What a difference two months makes. In April, we offered harsh criticism of the national ACLU’s opposition to important due process criminal justice reforms pending in Congress. At the time, we described the ACLU as “a diminished shadow of its former self” and argued that “(t)he ACLU is now led by cafeteria civil libertarians who choose the liberties they deem worthy of protection based on a narrow ideological agenda.”
This week, the ACLU redeemed itself with a courageous stand against legislation that would have expanded the Obama administration’s reliance on secret watch lists to deny Americans their constitutional rights.
In the wake of the Orlando massacre, Senator Dianne Feinstein introduced legislation in the Senate that would authorize the attorney general to block a gun sale for anyone suspected of terrorism. Feinstein’s bill would also have authorized the attorney general to add anyone to a watch list who had been investigated for terrorism within the past five years, even if that person had been completely exonerated of any involvement in terrorism.
The ACLU sent a letter to senators urging them to vote no because of “the use of vague and overbroad criteria and the lack of adequate due process.” The ACLU’s letter argued that the “regulation of firearms and individual gun ownership or use must be consistent with civil liberties principles, such as due process, equal protection, freedom from unlawful searches and privacy.”
After the Feinstein bill was defeated in the Senate, the House Democrats sought to force Speaker Paul Ryan to bring a nearly identical companion bill up for a vote. The bill was first introduced by Sen. Frank Lautenberg and Rep. Peter King in 2007. According to King, Speaker Pelosi refused to bring the bill up for a vote when the Democrats controlled the House. Nearly 10 years later, congressional Democrats demanded that the GOP allow a vote on the very same legislation.
House Democrats took a page out of Donald Trump’s playbook by using ad hominem attacks, fear-mongering and deliberate disinformation in a cynical, shortsighted attempt to score political points at the expense of Americans’ constitutional rights. Their indecorous protest turned the House of Representatives into an infantile reality TV show. As legal expert Alan Dershowitz put it during an appearance on CNN, the House Democrats behaved like “a bunch of buffoons.”
Dershowitz was being kind.
Democrats and their allies in the powerful lobbying group the Center for American Progress repeatedly accused opponents of wanting to arm terrorists if they opposed either the Senate or House No Fly List legislation. On Twitter, Sen. Elizabeth Warren said, “the Senate GOP have decided to sell weapons to ISIS.” Rep. Jerry Nadler tweeted that the bill’s critics’ due process arguments are “a red herring,” and accused them of using “due process as an excuse to support mass murder.”
While the House Democrats were making fools of themselves on the floor of Congress, lawyers for the ACLU had already appeared before a U.S. district court in a lawsuit that resulted in rulings that the No Fly List is unconstitutional. The ACLU filed the lawsuit in June 2010 on behalf of 10 U.S. citizens and permanent residents — four of whom are U.S. military veterans — challenging their placement on, and inability to get off, the list.
“(T)he standards for inclusion on the No Fly List are unconstitutionally vague, and innocent people are blacklisted without a fair process to correct government error,” the ACLU’s National Security Project Director Hina Shamsi wrote in a commentary last December on the organization’s website. “Our lawsuit seeks a meaningful opportunity for our clients to challenge their placement on the No Fly List because it is so error-prone and the consequences for their lives have been devastating.”
Shamsi noted that the U.S. district court, in two separate rulings, had already held: 1) “that constitutional rights are at stake when the government stigmatizes Americans as suspected terrorists and bans them from international travel”; and 2) “that the government’s refusal to provide any notice or a hearing violates the Constitution.”
The national ACLU must have faced tremendous pressure to remain silent in the face of the congressional Democrats’ ideological onslaught on due process. But the national ACLU stood firm on principle, even if it meant aligning itself with the NRA and the House GOP.
“We disagree with Speaker Ryan on many things,” Shamsi wrote last year. “But he’s right that people in this country have due process rights. We want to see them protected.”
And so should the Democrats in Congress, if they have an ounce of integrity and any respect for the Constitution.
Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow. Nick Hentoff is a criminal defense and civil liberties attorney in New York.