Wednesday, June 22, 2016

We must reject watchlists if we are a nation of laws

I favor strict national gun regulation. There are bad ways to do it, and good ways, but almost any consistent regime would be an improvement over the status quo. If you had asked me the day before yesterday, I would have said that I'd support nearly any gun control measure that was brought before the U.S. Congress.

Well, congratulations, Democrats! You've discovered a way to do it, maybe the only way, that I find stupid and unconscionable: extending the power of "terrorist watch lists" into the realm of gun control. That you should stage a theatrical stunt on the House floor over this measure, of all measures, after you've spent my entire adult life caving cravenly to one right-wing authoritarian demand after another, from illegal war to the normalization of torture, beggars the imagination.

Right off the bat, let's be clear that this measure will have almost no effect on gun violence. But unlike most gun control measures, this one is not merely feeble; it is actively malign, because it further empowers an evil institution.

The so-called "terrorist watch list" is a fundamentally broken idea that is both impossible to implement well, and a moral catastrophe for the rule of law and human equality and liberty.

There are over a million identities on the watchlist, mashed together from many sources of unknown provenance and overseen by nobody with any accountability to disinterested review. Anybody who has worked with database integrations and human organizations of any size knows with total certainty that this watchlist is full of nonsense. Ted Kennedy was on the no-fly list. Bollywood movie star Shah Rukh Khan was on the watch list. The "terrorist watchlist" is a pile of garbage wrapped in a tire fire.

It can't help but be so: the count of people worldwide who engage in terrorism against civilians is miniscule. It is a numerical certainty that nearly all of the people who are on a million-member watchlist are entirely innocent and have no potential to commit a terrorist act.

And how did the data come to be such a fetid swamp of nonsense? Nobody will tell you. The contents of the watchlist are secret; the processes for getting an identity onto the watchlist are secret; the criteria for getting your identity off the watchlist are secret. Good luck if you end up on it, and you're somebody with less clout than a sitting United States Senator or an international celebrity.

Maybe it's time for a brief refresher on how a nation of laws is supposed to work. Laws must be known to the people who govern them. There must be an agreed-upon process — a due process, you might say — by which people are deprived of their rights under those laws. Once you have been convicted of a crime, the state's carceral machinery may act upon you, but until then, merely suspected persons retain their rights. And you don't lose your rights in secret, whereupon you may sue to get them back; the burden of proof is on the state to exercise this due process to take your rights away.

Making legal processes open to public inspection is the most powerful way that we know to ensure that their operation is just; that, for example, we are not merely turning people into second-class citizens for being Muslim or black or whatever the current least-favored category of citizens is. One would think that this argument, at least — that, as Black Lives Matter and related movements have made undeniably clear in recent years, the state operates in flagrantly discriminatory ways when it operates without scrutiny — would carry some currency, even in a left-of-center discourse that values civil liberties less and less as the Bush years recede into the distance.

Yet through the depressing machinery of tribalism, it has suddenly become conventional wisdom in progressive circles that all right-thinking people shall support a bill that further entrenches the influence of the racist, unaccountable, unconstitutional no-fly-list. Otherwise-intelligent people in my Twitter feed have even argued that passing this legislation is the first step towards "fixing" the watchlist:

Astonishing. Astonishing. I have no way of even processing the level of wishful thinking and partisan groupthink necessary for a reasonable person to make this argument in good faith. Can you think of a single example in history where giving a Kafkaesque bureaucratic apparatus additional unaccountable power led to its reform, let alone any such apparatus connected with the security state? I doubt it; the ratchet turns in the other direction.

I have an alternate prediction. Should this legislation be passed by Democrats, we can look forward to the positions around the watchlist becoming crystallized along partisan lines. Since empowering the watchlist will count as a signature political achievement for Democrats, attained through a highly memorable media stunt, henceforth Democrats will fight any efforts that even remotely smell like dismantling the watchlist; this will, of course, include any efforts at meaningful reform. As reverence for the immaculate watchlist turns into a shibboleth of partisan identification, enterprising Democrats will eventually start to propose even more unconstitutional measures to extend its influence into other areas of public life. The extensions will come with, at best, token reforms; perhaps these reforms will moderate its effects on upper-class and upper-middle-class people with surplus time and financial resources, but leave the overall system fundamentally unaccountable and outside any recognizable form of due process for nearly everybody on it. Millions more human beings will suddenly become second-class in the eyes of state; their circle of rights will gradually shrink. The normalization of secret law in the United States will accelerate. Neither Democrats nor Republicans will have the stomach to turn this ratchet backwards.

Furthermore, having discovered again that "terrorism" is the magic word which can rally even the most spineless legislators into action and cow even the most intransigent opponents, Democrats will use this handy rhetorical cudgel to beat anybody who disagrees with them, just as Republicans did during the Bush years, until it is nearly meaningless with overuse. This will be used to pass all manner of additional legislation, equally stupid. Meanwhile, progressives like myself will be excoriated for allegedly being on the side of terrorists and right-wing loons, simply for opposing stupid and malign laws.

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