Trey Gowdy Grills DHS Official on Due Process
“Can you name another Constitutional right that is chilled, until you find out it’s chilled, then you have to petition the government to get it back?”
Last week, Rep. Trey Gowdy (R-SC) schooled an official from the Department of Homeland Security on our Constitutionally protected right to due process.
“Let me ask you another question about the terrorism list, what process if afforded a U.S. citizen before they go on that list?” Gowdy asked.
After a brief pause, Ms. Burriesci of the Department of Homeland Security, obviously confused said, “I’m sorry, there’s not a process afforded the citizen prior to getting on the list. There is a process should someone feel they are unduly placed on the list.”
“My question is, can you name another Constitutional right that is chilled, until you find out it’s chilled, then you have to petition the government to get it back?” continued Gowdy.
The Democratic party’s failure to successfully pass gun control has lead them looking for alternatives. Using the recent terrorist attacks on Paris, the latest Democrat-backed gun control inroad is a government run terrorist watch list or “no-fly” list.
Things the government has no authority to do: 1) violate Second Amendment rights, 2) prohibit American citizens from receiving due process. The no-fly list does both.
Larry Keane explained the issue at the Daily Caller:
recently introduced on Capitol Hill is legislation that would ban anyone whose name appears on a secret government terrorist watch list from purchasing a firearm. Sounds good, right? Well, no, is the answer in a single word. We and others have been talking about the problems with this “Terrorist Watch List” for a few years now. Even the liberal Huffington Post decried this list for its lack of due process and the ease with which almost anyone could have their name added to it.
As we explain in our Terrorist List Fast Facts, we all support the goal of preventing terrorist acts. But terrorists and criminals should be on law enforcement wanted lists or charged with appropriate crimes. These actions would effectively prohibit dangerous individuals from purchasing firearms. It is, quite simply, unacceptable to deny Americans their Second Amendment rights without due process because their name was placed on an error-prone secret government list for which there is no underlying statutory authority.
Further, under the Democrats’ plan, federal authorities would not even have to tell you why your name is on the list. Even the American Civil Liberties Union has taken umbrage and rightly so. The late lion of liberalism, Sen. Ted Kennedy, was prevented from flying by having his name on the so called “no fly list because an alleged terrorist was using the name Edward Kennedy. Providing equal opportunity in its inaccuracy, Weekly Standard writer and Fox News Channel contributor Steven Hayes also was listed, apparently for going on a cruise. The Federalist details all this and it’s worth reading.
The ACLU is opposed to the list for the obvious reason that could be used to stop gun purchases.
ACLU (WHICH IS SUING OVER THE NO FLY LIST): “With Major Reform,” No-Fly List Could Be Used To Stop Gun Purchases https://t.co/kfmxEPt3We
— Katherine Miller (@katherinemiller) December 7, 2015
And wouldn’t you know, Connecticut plans to prohibit all individuals on the no-fly list from purchasing fire arms:
Connecticut Gov. Dannel Malloy on Thursday announced he would sign an executive order banning the sale of guns to people on terrorist watch lists, making Connecticut the first state to do so, after a similar measure failed to win support in Washington last week. The order would affect people on watch lists maintained by the federal government, including the no-fly list.
“We are taking action today,” Malloy, a Democrat, said in a news conference, citing the recent shootings in Paris and San Bernardino, Calif., and saying those incidents should be a “wake-up call for all of us.”
“If you cannot fly due to being on a government watch list, you should not be able to purchase a firearm,” Malloy said.
“Or my favorite, the eighth amendment. We’re going to subject you to cruel and unusual punishment until you petition the government to get off the list. Is there another Constitutional right that we treat the same way for American citizens that we do the Second Amendment? Can you think of one?” Gowdy concluded.
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As I said somewhere the other day…
I’m not agin the whole notion of a “no-fly list” in principle.
But IF you wanted to design such a list to BOTH be an affront to civil liberties AND completely ineffective, this would be it.
And both the Boooooosh and Obamic regimes are to blame.
If you are on the no-fly list, can you be denied service at a lunch counter or seating at the front of a bus?
This is such an important piece of journalism, Kimberly, thank you for posting. Fox News (because, God knows, no one else will pick this up) needs to do a segment on this too.
Sorry I misspelled your name Kemberlee!
Someplace please tell that this is an SNL opening? If not, we are in deeper trouble then I thought. Is Obama really proud of his minions going to Capitol Hill and representing his administration by their actions that they make Mr. Bean look intelligent by comparison.
No, it doesn’t. There is no constitutional right to board an aeroplane, or not to be recorded on a list. Buying a weapon, however, is a constitutional right, so an attempt to deny it based on this arbitrary list would attract stricter scrutiny. Gowdy’s analogies, however, aren’t really valid. Supposing there were solid proof that someone is affiliated with a terrorist organisation; they would still have all their first, sixth, and eighth amendment rights, but not their second amdendment rights. Terrorist supporters, and even actual terrorists, are entitled to express their opinions, to exercise their religions, to legal representation, and not to be subjected to cruel and unusal punishments, but they’re not entitled to arm themselves.
You’re only SORTA right.
There is no CONSTITUTIONAL right to fly on a commercial airliner.
But there is a due process right NOT to be prejudiced in your right to travel interstate (which is a constitutional right) or your right to form contracts (with an airline).
Put another way, and taken to an extreme for illustration, suppose that the Obami declared all Americans…or conservatives who could be identified…were on the “no-fly list”? You can’t assert that would not impose on due process.
A ban on all flying would fail rational basis review, to which all government action is subject. A ban on conservatives flying would be struck down, not as a burden on the non-existent right to fly, but as a burden on the first-amendment right to hold conservative opinions (just as a ban on Moslems flying would run into the same barrier). But putting people on a no-fly list due to a vague and inarticulable suspicion that they might be dangerous has neither of these problems, even if the process seems very nearly arbitrary. There is no due process right involved, so long as other means of travel are available. Isn’t that why John Gilmore lost his case?
A ban that nobody can fly would not fail rational basis test which is almost impossible to fail, in effect. As an aside, you are correct that the constitutional right to interstate travel does not offer protection to a person seeking to fly or even drive to an interstate location. Nor does the no fly list violate any constitutional right to contract, since the Supreme Court has basically written any provisions relating to laws affecting contracts out of the constitution.
Gilmore’s cases seem (upon very quick and dirty look) to have to do only with his refusal to produce ID when he tried to fly. He lost because the requirement to produce ID did not violate any constitutional rights and he was not (as he tried to claim) entitled to notice of the ID requirement in advance.
Gilmore seems to be a “crackpot” to put it mildly.
But as stated previously, if a law is passed that says you can’t by a gun for home defense if you are on the no fly list, then that law directly restricts 2nd amendment rights and therefore may be unconstitutional without reference to due process requirements and even if done in some way that is not a violation of 2nd amendment constitutional rights, it must still satisfy the other requirements of the constitution such as equal protection and due process.
Due process refers only to procedural due process which basically means notice and an opportunity to appeal an adverse effect/application of the law.
Your claim that an arbitrary nonsensical process for selecting people to be on no fly list would be OK, I think fails for violating equal protection. Further the law must provide at least procedural due process for people claiming the rules for putting people on the list don’t properly apply to them.
I can’t make head or tail of your long post, so I’ll just restate my position: the claim in the post that the no-fly list violates either the 2nd amendment or the right to due process is false. The 2nd amendment is irrelevant, and there is no right to due process unless someone is being deprived of a constitutionally protected liberty. Since there is no right to fly, there is no right to due process before being forbidden to fly.
There must still be rational basis review, which is a very low bar but not a meaningless one. It is not impossible for a law to fail it, just difficult. A ban on all flying would fail. So would a process for adding people to the list that was completely arbitrary, such as a coin toss. But adding people because someone at the DHS suspects that they might be connected to terrorists passes. Equal protection requires an identifiable class that is being denied boarding, i.e. the very opposite of arbitrariness.
Buying a gun is a constitutionally protected right, and thus it can’t be denied without due process. So using the no-fly list for that would be unconstitutional, unless the no-fly list itself were radically reformed so that there was due process before being added, or at least prompt and rigorous due process after being added. But that would risk making the list useless for its primary purpose of protecting aircraft from suspected terrorists.
US courts ruled in the early 20th Century that Americans have a right to “travel” using the “common conveyances” of the time. Today, that would certainly include aircraft. If government can prevent you from boarding an aircraft, it could also (on the same pretense of promoting public safety because you’re potentially dangerous) prevent you from boarding a bus or train, it could prevent you from owning a vehicle (or having a license to operate one) or a bicycle, or even a pair of shoes (dangerous people should be forced to stay at home and not travel at all in public). If they can do the first, they can do any of the others, and effectively prevent you from exercising your right to travel. Ridiculous? Yes – reductio ad absurdum.
We also have a right to contract for services and a right to enjoy our property (in this case, money) in any legal manner. So the no-fly list also deprives Americans of their right to contract (for the legal service of air transportation, commonly enjoyed by nearly all citizens) and their right to enjoy their property (by preventing from spending it as they please).
More specifically they ruled a right to interstate travel. Most of these rulings dealt with action by a State that burdened the right to travel to another state. They did not involve international travel. There are other cases with different standards on international travel.
As to interstate travel the cases turned on one of 3 possible areas of analysis. That the right to freedom of movement was a liberty interest of National citizenship protected by the privileges and immunities clause of the 13th amendment and therefore could not be burned by a State government, that the right to freedom of movement between the states implicated interstate commerce and could only be regulated by the federal government and not by a State government, and that the right to freedom of movement was a liberty interest protected by the due process clause of the 5th amendment as to both State and Federal governments.
As to a burden on the right of free movement/interstate travel by a State government any such burden must pass strict scrutiny tests and they never do. As to a burden on the right of free movement/interstate travel by the Federal government the standard of review on such a burden is less because the Federal government is entitled to regulate national citizenship rights to some extent, is entitled to regulate interstate commerce. That leaves compliance with due process as one hurdle for federal government regulation.
The exact standards of review to be applied to restriction by the federal government on interstate travel as regards a no fly list is not set by these past cases.
The results of the ACLU lawsuit against the no fly list might tell us, but it is certainly more complicated and nuanced than an allegation that the federal government must meet the same strict scrutiny standards applied to State law burdens on the right of freedom of movement.
You are wrong Millhouse, in effect. While the government could say nobody at all can fly on an airplane, once tge government allows flying then the government can not select people who can fly and people who can’t fly in any manner that violates a constitutional right. So for example the government can’t say black people can’t fly or catholics can’t fly or select people who can’t fly in a manner that denies equal protection of the laws. Then if the government has a no fly selection process that doesn’t directly violate a constitutional right the selection process must still comply with the due process requirements of the constitution.
No, you are wrong, as usual. Equal protection is not implicated here, because there is no identifiable class that is being excluded from flying. There is no individual right to due process when no constitutional right is being denied.
“There is no individual right to due process when no constitutional right is being denied.”
I agree with the sentence above and have not stated anything otherwise.
As to whether arbitrary placement of people on no fly list would violate equal protection, I disagree, but do confess I am far from an expert in these matters. It seems to me that telling some group of citizens that they can’t fly when everyone else can fly would violate some liberty interest protected by the constitution, and therefore would have to pass some level of constitutional scrutiny. Whether that liberty interest falls under equal protection or some other provision of the constitution I can’t say with absolute certainty, but since I’m saying a constitutional protected liberty interest is being affected then due process applies as well.
Equal protection is not implicated by the no-fly list? Rubbish!
Whenever the government prevents some people in a group “here” from doing what the people in a group “over there” can legally do, it is selectively enforcing policy upon those it decides to exclude from the legal activity. It does so without due process of law if it doesn’t start with an indictment, proceed to a trial, or if it fails to gain a conviction at trial, in punishment for which the people in the target group (formerly called “defendants”) can be denied the exercise of a common right or legal activity.
Although rationally the selection isn’t arbitrary (admitting, for the moment, that everyone on the list is actually a threat to public safety), it is still arbitrary under the law for the lack of due process. Government acts outside of its constitutional authority are, under the law, arbitrary by definition, because only constitutional acts can be considered not arbitrary. (Even constitutionally authorized powers can be exercised in an arbitrary, and therefore unconstitutional, manner.)
Milhouse, I think he was referring to the US where liberty cannot be restricted without due process of law. See Tenth Amendment in regard to declared powers. What country are you from?
I live in the USA where there is no tenth- (or even ninth-) amendment liberty to board a commercial aircraft. You must live on some other planet where constitutional law developed differently.
The currently pending ACLU lawsuit against the no fly list may settle this once and for all. Until then… I think:
1. You are wrong to say the government can’t tell everyone no flying. They can since as you state there is no constitutional right to fly.
2. You are correct that there is no constitutional right to fly that applies to the public in general.
3. You are wrong however when you claim that the government can grant a general (sort of statutory) right to fly to all and then turn around and deny that general (sort of statutory) right to fly for some sub-group without such denial having to: (a) pass at least some rational basis test; (b) avoid other constitutional infirmities (such as race, gender, equal protection, etc etc); and (c) allow for procedural due process.
4. To argue against 3. above would be to argue that the government
Banning air travel would fail rational basis review. So would adding people to the no fly list at random. But people aren’t being added at random. They’re being added for reasons that have some rational basis, but fall far short of what’s required to justify depriving someone of a constitutionally protected liberty. Thus there is no right to due process for being on the no fly list, but there would be if the list were to be used for the purpose the Democrats are now proposing.
Fire all these people! The are skewing us so they can be kind to foreign nationals. Traitors!
I love Trey Gowdy. The look on Burriesci’s face was priceless. It’s as if she didn’t understand why stripping away the right of due process could possibly be a problem.
Well, Sanddog, to her it ISN’T a problem. Stripping Constitutional rights is the goal of this Administration.
Do I have a right to pee? It’s not in the constitution. Guess not.
Saw several segments with this woman. Dumber than a box of rocks! They must have sent her to represent Jeh Johnson who is similarly stupid and a tool. Hopefully our new President won’t appoint a hack as head of Homeland Security. This is shameful.
Hopefully our new President will shutter the Dept. of Homeland Security.
Leftists are always against unconstitutional law enforcement policy, until they figure out a way to put it to their own use.
What good is no-flying? Presuming the TSA can keep guns off the plane–which the government must assert they do despite evidence to the contrary–than anybody who boards with evil intent is going to be useless. You don’t have to look at Flight 93. As somebody said, they had us on the mat for under two hours until the 93d detachment of the general militia reported for duty. The news will report people getting nuts on aircraft and being dealt with briskly by the cabin crew and passengers. Whether they’re drunk, delusional, or subject to attacks of Sudden Jihadi Syndrome, it usually turns out badly for them.
As Mark Steyn said, ‘way back, lean young men with tight haircuts, burly businessmen and arthritic grannies all want a piece of the next clown to try something.
A passenger’s sudden assault on a Greyhound driver at 70 miles per hour is a different issue. Quite literally, there is nothing people on the list are precluded from doing except flying.
There is no point to the list.
I join in the chorus of praise for Representative Gowdy for his performance in prying open an Obama-kid’s brain far enough to let in just a peep of light. Her bewilderment, after months of the entitled life amongst the unaccountable political Gods of the Administration, is balm to the soul.
This is the most inept admin I have ever seen. The whole thing needs an overhaul to find competent people that actually knows what our laws are,. This woman was a downright embarrassment, & should be fired.
What a side show!