Sunday, July 3, 2016

Time for a reckoning at DOJ

I fervently believe that anyone who is justifiably on the no fly list should not be permitted to purchase a gun. That seems like common sense. Speaker of the House Paul Ryan says that it is common sense. Of course nothing is ever that simple. Our ineptitude is now compounded by the fact that we have already fired the starter's pistol. While we do nothing, terrorists are probably arming themselves on the premise that they might not be able to do so in the future. Congress needs to have a sense of urgency.

Potential anti-terrorist legislation proposed by Republicans is being taken up by the House when they return. Section five of the proposed bill includes a GOP version of “No-Fly—No-Buy.”
When the Attorney General is notified of a request to transfer a firearm or an explosive to a person who is being, or has been investigated during the previous 5 years, as a known or suspected terrorist, the Attorney General shall, as appropriate, notify relevant Federal, State, or local law enforcement agencies or intelligence agencies concerning the identity of the prospective transferee.
The US Attorney for the relevant district may:
  • (i) delay the transfer of the firearm or explosive for a period not to exceed 3 business days; and
  • (ii) file an emergency petition in a court of competent jurisdiction to prohibit the transfer of the firearm or explosive, which petition shall receive the highest priority on the docket of that court. 
This is similar to Sen. Cronyn's bill that has tepid NRA support. Diane Feinstein (who I think is an honest broker) claimed that 72 hours is not nearly enough time which begs the question then of how people got on the list in the first place.

The the American Civil Liberties Union has serious doubts about the credibility of the FBI database noting that former Sen. Ted Kennedy was inadvertently added to the watch list. The ACLU also argues that due process is vague with respect to how one gets on the list and how one gets off the list. Today there is a piece on Heritage Foundation's blog suggesting that people don't even know that they are on the list.
Waiting on a routine flight from Sacramento back to Santa Barbara, Rep. Tom McClintock, R-Calif., discovered he was a terrorist. Or at least that’s what the FBI thought.
[…]
McClintock was left stranded at the Sacramento International Airport about 10 years ago. He couldn’t fly home to Santa Barbara under his own name.
The problem here is that we are on step two or three before step one. Some immediate action is required that will protect constitutional rights and afford due process.

Therefore, perhaps the following would work:

Enactment of a simple, immediate and straightforward No Fly-No Buy that, at the end of 90 days, will  transform into the Cronyn bill with expansion of the 72 hours to one week. During the first 90 days it will  be the job of the FBI to notify everyone who is on the list that they are on the list and why. We should be able to do that and we should know where all of these people are. If we don't know why or where then that is another serious problem which will be uncovered and that's a good thing.

Within each US Attorney's office we can appoint an interim administrative law judge. People who are on the list should be given a reasonable amount of time to either respond in writing or request a hearing. The interim ALJ will make a determination. If people still disagree with the ALJ then they can go to federal district court and plead their case.

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