy – the Terrorist Attack – in San Bernardino.
“This weekend our hearts are with the people of San Bernardino, another American community shattered by unspeakable violence. … It’s another tragic reminder that here in America is way too easy for dangerous people to get their hands on a gun. For example, right now people on the ‘No Fly List’ can walk into a store and buy a gun. That’s insane. If you’re too dangerous to board a plane, you’re too dangerous – by definition – to buy a gun. And so I’m calling on Congress to close this loophole now. …”
No Fly List problems
President Obama calls this a “loophole”, but it begs a few questions:
- What, specifically, makes a person “too dangerous to board a plane”?
- What process is used to add a person to the “No Fly List”?
- What is the process for a person to have their name removed from the “No Fly List”?
- What is the remedy a person has for having their name wrongfully added to the “No Fly List”?
The “loophole” President Obama describes is actually called “Due Process”.
The concept of Due Process goes back a very, very long way. Due process deals with the administration of justice and acts as a safeguard from denial of life, liberty, property, and Rights by a government outside the sanction of law.
In clause 39 of the Magna Carta, issued in 1215, King John of England promised: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” (emphasis added)
The Fifth and Fourteenth Amendments to the United States Constitution each contain a Due Process clause. The Supreme Court of the United States interprets the Clauses as providing four protections:
- procedural due process (in civil and criminal proceedings),
- substantive due process,
- a prohibition against vague laws, and
- as the vehicle for the incorporation of the Bill of Rights.
So, what is the procedural process used to add a person to the “No Fly List”? Are the “qualifying traits” that would land someone on the “No Fly List” too vague to be of lawful use? Does the lack of due process infringe upon an individual’s Rights – especially those ensconced in the Bill of Rights?
Rep. Trey Gowdy (R-SC), on the House Government Reform and Oversight Committee, tried to ask some of those questions of Department of Homeland Security official Kelli Ann Burriesci.
Referring to the “No Fly List”, the question Rep. Gowdy asked was simply:
“What process is currently afforded an American Citizen before they go on that list?”
Ms. Burriesci initially responded:
“I’m sorry, um, there’s not a process afforded the citizen prior to getting on the list. There is a process should someone feel they are unduly placed on the list.”
Let’s stop for a moment and consider what was just said, under oath, and in front of a House Committee. An official with the DHS said “there’s not a processes afforded to (U.S.) citizen prior to getting on the (“No Fly”) List”. She went on to clarify that there is a process a person can follow after their name has been placed on the “No Fly List”, but not before. In short, a Citizen’s Right to Travel has been revoked without Due Process – and now President Obama wants Congress to “close the (
Rep Gowdy pressed for clarification:
“Yes there is. And when I say ‘process’ I’m actually using half of the term ‘due process’, which is a phrase we find in the Constitution, that you cannot deprive People of certain things without ‘due process’. … My question is, can you name another Constitutional Right that we have that is chilled until you find out it’s chilled, and then you have to petition the Government to get it back. Is that true with the First Amendment? … How about we not let ’em set up a website, or a Google account? How about we not let ’em join a church until they can petition to Government to get off the List? How about not get a lawyer – how about the Sixth Amendment – how about you can’t get a lawyer until you petition the Government to get off the List? Or my favorite, how about the Eighth Amendment, we’re going to subject you to cruel and unusual punishment until you petition the government to get off the List? Is there another Constitutional Right that we treat the same way for American citizens that we do the Second Amendment? Can you think of one? (silence) Can you think of one?”
In response, Ms. Burriesci muttered:
“I don’t have an answer for you, sir.”