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, 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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  1. @Gary – Thanks for writing this. It’s a conversation that needs to happen and this is the only forum I’ve seen with such a good grasp of the topic. On top of that, yours is also the most well-informed opinion and one of the best written opinions I’ve seen on the topic. Thank you.

    I wish that we, as a nation, would figure out that we don’t believe in thoughtcrime. That suspicion is not equivalent to guilt. That association is not equivalent to suspicion. That executive branch mistakes leading to the death of US citizen children deserve recourse and need reform in order to be prevented in the future.

    I wish that we, as a nation, were as concerned with our other rights as we are with our right to bear arms.

  2. @Gary — You are using as an argument the very claim that needs to be demonstrated, by which I mean that you have already decided the No Fly list is not a list of dangerous people, but that is not exactly the case either. There have been cases of mistaken identity but of the 47,000 people on the list in 2013, I doubt that all were on it by mistake. A POTUS might decide that trampling the civilities of 10 people may be worth it to stop 1 person who could detonate a bomb that would 10,000. So, this is not as easy as you’d like to make it seem…

    In “MI-5: The Movie”, the spook-in-chief played by Peter Firth made a decision to put the lives of a few MI-5 agents at risk vs. letting a terrorist detonate a bomb in London that would kill thousands. A few MI-5 agents did get killed as a result but the bomb did not go off and all the terrorists ended up dead. The Firth character was then asked how he could make a decision like that that got agents killed (as in what gave him the right?); he simply said “It’s what I do”…and that is exactly what the President of the United States must do constantly, with the most basic utilitarian argument about which unpalatable policy decision would inconvenience the least number of people or save the most lives ending up carrying the day….

  3. @Gary – Don’t forget, POTUS officially believes that killing you via drone should be 100% his discretion, no matter your physical location, age, citizenship status, or other factor. And courts defer.

    We live in sad times. You may feel that gun rights are unpopular right now, but the truth is far from that; they are slightly depressed from their recent extremely high peak. Gun rights are probably the best defended of any right today. No exceptions. I only wish our other rights were as well regarded.

  4. @jamesb2147 — It seems to me that you too failed to get it. Your “explanation” had nothing to do with why it makes perfectly logical sense to bar someone already on the No Fly list from getting a gun if such a list has been created and adopted…

  5. Actually, I’m very happy to see the no-fly list being (proposed to be) used to deny gun sales. Not because I think the list is a Good Thing, but precisely because it is and always has been a horrible pile of crap. As long as the only consequence of its inherent horribleness was that a few of Those People might have their right to travel infringed… well, you can’t make an omelette without breaking eggs, right? And hey – they probably deserved it! (@DCS above makes this argument nicely.)

    But now – oh my GOD! Gun sales might be affected! To the barricades, everybody! And as a result, I strongly suspect that not only will this particular idea go down in flames, but the no-fly list itself may get a new review. If I didn’t know better, I might suspect that this was a brilliant bit of political judo.

  6. Regardless of your position on gun rights, you should absolutely be in favor of people on the No-Fly list being prevented from buying guns. This will focus all of the NRA’s massive lobbying power on finally getting the embarrassment that is the No-Fly list fixed!

  7. @Marc @Jered that’s actually the only argument I could think of in favor of the proposal, and it’s a powerful argument but ultimately one I’m not willing to bet on

  8. @DCS “if such a list has been created and adopted” still misses the point that it needs to actually be a list of dangerous people, which it isn’t, remember that DHS audit that found over half the people on the list were there by mistake..

  9. @Gary — I got that just fine. It is you who miss the point. The list ALREADY exists and it has bipartisan support since it was created under a Republican administration and then got retained by the subsequent Democratic administration. That won’t magically change no matter how often and how much you huff and puff here. Thus, a debate needs to be had to change the statute, as I have now stated ad nauseam.

    You, in fact, seemed to see the light when you just wrote above: “@Marc @Jered that’s actually the only argument I could think of in favor of the proposal, and it’s a powerful argument but ultimately one I’m not willing to bet on.” The argument is powerful, I agree, and the reason is that it is proactive and at least offers a concrete way to force a change in how the list is created or to get rid of it altogether.

    What you need to do is to work on overcoming the political inertia that’s preventing the statute from being changed so that instances of mistaken identity are minimized or the list is abandoned altogether (a tougher sell). Without that the case for preventing anyone on the list from buying a gun is compelling because if they are deemed too dangerous to be allowed on an airplane, they would also be considered — simple syllogism — too dangerous to be allowed to have a gun!

  10. Thanks @Gary for such a thoughtful and informed response. I too took immediate pause when POTUS announced that he wanted people on the no fly list to be prohibited from buying guns. They picked that list for a reason, and the reason is that it’s easy to add someone, they don’t have to explain themselves, and there is (effectively) no legal recourse.
    I don’t think the lobbying power of the NRA stems from gun and ammo sales. The lobbying power of the NRA stems from a very large group of citizens who believe that the 2nd Ammendment was created as a means of defending all of the other amendments, as well as the Constitution.
    From a non-partisan perspective, both parties have been trying to erode our rights with “instruments” such as no fly lists with opaque requirements.

  11. We have already given up so many rights just by the creation of the (absolutely unnecessary and useless) TSA that it frightens me to think of the additional rights that have been taken away from those who are on the no-fly list. It’s all lovely and wonderful to think you should automatically take away the gun purchasing right of those who are on the no-fly list until YOU are the one wrongly put on that list.

  12. Gary, you make a good point. Personally, I would hope and pray for drastic gun control measures (but my opinion is besides the point of this post or comment).

    However, in your comment above, you mentioned “dangerous people”. According to you, is there any way to define and identify a dangerous person (apart from past crimes committed)?

  13. @Kira “I don’t think the lobbying power of the NRA stems from gun and ammo sales”…. And the moon is made of cheese. Practically the rest of the developed world has very stringent gun control and consequently their societies are far far better off.
    American’s don’t realize they live in the most dangerous society in the developed world (also more dangerous than much of the developing). At the height of the IRA bombing campaign, more people were murdered in Detroit in a month than they were in the whole of Northern Ireland in a year.

  14. Those fixating on the sloppiness of the no-fly list are missing a very important point. There are many very dangerous people on that list who are determined to kill as many Americans as they can. Given that fact, it makes no sense to continue to allow those people to purchase military-style assault weapons and thousands of rounds of ammunition. It is incredibly ironic that by refusing to support a ban on gun sales to people on the no-fly list, gun-rights enthusiasts are supporting the right of the murderers to buy and potentially use these weapons on innocent citizens. If the no-fly list is too broad, then come up with another list. But there needs to be a list. .

  15. @ermintrude, “….more people were murdered in Detroit in a month….”
    Right. And if your aunt had ba11s she’d be your uncle.
    If you have a problem with the thugs with guns in Detroit get on over there and take them away.
    In the meantime leave the NRA out of it because that’s not their bag and you know it.
    But you won’t do that because scaredy cats would rather whine.

  16. What’s stopping this administration from placing everybody on the no-fly list, or at least all registered Republican voters? As with most government programs, there is zero accountability and everything is a “state secret” that seems to live forever with impunity. This kind of thing is a very slippery slope. If they can deny or take away one right, what’s preventing them from suspending the rest of your rights?

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