Why Doesn’t Dianne Feinstein Want to Prevent Murders Like those Robert Dear Committed?

In response to Chris Murphy’s 15 hour filibuster, Democrats will get a vote on several gun amendments to an appropriations bill, one mandating background checks for all gun purchases, another doing some kind of check to ensure the purchaser is not a known or suspected terrorist.

The latter amendment is Dianne Feinstein’s (see Greg Sargent’s piece on it here). It started as a straight check against the No Fly list (which would not have stopped Omar Mateen from obtaining a gun), but now has evolved. It now says the Attorney General,

may deny the transfer of a firearm if [she] determines, based on the totality of the circumstances, that the transferee represents a threat to public safety based on a reasonable suspicion that the transferee is engaged, or has been engaged, in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources therefor.

[snip]

The Attorney General shall establish, within the amounts appropriated, procedures to ensure that, if an individual who is, or within the previous 5 years has been, under investigation for conduct related to a Federal crime of terrorism, as defined in section 2332b(g)(5) of title 18, United States Code, attempts to purchase a firearm, the Attorney General or a designee of the Attorney General shall be promptly notified of the attempted purchase.

The way it would work is a background check would trigger a review of FBI files; if those files showed any “investigation” into terrorism, the muckety mucks would be notified, and they could discretionarily refuse to approve the gun purchase, which they would almost always do for fear of being responsible if something happened.

The purchaser could appeal through the normal appeals process (which goes first to the AG and then to a District Court), but,

such remedial procedures and judicial review shall be subject to procedures that may be developed by the Attorney General to prevent the unauthorized disclosure of information that reasonably could be expected to result in damage to national security or ongoing law enforcement operations, including but not limited to procedures for submission of information to the court ex parte as appropriate, consistent of due process.

Given that an AG recently deemed secret review of Anwar al-Awlaki’s operational activities to constitute enough due process to execute him, the amendment really should be far more specific about this (including requiring the government to use CIPA). When you give the Executive prerogative to withhold information, they tend to do so, well beyond what is adequate to due process.

But there are two other problems with this amendment, one fairly minor, one very significant.

First, minor, but embarrassing, given that Feinstein is on the Senate Judiciary Committee and Ranking Member Pat Leahy is a cosponsor. This amendment doesn’t define what “investigate” means, which is a term of art for the FBI (which triggers each investigative method to which level of investigation you’re at). Given that it is intended to reach someone like Omar Mateen, it must intend to extend to “Preliminary Investigations,” which “may be opened on the basis of any ‘allegation or information’ indicative of possible criminal activity or threats to national security.” Obviously, the Mateen killing shows that someone can exhibit a whole bunch of troubling behaviors and violence yet not proceed beyond the preliminary stage (though I suspect we’ll find the FBI missed a lot of what they should have found, had they not had a preconceived notion of what terrorism looks like and an over-reliance on informants rather than traditional investigation). But in reality, a preliminary investigation is a very very low level of evidence. Yet it would take a very brave AG to approve a gun purchase for someone who had hit a preliminary stage, because if that person were to go onto kill, she would be held responsible.

Also note, though, that I don’t think Syed Rizwan Farook had been preliminarily investigated before his attack last year, though he had been shown to have communicated with someone of interest (which might trigger an assessment). So probably, someone would try to extend it to “assessment” or “lead” stages, which would be an even crazier level of evidence. By not carefully defining what “investigate” means, then, the amendment invites a slippery slope in the future to include those who communicate with people of interest (which is partly what the Terrorist Watch — not No-Fly — list consists of now).

Here’s the bigger problem. As I’ve noted repeatedly, our definition of terrorism (which is the one used in this amendment) includes a whole bunch of biases, which not only disproportionately affect Muslims, but also leave out some of our most lethal kinds of violence. For example, the law treats bombings as terrorist activities, but not mass shootings (so effectively, this law would seem to force actual terrorists into pursuing bombings, because they’d still be able to get those precursors). It is written such that animal rights activists and some environmentalists get treated as terrorists, but not most right wing hate groups. So for those reasons, the law would not reach a lot of scary people with guns who might pose as big a threat as Mateen or Farook.

Worse, the amendment reaches to material support for terrorism, which in practice (because it is almost always applied only for Muslim terrorist groups) has a significantly disproportionate affect on Muslims. In Holder v Humanitarian Law Project, SCOTUS extended material support to include speech, and Muslims have been prosecuted for translating violent videos and even RTing an ISIS tweet. Speech (and travel) related “material support” don’t even have to extend to formal terrorist organizations, meaning certain kinds of anti-American speech or Middle East travel may get you deemed a terrorist.

In other words, this amendment would deprive Muslims simply investigated (possibly even just off a hostile allegation) for possibly engaging in too much anti-American speech of guns, but would not keep guns away from anti-government or anti-choice activists advocating violence.

Consider the case of anti-choice Robert Dear, the Colorado Springs Planned Parenthood killer. After a long delay (in part because his mass killing in the name of a political cause was not treated as terrorism), we learned that Dear had previously engaged in sabotage of abortion clinics (which might be a violation of FACE but which is not treated as terrorism), and had long admired clinic killer Paul Hill and the Army of God. Not even Army of God’s ties to Eric Rudolph, the 1996 Olympics bomber, gets them treated as a terrorist group that Dear could then have been deemed materially supporting. Indeed, it was current Deputy Attorney General Sally Yates who chose not to add any terrorism enhancement to Rudolph’s prosecution. Dear is a terrorist, but because his terrorism doesn’t get treated as such, he’d still have been able to obtain guns legally under this amendment.

For a whole lot of political reasons, Muslims engaging in anti-American rants can be treated as terrorists but clinic assassins are not, and because of that, bills like this would not even keep guns out of the hands of some of the most dangerous, organizationally networked hate groups.

Now, I actually have no doubt that Feinstein would like to keep guns out of the hands of people like Robert Dear and — especially given her personal tie to Harvey Milk’s assassination — out of the hands of violent homophobes. But this amendment doesn’t do that. Rather, it predominantly targets just one group of known or suspected “terrorists.” And while the instances of Islamic extremists using guns have increased in recent years (as more men attempt ISIS-inspired killings of soft targets), they are still just a minority of the mass killings in this country.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

12 replies
  1. scribe says:

    “… the amendment invites a slippery slope in the future.”
    .
    That’s the whole point. The thrust of gun control, and terrorism, laws has been to expand both the laws and the zone of uncertainty of what is, or isn’t, legal such that people will not exercise their rights, be they to buy and own a gun, or to speak on matters of public concern (Holder v. Humanitarian Law Project). They want to create a slippery slope where some government bureaucrat will interpret regulations issued by his/her administrative office in a way that protects the bureaucrat from later recrimination and also be protected under Auer deference from allegations of changing the regs in mid-application.
    .
    Moreover, you understate the case when you say:
    .

    Now, I actually have no doubt that Feinstein would like to keep guns out of the hands of people like Robert Dear and — especially given her personal tie to Harvey Milk’s assassination — out of the hands of violent homophobes.

    .
    The long and the short of it is that Feinstein (and her friends and fellow-travellers) want to keep guns out of the hands of all civilians. Everyone. Robert Dear and Syed Farook are convenient puppets/cartoons, but Feinstein & Co. will use any such puppet/cartoon that comes their way to advance their agenda. Their movement is eliminationist. Make no mistake. It’s just that the AR is this year’s convenient bogeyman. Back in the 90s, Feinstein was trying to get shotguns designated as “destructive devices”, based on their being “devastating short-range killing machines”; the 1994 gun law which did a lot of things had to have an exemption written in for shotguns. Otherwise, every shotgun would have been a “destructive device”.
    .
    I don’t want to and won’t go onto a screed, but you understate the danger this bill poses to all rights protected by the Constitution. The Humanitarian Law Project precedent was one of the worst ones – it made speech free, subject to criminal penalties if some unreviewable administrator’s decision said otherwise. This bill merely expands that.
    .
    I look forward to the day when the likes of Sheriff Joe Arpaio, his minions, and those of his ilk on the government payroll are the only ones with guns. Then I will laugh at the pitiful bleatings of those oppressed by them and say “I told you so.”

  2. Ol' Hippy says:

    The democrats in general and Feinstein especially have been trying to dis-arm citizens since the 60’s. They use any ‘attack’ to drum up new legislation to rid us of our guns. The trouble is there just isn’t any good policy that addresses both the 2nd amendment and keeping military ‘style’ weapons out of lunatic’s hands. These new efforts sound good politically to an uninformed public but what “exactly” gets one on a no-fly or terrorist watch list? How does one get off of the ‘list’? These are the problems that need to be addressed before moving on. I do wish there was a good way to keep weapons out of deranged people, I really do, but I also want to keep my guns and Feinstein and her ilk don’t.

  3. P J Evans says:

    Because ‘everybody knows’ that good [white-ish] [conservative] Americans can’t possibly be terrorists. /s
    More seriously, the media is still focusing on radical reactionary Islam as the major source of terrorism in the US, and still missing that the Birdhall Putsch was domestic terrorism, just like church bombings and clinic bombings and the assassinations of doctors. (And the demonization of BLM and Occupy as violent and subversive organizations.)

  4. jerryy says:

    How about a do-over for the proposed legislation… because …
    .
    http://www.indystar.com/story/news/crime/2016/06/15/james-wesley-howell-charged-child-molestation/85925896/
    .
    This guy was under direct and explicit court orders to not have firearms. When he was arrested he had:
    .
    “• Twenty-five pounds of Shoc-Shot, an explosive used for blowing up targets. The two components needed to make it explosive had been mixed.
    .
    “• An Anderson Manufacturing AM-115 .223-caliber rifle. The rifle had a round in its chamber and additional rounds in a 30-round magazine attached to it. Another 30-round magazine was taped to the rifle.
    .
    “• A .30-06 bolt-action rifle with a round in its chamber.
    .
    “• A .22-caliber Ruger semi-automatic.
    .
    “Police said they also found a black hood, Taser, handcuffs, buck knife, security badge, additional ammo for the rifles and a 5-gallon container of gasoline, according to court documents.
    .
    .
    And the kicker:
    .
    “FBI and district attorney’s officials in Los Angeles County declined to comment on how and where Howell obtained the weapons. It remains unclear if he brought them from Indiana or picked them up along the way.”
    .
    Ms. Feinstein, et-al need to rethink what they are up to.

  5. earlofhuntingdon says:

    The “no-fly” list and, presumably, the terrorist watch list are fundamentally flawed and deeply anti-democratic. There are no defined bases for being included in either list and, most absurdly, no defined bases for getting off either list. Both processes, defined as Bill Bryson defines a British “system”, are beyond kafkaesque.

    Given the legion of false positives, duplicates, misunderstood names, biases and irrational indicia for being included on one or the other list, it would be a gross mistake to expand their use. The adage, “When it’s not broke, don’t fix it” has morphed into, “When it’s broke, use it all the more.”

    • emptywheel says:

      Well, in this case, they’re NOT using it. They’re using 5 years of investigation, which is likely even worse.

  6. earlofhuntingdon says:

    Until the government eliminates loopholes, such as gun show exceptions, in its weapons checks, all this would seem to be political theater.

  7. John Krogman says:

    I find this to be nonsense. Given the flaws in the No Fly system — not my personal experience so far, gulp — and the difficulty in codifying an effective and fair (non-discriminatory against any religion, ethnicity, etc.) system of background checks, we need no longer bark (ahem) at this tree.

    It is just not possible to design a fair and effective system for background checks.

    Occam’s razor makes us cut to the chase: assault weapons are a clear and present danger in America. Ban all assault weapons and large-capacity magazines, at the very least.

    It would be better if we banned all semi-automatics and strictly enforced the ban with severe penalties.

    Yes, many guns would become illegal.

    And how many lives would we save if we made murder more difficult? The more difficult it is, the more lives we could save.

    Saving lives should be our first priority. Getting rid of more effective killing machines will help us. The next mass shooting could be in your town, or one where friends and relatives live.

  8. martin says:

    Bottom line. Congressional MORONS like Difi think their power to enact a fucking law, is going to stop 3000 years of ideological backlash from 150 years of United States legal imperialism power used to tame, conquer, utilize, steal from, manipulate and murder those of the Islamic faith who oppose their agenda, via legal treaties, and outright 1% capitalist rape of the Mideast.. will one day reap what they have sown. So will Murika.

  9. martin says:

    ps.. as far as stopping those who are intent by virtue of insanity, ideological persuasion or plain hate, from getting a gun in America to commit mass murder.. good luck. To those in Congress who think just passing a law will make it happen.. hahahahahahaha! That is the true definition of a fucking idiot.

  10. martin says:

    ps..I forgot. The day these fucking imbeciles in Congress think they are going to put a wedge between the 2nd Amendment and those who want a weapon.. are not just idiots.. they are traitors to that which the Founders knew.

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