Per The Guardian, Noor Salman and Seddique Mateen, the wife and father of the Orlando nightclub shooter, respectively, have been added to the “no fly” list:
The second wife and father of Omar Mateen, the man who burst into a gay nightclub and killed 49 people, have been placed on the no-fly list by federal officials.
The no-fly list prohibits Noor Salman and Seddique Mateen from traveling via a commercial airline until investigators conclude what role they played, if any, in the worst shooting in modern US history last weekend.
This situation represents a microcosm of the larger discussion occurring right now on Capitol Hill and across the country–namely, where the legal boundary is, or ought to be, between government’s responsibility to safeguard its citizens from harm, and a citizen’s expectation of due process before having their rights curtailed.
It would appear, at least from today’s revelation, that government’s intention is to enlarge the former at the expense of the latter, and so in lies the problem. As it stands right now, Salman and Mateen, despite whatever seeming involvement they did or didn’t have in the shooting, are–for the time being–completely innocent in the eyes of the law. They have not had warrants issued for their arrest. They have not been charged with a crime, nor have they been convicted of one. In spite of this, they’ve still been placed on a government list that denies them certain abilities on the sole basis of merely being on the FBI’s radar.
This is not what due process looks like. Akin to the 1st Amendment’s prohibition on prior restraint–restrictions on speech may not extend into the future–government ought not be able to restrict rights, such as freedom of movement, on a presumption that person may be charged with a crime in the future. Salman and Mateen may indeed be guilty of a crime–Salman’s behavior in particular smells an awful lot like “accessory”–but similarly, they may not be. For now, we don’t know. So, on what basis is it permissible to punish them anyway?
Placing them, or anyone else, on a “no fly” list while government takes its time conducting their investigation–which may or may not bear fruit–is no acceptable stand-in for due process. Were the government to secure an arrest warrant–with its attendant approval from a judge–on the probable cause that Salman or Mateen had committed a crime, there would be no controversy in denying them the ability to abscond by adding them to the “no fly” list. Government would, at a minimum, have satisfied its burden to demonstrate some sort of wrong-doing. That is the process due to citizens.
This has not happened, however, as the FBI has instead opted for the path of laziness: add people to the list now, and perhaps justify the decision with a bona fide criminal charge later. If it happens to make life difficult, well…those are the breaks, isn’t it? If you aren’t ultimately charged? Oops, that’s on us. It’s been suggested to me that people wrongly added to the list should simply appeal to the courts for redress. What a way for government to treat the innocent in a country that prizes constitutional protections: First, we’ll sully your rights without cause, then make you plead before us for recompense.
If George Orwell could see us now.