The No Fly List Isn’t Just Broken, It’s Insane. You Must Read This Before You Talk About Gun Control.

I’m not an expert on guns. I don’t even own one. For this post I do not want to get into the question of which sorts of regulations of guns are reasonable or constitutional.

I do see a lot of very weak arguments being used in current debates. I’ll focus just on the very concerning one that the No Fly List ought to be used to deny substantive rights beyond flying. It’s a shoddy list as it is and raises significant concerns in the travel context. The last thing we should do is expand its use.

President Obama has been pushing this idea:

Right now, people on the No-Fly list can walk into a store and buy a gun. That is insane. If you’re too dangerous to board a plane, you’re too dangerous, by definition, to buy a gun

Fundamentally the list is pre-crime profiling. Not even based on science. And it’s also done very very poorly. People get on the list by mistake, because they’re related to someone who is on it, or because they visited the wrong country in the wrong year. .

It’s a secret list that people haven’t been entitled to know they are on, how they got on, or to confront the evidence relied upon to put them on it. Legally there is very little recourse, and when challenged the government claims ‘state secrets.’

What we actually need are robust due process protections for the No Fly List. People wind up on the list arbitrarily, by mistake, and without significant evidence.

The list is an absolute affront to the right to travel, an example of government run amok during the George W. Bush administration. This isn’t a partisan point – the list was begun under a Republican administration, its use is proposed for expansion under a Democrat administration, but it’s terribly broken and antithetical to American liberty. It’s both frightening and surreal to see it used to deny rights beyond even travel.

  • Formal responsibility for the list rests with the TSA and under 49 U.S.C. § 46110 inclusion is only reviewable by circuit courts in which judges are required to defer to the TSA’s judgment about all alleged facts and are permitted only to review the administrative record created by and provided to them by the TSA itself.

  • Until this year the TSA wouldn’t even tell people whether they were on the list (making it difficult to sue to get off the list when you can’t prove you’re on it). The TSA does not tell people why they are on the list.

  • Decisions to put someone on the no fly list are based on predictive pre-crime profiling rather than actual evidence about the individual’s actions or intentions. This is a huge leap in our justice system.

Whatever regulations of guns are put in place, they should be implemented on the basis of understanding what in the world we’re talking about. The No Fly List is about declaring people guilty without proving them so, or affording a mechanism to confront the evidence against them and clear their name.

Remember that the San Bernadino shooters weren’t on the No Fly List (here’s a photo of them entering the US last year, hat tip Greg R.).

After events like this we want the government to do something. And (whether you believe for good reason or not) gun rights are currently less popular than some other rights. Other rights fall out of favor at other times. Same sex marriage was unpopular until very recently. Speech has been unpopular at times. Using unreviewable, secret and often arbitrary pre-crime profiling as a basis for denying any kind of right is a huge departure for our system of justice and should be well understood before it’s undertaken.

Being on the no fly or terror watch list shouldn’t be used to forbid working in a mosque. It shouldn’t be used to limit one’s right to a jury trial. Finding oneself on the No Fly List ought not let the government quarter soldiers in your home. Or to take away any other right.

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community InsideFlyer.com, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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Comments

  1. I agree that the no-fly list should be reformed and made subject to some kind of reasonable due process. Nevertheless it strikes me as insane that someone is too dangerous to let fly to Chicago after passing through security but it’s A-OK to sell them a gun. So I think the way the list is generated and maintained is a separate issue than whether people on the list should be able to buy guns.

  2. Consider the POS who is trying to make this happen, hasn’t been a truthful word out of his mouth in many years. He isn’t part of the problem, he IS the problem. Absolutely nothing he says or wants done is anything but, what a sane person would want. The king needs to STOP!!!! or be stopped!!!!!

  3. Well, don’t forget you can be placed on the “no-fly list” because an airline employee decides to make your life miserable and for whatever reason decide you are a threat to the flight and ask you to be removed from the plane. We have several examples of cases where they abused of this stupid authority that was given to them to decide if they will make your life miserable or not.

  4. Good logical points Gary.

    However, completely irrelevant.

    If there were huge swaths of abusive mis-listings on No-Fly, it would have already been fixed. There are clearly some amount of errors, but society has deemed those acceptable collateral damage and moved on. Humans are not rational, and never will be.

  5. Obama couldn’t even figure out this was a terror attack. Last night he says yea it was a terror attack, but more importantly muslims are our friends and guns are bad. What an IDIOT this president is. His remark about the no fly list is just one of many stupid things he has said….

  6. +1 to Gary. This is insanity.

    > BO: “What could possibly be the argument for allowing a terrorist suspect to buy a semiautomatic weapon?”

    Here’s a hint, the word “suspect.” Here’s another, due process.

    Think link from Boston Public Radio is worth reading, and a little relevant to how much we should trust DHS and TSA:
    http://wgbhnews.org/post/congressman-lynch-72-department-homeland-security-employees-terrorist-watchlist

    Congressman Lynch (D) said that 72 people at DHS were found to be on the terrorist watch list. TSA also failed 95% of recent screening tests, “We had staffers go into eight different airports to test the department of homeland security screening process at major airports. They had a 95 percent failure rate. We had folks—this was a testing exercise, so we had folks going in there with guns on their ankles, and other weapons on their persons, and there was a 95 percent failure rate.”

  7. @dbeach – this isn’t about who can buy a gun, it’s about what system of pre-crime predictive system is used to put people on a travel ban. The government is very bad at it. And it’s ripe for abuse. Waving your hands at “well, we should fix that” when the government has been well aware of these problems since the beginning and hasn’t fixed them (indeed, they’re fundamental) misses the point.

    Argue for the strictest gun control measures you wish, just don’t think you’re doing much by taking the 20,000+ people on the No Fly List and saying they can’t have guns. IT ISN’T A LIST OF DANGEROUS PEOPLE. It’s a list of people added to the list, some intentionally some by mistake and maybe even some who could be dangerous (and many dangerous people arent’ on the list. You might as well say that political opponents of whatever group is in power at the time can’t, rather than terrorists. Because there’s basically no science behind the list.

  8. @rallydave said: “… hasn’t been a truthful word out of his mouth in many years.”

    I supposed that that includes when he says he was born in Hawaii, right?

    @Gary — Starting this thread was the surest way to bring out the loonies…

    The No Fly List, the Selectee List and the Terrorist Watchlist were created by the administration of George W. Bush and retained by the administration of Barack Obama. Therefore, there is “blame” to go around. However, @dbeach got this one exactly right. Obama’s mistake was to retain the list. However, once the decision was made to retain the list, his proposal to ban anyone on it from purchasing guns makes perfect sense: why would we allow anyone we would not let board a plane because s/he’s deemed dangerous purchase a gun?

  9. All valid points..but most importantly it is a ‘no-fly’ list, not a ‘can’t buy guns’ list, do we really want the Transportation Security Administration dictating gun sales? How does that even make sense? We already have government agencies for that (their effectiveness is another matter).

  10. @Tim — It makes perfect sense because it is a no-brainer. If a person is deemed too dangerous to be allowed on an airplane, that person must also be considered to be too dangerous to be allowed to purchase a gun. Simple syllogism which has nothing to do with whether or not the No Fly list is even constitutional…

  11. @DCS: Wow. You would simply deny rights to someone based on a bureaucrat’s whim. That is scary.

  12. @Darth Chocolate,

    What is “stop & frisk”? What is “civil asset forfeiture”?

    Americans have shrugged their shoulders at these sorts of notions for many decades. And if you want to assemble a rabble to storm the castle, you’d need a better choice than this one to hang your hat on. Ask the man on the street if they want people on the Do Not Fly list having guns, and I know what answer you’ll get. And the moment you start trying to explain it and change their minds, they get that glazed look. You may think you can argue your way out of this reality, but you can’t. And I’m not justifying it, I’m pointing out what IS.

    You’re on a soapbox, preaching to a choir.

  13. @Darth Chocolate — Nowhere did I advocate denyng anyone anything. I just tried to explain what should be obvious but folks like you seem to miss.

    So, please now go back and read my posts again…

  14. The New York Times Editorial Board

    “End the Gun Epidemic in America
    ​It is a moral outrage and national disgrace that civilians can legally purchase weapons designed to kill people with brutal speed and efficiency.

    All decent people feel sorrow and righteous fury about the latest slaughter of innocents, in California. Law enforcement and intelligence agencies are searching for motivations, including the vital question of how the murderers might have been connected to international terrorism. That is right and proper.

    But motives do not matter to the dead in California, nor did they in Colorado, Oregon, South Carolina, Virginia, Connecticut and far too many other places. The attention and anger of Americans should also be directed at the elected leaders whose job is to keep us safe but who place a higher premium on the money and political power of an industry dedicated to profiting from the unfettered spread of ever more powerful firearms.

    It is a moral outrage and a national disgrace that civilians can legally purchase weapons designed specifically to kill people with brutal speed and efficiency. These are weapons of war, barely modified and deliberately marketed as tools of macho vigilantism and even insurrection. America’s elected leaders offer prayers for gun victims and then, callously and without fear of consequence, reject the most basic restrictions on weapons of mass killing, as they did on Thursday. They distract us with arguments about the word terrorism. Let’s be clear: These spree killings are all, in their own ways, acts of terrorism.

    Opponents of gun control are saying, as they do after every killing, that no law can unfailingly forestall a specific criminal. That is true. They are talking, many with sincerity, about the constitutional challenges to effective gun regulation. Those challenges exist. They point out that determined killers obtained weapons illegally in places like France, England and Norway that have strict gun laws. Yes, they did.

    But at least those countries are trying. The United States is not. Worse, politicians abet would-be killers by creating gun markets for them, and voters allow those politicians to keep their jobs. It is past time to stop talking about halting the spread of firearms, and instead to reduce their number drastically — eliminating some large categories of weapons and ammunition.

    It is not necessary to debate the peculiar wording of the Second Amendment. No right is unlimited and immune from reasonable regulation.

    Certain kinds of weapons, like the slightly modified combat rifles used in California, and certain kinds of ammunition, must be outlawed for civilian ownership. It is possible to define those guns in a clear and effective way and, yes, it would require Americans who own those kinds of weapons to give them up for the good of their fellow citizens.

    What better time than during a presidential election to show, at long last, that our nation has retained its sense of decency?”

  15. @Stuart Falk – here’s the New York Times editorial board last year:
    http://www.nytimes.com/2014/04/19/opinion/terror-watch-lists-run-amok.html?_r=0&referer=

    “How can Dr. Ibrahim be a terrorist and not be a threat at the same time? Welcome to the shadowy, self-contradictory world of American terror watch lists, which operate under a veil of secrecy so thick that it is virtually impossible to pierce it when mistakes are made. A 2007 audit found that more than half of the 71,000 names then on the no-fly list were wrongly included.

    In a recently unredacted portion of his January ruling, Judge Alsup noted that in 2009 the government added Dr. Ibrahim back to its central terrorist-screening database under a “secret exception” to its own standard of proof. This would be laughable if it weren’t such a violation of basic rights. A democratic society premised on due process and open courts cannot tolerate such behavior.”

  16. @Vicente: I suggest that you start to follow Professor Volokh as he is a leading advocate against civil asset forfeiture, spurious 4th amendment violations, and abuses of due process.

    As for the man on the street, by and large they are idiots who will agree to anything that sounds reasonable, without thinking through the consequences. I remember a bit by Jimmy Kimmel (Man Show) where he and Adam Corolla set up a booth advocating an end to Women’s Suffrage. You would not believe how many supposedly educated women were ready, willing, and eager to sign the petition. Because it sounded like “suffering”.

    @DCS: Why, yes. Yes you did. You want to deny people the right to purchase guns if their name appears on the no-fly list. The list is run by unelected bureaucrats, who can put people on it for any reason or suspicion without committing any crime. So you believe that if “people are too dangerous to fly” in the opinion of some unelected bureaucrat, you would deny them their constitutional rights.

    So when does it end? If a Democrat decides that somebody has the wrong views, they can put a Republican on the list (don’t laugh – this happened with the IRS and the Tea Party). Ha-ha; it makes life miserable for the poor slob who was victimized – good joke. Now, according to you, the person who has not violated any law (only the sensibilities of the people controlling the list) has a constitutional right stripped from him. Very funny. And common sense. How would you like that standard applied to you?

    So when will you sign the petition to end Women’s Suffrage?

  17. I’m not sure how much “thought” goes into an assignment to the “no fly list,” but I, my wife and my daughter were deemed by the government to represent a threat to civil aviation because of our decision to stopover in Istanbul for a couple days before continuing on to southern Africa. We were “SSSS”ed by the TSA, making it necessary to be hand-searched and our baggage taken apart everytime we then boarded a plane. Mercifully, this ended after about 6 weeks.

    Before it ended, I did correspond with Homeland Security, where I didn’t seem to have much due process if I didn’t like their decision. Fortunately, after the haraSSSSment ended, they wrote me a letter saying my screenings were either random or a mistake.

    I’m not a huge fan of folks buying assault weapons but, if it’s a legal right, it sure seems like there better be some darn good due process if the gov’t is going to take that right away from you. Relying on a “mysterious” and seemingly arbitrary “no fly list” doesn’t seem to be the right level of process.

  18. @Gary — The seemingly “dueling” NYT editorials do not at all contradict each other because they address different things, as @dbeach had correctly observed in the very first comment above. The No Fly list makes most people, including folks at liberalism’s last bastion — the NYT — uncomfortable but so too should the political inertia preventing the enactment of tough gun controls in America! One can be both against the No Fly list and for tough gun control. They are not mutually exclusive…

  19. @ Darth Cholocolate: “Why, yes. Yes you did. You want to deny people the right to purchase guns if their name appears on the no-fly list.”

    It is not my fault that you have the level of comprehension of a kindergartner.

    G’day.

  20. Here’s how you get on these lists:
    http://www.huffingtonpost.com/2014/07/25/terrorist-watch-list_n_5617599.html

    A DHS audit several years ago found that over half the people on the lists were there in error.

    Not only weren’t the San Bernadino shooters on the list, can anyone name a single mass shooter ever who was?

    And yet considering all the regulations that would withstand constitutional scrutiny this one isn’t just bound to be ineffective, it’s a fool’s errand. Since the Supreme Court holds that gun ownership is an individual right, there’s no universe in which unreviewable pre-crime lists will be held to be a permissible way to circumscribe those rights.

    Lots of people want to mood affiliate with gun control, and I don’t have a problem with that, but it’s sloppy thinking to invoke the no fly list in that argument.

  21. I gotta tell you – as a non-american (but very pro U.S) – I don’t think you understand just how the rest of the world is mocking your current leadership.
    I’m not saying anything about Dems vs Repubs – each has it’s shortcomings. In fact, i’m quite liberal myself. But the world is watching your administration not even being able to call this a terrorist attack for a few days. Now, yes I agree that this is a big Republican talking point, but it does matter. This reluctance to call something for what it is in the most natural and realistic sense is to be disassociated from reality. That can lead to very dangerous outcomes.
    It’s that same way of thinking that permits for the TSA to hassle an 89 year old woman just as they would a 23 year old middle eastern man.

  22. @Darth Chocolate,

    I disagree with you that the man on the street are complete blithering idiots, who must be failing to even understand the matter before them.

    No Fly didn’t spring out of the ground yesterday. How many demonstrations and rallies have there been against it since 2001? Exactly.

    People WANT security theater. And as long as it’s not overly invasive on their ordinary lives, they don’t care how fundamentally offensive it is to a rigorous mind.

    I was treated this morning, to a coworker quoting Paul Ryan about DUE PROCESS and the No Fly List. Same coworker supports Donald Trump and banning Muslims from entering America. Humans are not rational animals.

    I shrug my shoulders and move on.

    Good day to you.

  23. @DCS: And it’s not my fault if you have the deductive reasoning abilities of a doorstop.

    G’day.

  24. @Vicente:

    Unfortunately for you, your co-worker is not inconsistent. American due process only applies to people on US soil (as much as it may pain you to believe that). By banning **ANYONE** from entering, they are not on US soil, so they have no due process protections.

    Perfectly rational.

  25. Gary, you make some interesting points here and I appreciate the thoughtfulness of the post. Overall, I tend to disagree with you, but you gave me some interesting food for thought.

    At the same time, it’s disappointing (but not surprising) that there are a lot of un-thoughtful comments here. I hope the people that make them felt better afterwards…

  26. ” …we have duties and obligations to American citizens — but we have absolutely none at all with respect to non-American foreigners, and we can act in our own ruthless self-interest any time we feel it’s necessary, or even just advisable.”

    We do not have to apply a religious test. We can simply deny entry to any non-US passport holder from certain areas. As is the right of any country. The US Constitution is not a Death Cult.

  27. Hmmm, it took 7 minutes and 3 posts before the first nutter appeared. That’s more than I thought! Good news for society I guess.

    @DaninMCI: Your forefathers didn’t create the second amendment to counter people like Obama and Stuart Falk. They created it so you could defend yourself if my Queen and I tried to retake the colonies from you pesky rebels. Spoiler alert – the invasion isn’t coming. It’s much easier to wait for you to finish shooting each other and then share the land with all those “murderers and rapists” Obama’s letting in from Mexico (*insert heavy sarcasm*).

  28. @Gary sez: ” it’s sloppy thinking to invoke the no fly list in that argument.”

    The sloppy thinking is your continuing to try to convolve the two arguments! For the last time: The No Fly list can be questioned, but it is silly to question the clear logic that follows once such a list has been adopted. Do you get the nuance?

    The Bush administration went overboard in their zeal to ensure that the perpetrators of the 9/11 terrorist attacks were punished and that there won’t ever be another 9/11 on their watch. So, they enacted a whole bunch of questionable laws (wanna try some really cool legal torture?) and statutes that included the No Fly List, the Selectee List and the Terrorist Watchlist — i.e., The Lists. Rather than repealing all such questionable practices, as he did, e.g., those sanctioning torture, Obama decided to retain The Lists, which most people, including those at NYT, believe was a mistake. That much is or should be clear.

    This where things get fuzzy in people’s minds. Once The Lists that designated, rightly or wrongly, some people as too dangerous to be allowed on commercial airplanes were created and adopted, then that made it absolutely silly to argue against preventing anyone on any of The Lists from purchasing a gun, rightly or wrongly. Therefore, if one gets rid of The Lists, the attempt to prevent people on them from buying guns would have any legs to stand on, and, just like that, it’ll vanish because there is no case! Clear enough now?

  29. I don’t understand all the Islamophobia coming in the wake of the Bernadino shooters. I agree with BO on this one. Clearly this was a cry for help from two individuals who didn’t get their fair shake here in the U.S. The deck was stacked against them from the start. They were not terrorists, rather a reflection on the failings of our society. If only we were more embracing of Islam and tightened up our gun laws, these horrific acts of violence simply would not happen.

  30. A couple newspapers printed articles about 72-dhs-employees-on-terrorist-watch-list. So do a Google search and read the articles.

  31. @DCS the No Fly List has been adopted, but it is sloppy. Why would you want to extend it? People are WRONGLY designated. (And real threats aren’t so designated) Why do you have this need to compartmentalize and accept as ‘done’ as therefore as somehow true the no fly list?

  32. @Arcanum the second amendment was an expanded version of a right contained in the 1688 English Bill of Rights, so no it wasn’t in fact concocted to protect against invasion from the UK 😉

  33. @Gary: “the No Fly List has been adopted, but it is sloppy. Why would you want to extend it?”

    That is the argument that the country needs to have because, clearly, there are those (Bush, Cheney, Obama) who believe that the Lists are the way to protect America against terrorist attacks and those who see them as infringing on civil liberties. So, the first thing to do is to get rid of The Lists because once that’s done, the attempt to extend them would become moot since there won’t be any lists to extend 😉

  34. @DCS “that is the arguemnt that the country needs to have” actually it’s probably even only a secondary argument, because more fundamental is the very notion of depriving rights based on pre-crime predictions (leaving aside the poor quality of the predictions for a moment). That’s some scary stuff, and the point of a constitution is to take it outside the realm of citizen argument.

  35. @Gary — All you did was to further support the view that it is an argument that needs to be had. You are understandably outraged by what seems like a clear infringement on civil liberties, but you do not have the responsibility to defend America. Those who do seem to find value in the No Fly list. Therefore, as is customary in a democracy, the viewpoints need to be debated in the court of law and not in the court of public opinion to come up with a legal standing for getting rid of the what you abhor. Better rev up your activists!

    The connection to gun control implied in the title of the post is a convoluted stretch, at best…

  36. Two mistakes: “No-Fly” is hyphenated (see your quote from cnn.com) and not realizing that the Comments would immediately turn into a sewer.

  37. @DCS – I think you went a little far in saying that it “makes perfect sense” and is “a no-brainer.” I also think you spent a whole lot of time explaining things to people who weren’t carefully reading your posts. Sorry about that, I’ll try to do better here:

    I would argue that what qualifies the government to trample on person’s right to travel freely does not necessarily qualify the government to take away a person’s right to bear arms. Besides the fact that this is a nation full of people quite adamant about defending their right to bear arms (but not caring about their right to privacy or travel), there is also a difference in the qualities of the scenarios being compared. A person’s “right to bear arms” generally means they can buy up to a certain class of assault rifle. There’s a certain amount of damage a person can inflict with an assault rifle like that, and we probably saw the limits of that damage in the recent Paris attacks. On the other hand, The Lists were created specifically to prevent people from exacting another 9/11, particularly with planes. If a terrorist made it to the cockpit of another airliner, they probably could cause destruction and death on a similar scale to 9/11. We’re talking about a difference of thousands of lives in potential direct impact. So, it could easily be argued that there should be a different standard for taking away someone’s right to travel vs their right to bear arms.

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