Earlier this year, I took a call from a UC Berkeley student who was escorted off a Southwest Airlines flight. Khairuldeen Makhzoomi was allegedly deemed suspicious following a phone conversation he’d had in Arabic. If the humiliation of being escorted off the plane were not enough, he was also subjected to hours of questioning and search by multiple law enforcement agencies. When he was finally cleared of suspicion, he was refunded his airfare and left stranded at the airport. Khairooldin is one of the few to recently come forward with his story, but he is one of tens of thousands of Americans deemed “suspicious” and subject to questioning, search, and discriminatory treatment by law enforcement based on race, religion, national origin, or even the language they were overheard speaking.
I’ve now counseled several American citizens placed on the no-fly list. They were told by FBI agents that the only way to maybe be taken off the list was to forego their rights, to take lie detector tests, and to not further complicate their situation by consulting with an attorney.
I have personally represented or overseen the representation of hundreds of innocent American who have been targeted by the FBI for “voluntary” questioning and often threatened when they asserted their constitutional rights. In these situations, agents have used every tactic imaginable to intimidate individuals into speaking about their community, their religion, and their politics – all questions that the First Amendment specifically protects Americans from ever having to discuss with law enforcement or other government agents.
I have colleagues, family members, friends, and teachers, who are stopped at the airport for “enhanced” screening often enough that security personnel now recognize them. Travel is traumatic for these individuals, and they often do everything possible to minimize having to fly.
A common thread in these experiences is that the people affected have been overwhelmingly American Muslims.
With this in mind, it should be easy to understand why my fascination with the seemingly courageous Congressional sit-in in support of pushing forward a vote on gun control, turned to horror as I learned of some of the measures being advocated. Most frightening was talk of “barring terrorists” from purchasing guns, with proposals to utilize the faulty terrorist “watch list” to discern who should and should not be allowed to buy a gun. According to the government’s own reports, 35-45% of those on the watch list are included in error and this proposal would thereby infringe upon the Constitutional rights of innocent Americans deemed “criminals” without any due process. Unfortunately this advocacy has not been limited to the sit-in and talk of barring “suspected” terrorists continued this week with 200 artists publishing a letter seeking the same in Billboard Magazine.
My objection is not to gun control, better background checks, universal prohibitions on military grade weapons, or anything else that is equally applicable to all Americans. Orlando, Sandy Hook, Newtown, and Charleston - all tragedies - make very clear that we need change. But putting more power in the hands of the FBI and other law enforcement agencies, who have already targeted marginalized communities is not the solution. The Orlando shooter was not on a terror watch list. Neither were the Sandy Hook shooter, the Newtown shooter, or the Charleston shooter.
The proposals up for debate in Congress do not make us any safer from gun violence and run counter to our values as Americans.
What we do know is that the terror watch list and variations of it are subject to ongoing legal challenges and have no distinct notification or assessment process.
For Progressives, it is more frightening to read of Senator Sanders speaking of “potential terrorists” without providing any criterion for his assertion, and of Representative Nadler equating concerns about due process as an “excuse to support mass murder” than it is to see Representative Gohmert claiming that “radical Islam” is the cause of shooting deaths rather than guns. The latter is overt, and quickly objected to by most everyone. The former however is more subtle, more digestible, and not only is it less objected to, it is being cheered on as an important debate that will protect us from the next mass shooting.
While many advocates were jubilant about Wednesday’s show of civil disobedience, I was left troubled and dismayed by the actions of supposed civil liberties allies that brushed aside the principles of due process under the law. As many have noted throughout our country’s history, we should never concede that we must sacrifice liberty in order to obtain security.