Democrats’ War on Due Process and Terrorist Fearmongering Long Predate Orlando

If you want to bar someone from buying a gun, go to court and present evidence that the accused is bad.

Before the bodies were removed from the Pulse nightclub in Orlando last week, Democrats began eagerly exploiting that atrocity to demand a new, secret “terrorist watchlist”: something that was once the domestic centerpiece of the Bush/Cheney war-on-terror mentality. Led by their propaganda outlet, Center for American Progress (CAP), Democrats now want to empower the Justice Department — without any judicial adjudication — to unilaterally bar citizens who have not been charged with (let alone convicted of) any crime from purchasing guns.

Worse than the measure itself is the rancid rhetoric they are using. To justify this new list, Democrats, in unison, are actually arguing that the U.S. government must constrain people whom they are now calling “potential terrorists.” Just spend a moment pondering how creepy and Orwellian that phrase is in the context of government designations.

What is a “potential terrorist”? Isn’t everyone that? And who wants the U.S. government empowered to unilaterally restrict what citizens can do based on predictions or guesses about what they might become or do in the future? Does anyone have any doubt that this will fall disproportionately on certain groups and types of people?

The Democrats’ most extreme attack on due process comes, unsurprisingly, from that party’s supremely authoritarian Terror Warrior, Sen. Dianne Feinstein, whose bill would “give the attorney general the discretion to block a sale to a given individual suspected of involvement of some kind in terrorism.” In their effort to exploit Orlando and other recent mass shootings, Feinstein and the Democrats encountered a serious problem: Neither Omar Mateen, nor the racist Charleston killer Dylann Roof, nor numerous other mass shooters, were on any terrorist watchlist (Mateen was investigated by the FBI, which — rightly — closed its file on him in 2014 after it found no evidence of wrongdoing). So Feinstein wrote a special provision in her bill to obviate this objection, one empowering the attorney general to put anyone on the banned list “who has been investigated in the last five years for ‘conduct related to a Federal crime of terrorism’” — even if they were ultimately found to have done nothing wrong.

After Feinstein’s bill was rejected last night on a largely party-line vote by the Senate, the Democrats unleashed a fearmongering messaging campaign so exploitative and deceitful that it would have made Karl Rove blush with embarrassment, or at least seethe with envy.

So now, in the lexicon of the leading liberal lights of the Democratic Party, someone deemed by the U.S. government to be suspicious — placed in secret on a list, with no evidence presented and no court process — is the equivalent of “ISIS.” And to demand due process be accorded — says this Harvard Law Professor — is to arm ISIS.

To see how deep down the authoritarian hole Democrats reside, consider this 1987 New York Times editorial raging against Reagan Attorney General Ed Meese for arguing that criminal suspects don’t deserve Miranda warnings. Meese’s rationale: “You don’t have many suspects who are innocent of crime. That’s contradictory. If a person is innocent of a crime, then he is not a suspect.” Said the NYT editors in response: “In other words, guilty until proven guilty.” That’s exactly what Elizabeth Warren and Chris Murphy believe: If the U.S. government views you as suspicious, that is proof of your guilt. Thus, a “suspect” is the same as “ISIS.”

Even worse was the messaging that came from an operative with CAP, who has become a little Twitter star among the Democratic faithful for his endless Cheneyite exploitation of terrorism fears to attack Republicans and justify gun watchlists. This is how he described Feinstein’s bill:

It’s hard to put into words how appalling that is. This CAP official is not only outright lying about Feinstein’s bill: pretending that it bars “terrorists” — rather than people placed on a suspicion watchlist — from buying guns. Worse than rank dishonesty, he is literally, explicitly equating people who will be deemed suspicious by the U.S. government — overwhelmingly Muslim, needless to say — with “terrorists.” As Sam Adler-Bell put it about this tweet, “Referring to all people on the DOJ’s watchlist as ‘terrorists’ is legally incorrect and ethically ugly.” In Volsky’s mind, or at least in his propaganda, anyone deemed by the government to be suspicious is now a “terrorist” — no evidence needed, no trial held, no due process accorded.

For eight years, this mentality was the driving force behind the worst Bush/Cheney war-on-terror abuses. No matter what the extremist policy was — indefinite detention, warrantless eavesdropping, torture, no-fly lists, Guantánamo, rendition, CIA black sites — Republicans would justify it by saying it was merely being done to “terrorists” and would accuse their due process-advocating critics of wanting to “protect terrorists.” What they actually meant was that all of this was being done to people accused by the U.S. government of involvement in terrorism. But in their mind, “government accusations of terrorism” were synonymous with “proof of guilt.”

That is exactly the warped, Orwellian formulation Democrats embrace: As is extremely obvious, the Democrats’ definition of “terrorist” is “anyone whom the U.S. government suspects of being a terrorist.” Just as was true of all those GOP abuses, what makes these Democratic proposals so dangerous is that they constitute a war on the most basic right of due process. As Vox’s Dara Lind explained, “If you give the government more power to ban terrorists from having guns, you’re reinforcing the power it has to define who counts as a terrorist.” That’s why the ACLU yesterday wrote to the Senate and denounced Feinstein’s bill:

It’s tempting for some Democratic faithful to believe that their party leaders do not really believe in this blatant attack on due process, but instead are just doing this as a political tactic, a form of trolling to place Republicans in an uncomfortable position on gun control. Though believing that might make Democrats feel better, it is pure fantasy, utterly unsustainable by looking at the naked reality of the Democratic Party.

That theory might have some viability if Democrats had spent the last eight years fighting against the Bush/Cheney no-fly list and other forms of due process-free “terrorism” punishments. But the opposite is true: They have aggressively defended and expanded those policies. As The Intercept’s Jeremy Scahill and Ryan Devereaux reported in 2014 after they obtained (and published) the U.S. government’s 166-page secret watchlist guidelines, “The Obama administration has quietly approved a substantial expansion of the terrorist watchlist system” — ushering in massive increases in both the number of people on those lists and the ease of placing them on it.

It’s not just that there are huge numbers of people on the watchlist who have done nothing wrong. It’s much worse than that: People who are acquitted of the charges against them can and do remain on the watchlist if the FBI wants them to. As an ACLU report this year documented:

So it’s not that the Democrats have tried but were thwarted by the Big, Bad Republicans to get rid of secret watchlists, and are now using that against the GOP as some sort of genius rhetorical move. Just like George Bush and Dick Cheney did, Democrats love secret, due process-free terror watchlists. They have aggressively expanded their usage — overwhelmingly against American Muslims — and are now seeking to create a whole new list for an entirely different purpose. They’re doing this because they believe in it, and because they do not believe in due process.

But none of this should be surprising. This is who the Democratic Party is. They have proven over and over that they believe that the definition of “terrorist” is “someone whom the U.S. government suggests, in secret, might be a terrorist.”

Thus they have cheered all sorts of attacks on due process in the name of fearmongering over terrorism. Obama presided over a significant increase in mass surveillance. He has gone around the world, in at least seven predominantly Muslim countries, killing people with bombs and missiles shot by drones, then justifying it on the ground that the people he wanted to kill were terrorists. Democrats even stood and cheered as the Obama administration asserted (and exercised) the right to target U.S. citizens for execution via drone, based on nothing more than suspicion and government accusations; they even went to court to deny a father the right to have his American son have his day in court before being killed by the U.S. government.

[It should go without saying that Republicans here are no better. They watched approvingly for years as Bush and Cheney implemented this due process-free system of watchlists and secret punishments for terror suspects because it was predominantly affecting Muslims, and only began caring this year when their system (predictably) expanded, now to include gun rights. As I discussed last night with the ACLU’s Hina Shamsi:

Indeed, this is the 2003 document that created these secret, due process-free watchlists that Democrats have embraced and are now seeking to expand:

Moreover, for years, fearmongering about terrorism and accusing due process-advocating liberals of loving al Qaeda were staples of the GOP’s rhetoric. And GOP leaders still have not lost their touch when it comes to exploiting terror fears; just this week, Mitch McConnell plans to introduce a bill to expand secret, warrantless domestic surveillance by invoking Orlando.]

The Fifth Amendment’s guarantee of “due process” is really not that complicated: It provides that “no person shall be … deprived of life, liberty, or property, without due process of law.” This is not some ancillary luxury; it’s one of the few genuine safeguards against tyranny. If you want to ban someone from buying a gun because you believe they’re a Terrorist or otherwise a Bad Person, then go create a procedure where the government must go to an actual court, present evidence, the accused can respond, and then a judicial ruling is issued. What kind of a person opposes that?

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