Firearm and Explosives Background Checks Involving Terrorist Watch List Records
Gao ID: GAO-09-125R May 21, 2009This report formally transmits a briefing in response to a Congressional request. Specifically, Congress requested that GAO update our January 2005 report entitled, Gun Control and Terrorism: FBI Could Better Manage Firearm-Related Background Checks Involving Terrorist Watch List Records, GAO-05-127 (Washington, D.C.: Jan. 19, 2005). Under the Brady Handgun Violence Prevention Act and implementing regulations, the Federal Bureau of Investigation (FBI) and designated state and local criminal justice agencies use the FBI's National Instant Criminal Background Check System (NICS) to conduct checks on individuals before federal firearms licensees (gun dealers) may transfer any firearm to an unlicensed individual. Also, to assist the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the FBI conducts NICS background checks on individuals seeking to obtain a federal explosives license or permit. Under current law, there is no basis to automatically prohibit a person from possessing firearms or explosives because they appear on the terrorist watch list. Rather, there must be a disqualifying factor (i.e., prohibiting information) pursuant to federal or state law, such as a felony conviction or illegal immigration status. In response to the request, this report addresses (1) the number of NICS background checks involving terrorist watch list records, the related results, and the FBI's current procedures for handling these checks and (2) the extent to which the FBI has taken action to collect information from NICS background checks involving terrorist watch list records and share this information with counterterrorism officials to support investigations and other counterterrorism activities.
In summary, from February 2004 through February 2009, FBI data show that 963 NICS background checks resulted in valid matches with terrorist watch list records; of these matches, approximately 90 percent were allowed to proceed because the checks revealed no prohibiting information and about 10 percent were denied. Regarding FBI procedures for handling these checks, in response to a recommendation in our January 2005 report, the FBI began conducting all NICS background checks involving terrorist watch list records in July 2005--including those generated via state operations--to ensure consistency in handling. Moreover, in April 2005, the FBI issued guidance to its field offices on the availability and use of information collected as a result of NICS background checks involving terrorist watch list records to help support investigations and other counterterrorism efforts. In April 2007, the Department of Justice (DOJ) provided legislative language to Congress that would give the Attorney General discretionary authority to deny the transfer of firearms or the issuance of a firearm or explosives license or permit when a NICS background check reveals that the purchaser is a known or suspected terrorist and the Attorney General reasonably believes that the person may use a firearm or explosives in connection with terrorism. A related bill was introduced in the 111th Congress and is currently pending (H.R. 2159). Neither DOJ's proposed legislative language nor the related bill include provisions for the development of guidelines further delineating the circumstances under which the Attorney General could exercise this authority. In October 2007, we reported that agencies that use terrorist watch list records to screen for potential terrorists use applicable laws or other guidelines as a basis for determining what related actions to take, if any, such as the criteria that are used for determining which subjects of watch list records should be precluded from boarding an aircraft. Further, Homeland Security Presidential Directive 11 requires that terrorist watch list records be used in a manner that safeguards legal rights, including freedoms, civil liberties, and information privacy guaranteed by federal law. Guidelines delineating how the Attorney General could use any new authority would help DOJ and its component agencies (1) provide accountability and a basis for monitoring to ensure that the intended goals for, and expected results of, the screening are being achieved and (2) ensure that terrorist watch list records are used in accordance with requirements outlined in the Presidential directive. In response to our questions, DOJ was noncommittal on whether it would develop guidelines if legislation providing the Attorney General with discretionary authority to deny firearms or explosives transactions involving subjects of terrorist watch list records was enacted.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Eileen Larence Team: Government Accountability Office: Homeland Security and Justice Phone: (202) 512-6510GAO-09-125R, Firearm and Explosives Background Checks Involving Terrorist Watch List Records
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GAO-09-125R:
United States Government Accountability Office:
Washington, DC 20548:
May 21, 2009:
The Honorable John Conyers, Jr.
Chairman:
Committee on the Judiciary:
House of Representatives:
The Honorable Robert C. Scott:
Chairman:
Subcommittee on Crime, Terrorism, and Homeland Security:
Committee on the Judiciary:
House of Representatives:
The Honorable Frank R. Lautenberg:
United States Senate:
Subject: Firearm and Explosives Background Checks Involving Terrorist
Watch List Records:
This letter formally transmits the enclosed briefing in response to
your request. Specifically, you requested that we update our January
2005 report entitled, Gun Control and Terrorism: FBI Could Better
Manage Firearm-Related Background Checks Involving Terrorist Watch List
Records, GAO-05-127 (Washington, D.C.: Jan. 19, 2005).
Under the Brady Handgun Violence Prevention Act and implementing
regulations, the Federal Bureau of Investigation (FBI) and designated
state and local criminal justice agencies use the FBI's National
Instant Criminal Background Check System (NICS) to conduct checks on
individuals before federal firearms licensees (gun dealers) may
transfer any firearm to an unlicensed individual.[Footnote 1] Also, to
assist the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF),
the FBI conducts NICS background checks on individuals seeking to
obtain a federal explosives license or permit.[Footnote 2] Under
current law, there is no basis to automatically prohibit a person from
possessing firearms or explosives because they appear on the terrorist
watch list.[Footnote 3] Rather, there must be a disqualifying factor
(i.e., prohibiting information) pursuant to federal or state law, such
as a felony conviction or illegal immigration status.
In response to your request, this report addresses (1) the number of
NICS background checks involving terrorist watch list records, the
related results, and the FBI's current procedures for handling these
checks and (2) the extent to which the FBI has taken action to collect
information from NICS background checks involving terrorist watch list
records and share this information with counterterrorism officials to
support investigations and other counterterrorism activities. To
conduct this work, we reviewed relevant laws, regulations, policies,
and procedures related to NICS background checks on individuals
attempting to purchase firearms or obtain a firearm or explosives
license or permit. We also obtained data on NICS background checks that
resulted in valid matches with terrorist watch list records from
February 2004 (when NICS started checking against terrorist watch list
records) through February 2009. We discussed the sources of data with
FBI officials as well as the policies and procedures that FBI officials
used to maintain the integrity of the data, and determined that the
data were sufficiently reliable for the purposes of this review. We
also reviewed FBI policies and procedures for collecting and sharing
information related to NICS background checks involving terrorist watch
list records, and interviewed officials from relevant FBI components.
In summary, from February 2004 through February 2009, FBI data show
that 963 NICS background checks resulted in valid matches with
terrorist watch list records; of these matches, approximately 90
percent were allowed to proceed because the checks revealed no
prohibiting information and about 10 percent were denied. Regarding FBI
procedures for handling these checks, in response to a recommendation
in our January 2005 report, the FBI began conducting all NICS
background checks involving terrorist watch list records in July 2005--
including those generated via state operations--to ensure consistency
in handling.[Footnote 4] Moreover, in April 2005, the FBI issued
guidance to its field offices on the availability and use of
information collected as a result of NICS background checks involving
terrorist watch list records to help support investigations and other
counterterrorism efforts. In April 2007, the Department of Justice
(DOJ) provided legislative language to Congress that would give the
Attorney General discretionary authority to deny the transfer of
firearms or the issuance of a firearm or explosives license or permit
when a NICS background check reveals that the purchaser is a known or
suspected terrorist and the Attorney General reasonably believes that
the person may use a firearm or explosives in connection with
terrorism. A related bill was introduced in the 111TH Congress and is
currently pending (H.R. 2159). Neither DOJ's proposed legislative
language nor the related bill include provisions for the development of
guidelines further delineating the circumstances under which the
Attorney General could exercise this authority. In October 2007, we
reported that agencies that use terrorist watch list records to screen
for potential terrorists use applicable laws or other guidelines as a
basis for determining what related actions to take, if any, such as the
criteria that are used for determining which subjects of watch list
records should be precluded from boarding an aircraft.[Footnote 5]
Further, Homeland Security Presidential Directive 11 requires that
terrorist watch list records be used in a manner that safeguards legal
rights, including freedoms, civil liberties, and information privacy
guaranteed by federal law.[Footnote 6] Guidelines delineating how the
Attorney General could use any new authority would help DOJ and its
component agencies (1) provide accountability and a basis for
monitoring to ensure that the intended goals for, and expected results
of, the screening are being achieved and (2) ensure that terrorist
watch list records are used in accordance with requirements outlined in
the Presidential directive. In response to our questions, DOJ was
noncommittal on whether it would develop guidelines if legislation
providing the Attorney General with discretionary authority to deny
firearms or explosives transactions involving subjects of terrorist
watch list records was enacted.
GAO is not making any recommendations to DOJ related to this report.
However, if Congress moves forward with legislation that provides the
Attorney General with discretionary authority to deny the transfer of a
firearm or the issuance of a firearm or explosives license or permit to
the subject of a terrorist watch list record, Congress should consider
including provisions that require the Attorney General to establish
guidelines delineating under what circumstances such authority could be
exercised. For additional information on a summary of the results of
our work, see slides 14 through 19.
DOJ did not comment on the findings or matter for congressional
consideration in this report. The FBI and ATF provided technical
comments, which have been incorporated where appropriate.
As arranged with your offices, unless you publicly announce its
contents earlier, we plan no further distribution of this report until
30 days after its issue date. At that time, we will send copies of this
report to the Attorney General and the Directors of the FBI and ATF,
appropriate congressional committees, and other interested parties.
This report will also be available at no charge on our website at
[hyperlink, http://www.gao.gov. If you or your staff have any questions
about this report, please contact me at (202) 512-8777 or
larencee@gao.gov. Contact points for our Offices of Congressional
Relations and Public Affairs may be found on the last page of this
report. Key contributors to this report were Eric Erdman, Assistant
Director; David Alexander, Christopher Currie, Geoffrey Hamilton, Linda
Miller, and Debra Sebastian.
Signed by:
Eileen R. Larence:
Director, Homeland Security and Justice Issues:
Enclosure:
[End of section]
Enclosure: Terrorist Watch List Screening (Briefing slides):
Terrorist Watch List Screening:
The FBI Has Taken Actions to Better Use Information From Firearms- and
Explosives-Related Background Checks For Counterterrorism Purposes, But
Guidelines Should Be Considered if Congress Moves Forward on Legislation
Expanding the Attorney General‘s Authority:
Briefing Overview:
* Introduction:
* Objectives, Scope, and Methodology:
* Summary:
* Background:
* Results:
• Conclusions:
* Matter for Congressional Consideration:
* Agency Comments and Our Evaluation:
Introduction:
Ensuring that firearms and explosives do not get into the hands of
those intent on doing harm to U.S. interests is of great importance to
the nation‘s security.
The mission of the Federal Bureau of Investigation‘s (FBI) section that
operates the National Instant Criminal Background Check System (NICS
Section) is to ensure national security and public safety by providing
the timely determination of a person‘s eligibility to possess firearms
or explosives in accordance with federal law.
Under the Brady Handgun Violence Prevention Act (Brady Act) and
implementing regulations, since November 1998, the FBI and designated
state and local criminal justice agencies have, in general, been
required to use NICS to conduct background checks on individuals before
federal firearms licensees (gun dealers) may transfer any firearm to an
unlicensed individual.[Footnote 7]
Pursuant to the Safe Explosives Act, in general, any person seeking to
(1) engage in the business of importing, manufacturing, or dealing in
explosive materials or (2) transport, ship, cause to be transported, or
receive explosive materials must obtain a federal license or permit,
respectively, issued by the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF).[Footnote 8] To assist ATF, in February 2003, the NICS
Section began conducting background checks on individuals seeking to
obtain an explosives license or permit.
Persons prohibited by federal law from possessing firearms or
explosives include convicted felons, fugitives, unlawful controlled
substance users and persons addicted to a controlled substance, and
aliens (any individual not a citizen or national of the United States)
who are illegally or unlawfully in the United States, among others.
[Footnote 9]
One of the databases searched by NICS is the FBI‘s National Crime
Information Center database,[Footnote 10] which contains criminal
justice information (e.g., names of persons who have outstanding
warrants) and also includes applicable records from the Terrorist
Screening Center‘s (TSC) consolidated terrorist watch list.[Footnote
11]
The terrorist watch list records are maintained in the National Crime
Information Center‘s Violent Gang and Terrorist Organization File,
which was designed to provide law enforcement personnel with the means
to exchange information on members of violent gangs and terrorist
organizations.
Homeland Security Presidential Directive 11 (HSPD-11) requires that
terrorist-related screening”including the use of terrorist watch list
records”be done in a manner that safeguards legal rights, including
freedoms, civil liberties, and information privacy guaranteed by
federal law.[Footnote 12]
According to the Department of Justice (DOJ), under current federal and
state law, there is no basis to automatically prohibit a person from
possessing a firearm or explosives because they appear on the terrorist
watch list. Rather, there must be a disqualifying factor pursuant to
federal or state law, such as a felony conviction or illegal
immigration status.
In February 2004, pursuant to a DOJ directive, the NICS Section began
delaying all firearm and explosives background checks involving
terrorist watch list records to give NICS personnel and FBI case agents
the chance to further research the transaction for prohibiting
information before responding to the initiator of the background check
as to whether the transaction may proceed. For example, the FBI could
have information not yet posted to the databases checked by NICS showing
the person is an alien illegally or unlawfully in the United States.
In January 2005, we reported that from February 2004 through June 2004,
a total of 44 firearm-related background checks handled by the FBI‘s
NICS Section and applicable state agencies resulted in valid matches
with terrorist watch list records.[Footnote 13] Of this total, 35
transactions were allowed to proceed because the background
check revealed no prohibiting information and 6 transactions were
denied based on existing federal or state firearms prohibiting
criteria.[Footnote 14]
To assist the FBI in better managing NICS background checks involving
terrorist watch list records, we made two recommendations:
* To ensure that the background checks initiated by state agencies are
consistently and properly handled, we recommended that the Attorney
General either implement more frequent monitoring by the FBI of
applicable state agencies or have the FBI centrally manage all
terrorism-related NICS background checks.
* To support the FBI‘s counterterrorism efforts, we recommended that the
Attorney General clarify procedures to ensure that the maximum amount of
allowable information from these background checks is consistently
shared with counterterrorism officials.
DOJ agreed with our recommendations and subsequently formed a working
group to consider the issues raised by our report. In June 2005, the
working group recommended that the FBI make four changes, which are
summarized below:
* Establish a database (outside the NICS Section) to track subjects of
terrorist watch list records who acquire or seek to acquire a firearm
and appoint an analyst to review this information and develop
appropriate intelligence.
* Have the NICS Section process all NICS transactions involving
terrorist watch list records, rather than allowing states to process
the transactions.
* Clarify that the NICS Section will routinely request the prospective
purchaser‘s residence address from the gun dealer and share it with FBI
counterterrorism officials while attempting to verify the match and
obtain related information.
* Encourage FBI agents to coordinate with ATF to obtain, among other
things, the make, models, and quantities of firearms purchased.
The DOJ working group concluded that the best course of action to
address concerns about the ability of terrorists to obtain a firearm or
a firearm or explosives license or permit would be to introduce
legislation that would allow the Attorney General discretion to deny
such transactions, if necessary.
The status of DOJ‘s actions to address our recommendations and those of
the working group are discussed later in this report.
Objectives, Scope, and Methodology:
You requested that we update our January 2005 report. Thus, this
briefing addresses the following questions:
* How many NICS background checks have resulted in valid matches with
terrorist watch list records, what were the results of these checks,
and what are the NICS Section‘s current procedures for handling these
checks?
* Since January 2005, to what extent has the FBI taken action to collect
information from NICS background checks involving terrorist watch list
records and share this information with counterterrorism officials to
support investigations and other counterterrorism activities?
We reviewed relevant laws, regulations, policies, and procedures
related to NICS background checks on individuals attempting to purchase
firearms or obtain a firearm or explosives license or permit.
We obtained data on NICS background checks that resulted in valid
matches with terrorist watch list records during the period February
2004 (when NICS started checking against terrorist watch list records)
through February 2009. We discussed the sources of data with FBI
officials as well as the policies and procedures that FBI officials
used to maintain the integrity of the data, and determined that the
data were sufficiently reliable for the purposes of this review.
We interviewed officials from FBI components”the NICS Section,
Counterterrorism Division (including the National Threat Center Section
and its Terrorist Screening Operations Unit and Threat Review Unit),
and TSC”to discuss policies and procedures for conducting NICS
background checks involving terrorist watch list records and collecting
and sharing related information. We attempted to contact members of the
DOJ working group that was established to consider issues raised by our
January 2005 report, but DOJ officials told us they were no longer at
the department.
We conducted this performance audit from August 2008 through May 2009 in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
Summary:
Number of Terrorism-Related Checks and NICS Section Procedures for
Handling Them:
From February 2004 through February 2009, FBI data show that 963 NICS
background checks resulted in valid matches with terrorist watch list
records; approximately 90 percent of these transactions were allowed to
proceed because the checks revealed no prohibiting information”such as
felony convictions, illegal immigrant status, or other disqualifying
factors”and about 10 percent of the transactions were denied.
In response to our January 2005 recommendation and a related DOJ
working group recommendation, the NICS Section began processing all
background checks involving terrorist watch list records in July 2005”
including those generated via state operations”to ensure consistency in
handling and to ensure that relevant FBI components and field agents
are contacted during the resolution of the checks. Otherwise, since
January 2005, there have been no substantive changes in NICS Section
policies or procedures with respect to handling background checks
involving terrorist watch list records or maintaining background check
information, according to FBI officials.
FBI Actions to Use Information From NICS Checks For Counterterrorism
Purposes:
In response to our January 2005 recommendation and related DOJ working
group recommendations, in April 2005, the FBI issued guidance to its
field offices on the availability and use of information collected as a
result of NICS background checks involving terrorist watch list records
to help support investigations and other counterterrorism efforts. For
example, to support counterterrorism efforts:
* The guidance discussed the process for FBI field offices to work with
the NICS Section and ATF to obtain additional information about the
prospective purchaser (e.g., residence address) and the transaction,
including the make, model, and serial number of any firearm purchased.
* The guidance noted that any information that FBI field offices obtain
related to these NICS checks can be shared with other counterterrorism
and law enforcement agencies.
In line with a DOJ working group recommendation, the FBI is utilizing a
TSC database to capture information related to each NICS background
check that involves the subject of a terrorist watch list record.
* According to FBI Counterterrorism Division officials, information
related to each transaction is analyzed to develop appropriate
intelligence and support ongoing counterterrorism investigations.
* In October 2008, the Counterterrorism Division conducted a proactive
analysis of information in the TSC database to identify, for example,
geographic trends related to attempted firearm purchases by subjects of
terrorist watch list records. The Counterterrorism Division plans to
begin quarterly reporting of this type of analysis beginning in May
2009.
In April 2007, DOJ provided legislative language to Congress that would
provide the Attorney General with discretionary authority to deny the
transfer of firearms or the issuance of a firearm or explosives license
or permit when a NICS background check reveals that the purchaser is a
known or suspected terrorist and the Attorney General reasonably
believes that the person may use a firearm or explosives in connection
with terrorism.
A related bill was introduced in the 111th Congress and is currently
pending.
* Neither DOJ‘s proposed legislative language nor the related bill
include provisions for the development of guidelines further
delineating the circumstances under which the Attorney General could
exercise this authority.
* Agencies that use terrorist watch list records to screen for
potential terrorists use applicable laws or other guidelines as a basis
for determining what related actions to take, if any. For example,
specific criteria are used for determining which subjects of watch list
records should be precluded from boarding an aircraft.
Guidelines delineating how the Attorney General could use any new
authority to deny NICS transactions involving subjects of terrorist
watch list records would help DOJ and its component agencies:
* Provide accountability and a basis for monitoring to ensure that the
intended goals for, and expected results of, the screening are being
achieved.
* Ensure that terrorist watch list records are used in a manner that
safeguards privacy and civil liberties protections, in accordance with
requirements outlined in HSPD-11.
In response to our questions, DOJ was noncommittal on whether it would
develop guidelines if legislation providing the Attorney General with
discretionary authority to deny firearms or explosives transactions
involving subjects of terrorist watch list records was enacted.
GAO is not making any recommendations to DOJ related to this report.
However, if Congress moves forward on legislation that provides the
Attorney General with discretionary authority to deny the transfer of a
firearm or the issuance of a firearm or explosives license or permit to
the subject of a terrorist watch list record, Congress should consider
including provisions that require the Attorney General to establish
guidelines delineating under what circumstances such authority could be
exercised.
DOJ did not provide comments on the findings or matter for congressional
consideration in this report. The FBI and ATF provided technical
comments, which have been incorporated in this report where
appropriate.
Background:
TSC”an organization administered by the FBI”was established in 2003 to
develop and maintain the U.S. government‘s consolidated terrorist
screening database and to provide for the use of watch list records
during security-related screening processes.
* In general, individuals who are ’reasonably suspected“ of having
possible links to terrorism”in addition to individuals with known links”
are to be nominated for inclusion on the consolidated watch list by the
FBI and other members of the intelligence community.[Footnote 15]
* One of the stated policy objectives for the government‘s consolidated
watch list is the coordinated collection of information for use in
investigations and threat analyses.
According to DOJ, the purpose of NICS background checks is to determine
the lawfulness of proposed gun transfers or licenses or applicant
eligibility for an explosives permit or license.
NICS Section personnel are to provide all available information to the
FBI‘s Counterterrorism Division in order to determine if there is a
valid match between the prospective purchaser or permit applicant and a
terrorist watch list record. Also, NICS Section personnel seek from the
FBI‘s Counterterrorism Division potentially prohibiting information
that is not maintained in the databases searched by NICS.
The FBI can benefit, however, from receiving this information because
it may be useful to a counterterrorism or counterintelligence
investigation.
Objective 1: Number of NICS Checks Involving Terrorist Watch List
Records and Procedures for Handling These Checks:
According to NICS Section data, during the period February 2004 through
February 2009, a total of 963 NICS background checks resulted in valid
matches with terrorist watch list records.[Footnote 16]
* Of these transactions, approximately 90 percent (865 of 963) were
allowed to proceed because the checks revealed no prohibiting
information”that is, the persons who were subjects of terrorist watch
list records were deemed eligible to possess or receive a firearm or
explosives. The NICS Section does not know if a firearm was actually
transferred or if a firearm or explosives license or permit was
granted.
* One of the 963 transactions involved an explosives background check,
which was allowed to proceed because the check revealed no prohibiting
information.
* Of the NICS background checks that resulted in valid matches with
terrorist watch list records, about 10 percent (98 of 963) of the
transactions were denied based on the existence of prohibiting
information. Available information provided by the NICS Section shows
that the reasons for denials included:
- felony conviction,
- illegal alien status,
- fugitive from justice, and,
- unlawful use of, or addicted to, a controlled substance.
* All of the 98 transactions that were denied involved subjects of
terrorist watch list records who were determined to be ineligible to
possess or receive a firearm based on federal or state firearm
prohibitions. There were no denied transactions involving explosives
background checks.
In response to our January 2005 recommendation and the related DOJ
working group recommendation, DOJ determined that all NICS background
checks involving terrorist watch list records must be handled centrally
by staff of the NICS Section”rather than allowing states to process
them”to help ensure consistency in handling and to help ensure that
relevant FBI components and field agents are contacted during the
resolution of the checks to see if they have information that would
prohibit the transaction.
Other than having the NICS Section assume responsibility for handling
all NICS transactions involving terrorist watch list records, since
January 2005, there have been no substantive changes in NICS Section
policies or procedures with respect to handling background checks
involving terrorist watch list records, according to FBI officials.
In July 2005, the FBI‘s NICS Section began processing all background
checks involving terrorist watch list records.
* If a potential match is identified, the NICS Section is to delay the
transaction and coordinate with TSC to verify the match.[Footnote 17]
To determine if the match is valid, TSC compares identifiers provided
by the prospective purchaser”such as name and date of birth”with
available identifiers in watch list records.
* For verified matches, NICS Section personnel are to contact the FBI‘s
Counterterrorism Division to determine if FBI case agents have
information that may disqualify the individual from possessing a
firearm or explosives”such as information that has been recently
acquired but not yet available in the automated databases searched by
NICS.
* To assist the FBI‘s Counterterrorism Division in searching for
prohibiting information, NICS Section personnel are to share all
available information that is captured in the NICS database with the
case agent”name, date of birth, place of birth, height, weight, sex,
race, country of citizenship, alien or admission number, type of
firearm involved in the check (handgun, long gun, or other), and any
exceptions to disqualifying factors claimed by an alien.
* If a gun dealer is not notified of disqualifying information within 3
business days, the transaction may proceed and the gun dealer may
lawfully transfer a firearm to the subject of a terrorist watch list
record. The 3-business-day provision is not applicable to the issuance
of a license or permit for firearms or explosives.
According to FBI officials, several of the 98 firearm transactions
involving terrorist watch list records that were denied by the NICS
Section were denied based on information provided by FBI case agents
(e.g., the individual was an alien illegally or unlawfully in the
United States), but specific data on the number of such denials were
not maintained.
According to NICS Section officials, since GAO issued its report in
January 2005, there have been no changes in NICS regulations, policies,
or procedures for maintaining records of NICS background checks
involving terrorist watch list records. Under current regulations,
policies, or procedures:
* All personal identifying information in the NICS database related to
firearms transfers that are allowed to proceed is to be destroyed
within 24 hours after the FBI advises the gun dealer that the transfer
may proceed. The 24-hour destruction requirement does not apply to
permit checks. Rather, information related to permit checks is retained
in the NICS database for up to 90 days after the background check is
initiated.
* Nonidentifying information related to each proceeded background check
(e.g., NICS transaction number, date of the transaction, and gun dealer
identification number) is retained for up to 90 days. By retaining such
information, the NICS Section can notify ATF when new information
reveals that an individual who was approved to purchase a firearm
should have been denied. ATF can then initiate any firearm retrievals
that may be necessary.
- The nonidentifying information is retained for all NICS transactions
that are allowed to proceed, including transactions involving subjects
of terrorist watch list records.
- According to NICS Section officials, the NICS Section has made no
firearm-retrieval referrals to ATF related to transactions involving
subjects of terrorist watch list records.
* If NICS Section personnel cannot make a final proceed or deny
determination within 3 business days, personal identifying information
and other details related to the transaction are retained until either
(1) the final determination is reached or (2) a period of no more than
90 days. This would include, for example, transactions involving a
terrorist watch list record in which NICS personnel did not receive a
response from FBI agents within 3 business days.
* Under provisions in NICS regulations, personal identifying
information and other details related to denied firearms transactions
are retained indefinitely.
Objective 2: FBI Actions to Use Information From NICS Checks Involving
Terrorist Watch List Records For Counterterrorism Purposes:
In response to our recommendation and the related DOJ working group‘s
recommendations, in April 2005, FBI headquarters provided guidance to
its field offices on the types of information available to a field
office and the process for obtaining that information if a known or
suspected terrorist attempts to obtain a firearm from a gun dealer or a
firearm or explosives license or permit.[Footnote 18]
* Regarding gun purchases, the guidance notes the following:
- If requested by an FBI field office, NICS personnel have been
instructed to contact the gun dealer to obtain additional information,
such as the purchaser‘s residence address and the government-issued
photo identification used by the purchaser (e.g., a drivers license
number). However, gun dealers are not legally obligated under NICS
regulations to provide this information to NICS personnel for the
purpose of a background check.
- If the gun dealer refuses, FBI field offices are encouraged to
coordinate with ATF to obtain this information. ATF can also obtain a
copy of the form individuals must fill out to purchase firearms (ATF
Form 4473) and other information”such as the make, model, and serial
number of any firearm purchased”which may be useful to FBI
counterterrorism officials.
* Regarding a firearm or explosives permit, the FBI‘s April 2005
guidance notes the following:
- For state permits that are approved by ATF as alternative permits
that can be used to purchase firearms, if requested by an FBI field
office, NICS personnel have been instructed to contact the gun dealer
to obtain all information from the permit application.
- The use and dissemination of state permit information is governed by
state law. The FBI has advised state and local agencies that also issue
firearm or explosives permits to share all information with FBI field
personnel to the fullest extent allowable under state law.
* According to the FBI‘s April 2005 guidance, there are no provisions
in the Brady Act that place limitations on sharing NICS information
with law enforcement agencies when persons are determined to be
prohibited from possessing or receiving a firearm, and NICS information
on denied transactions can be and is routinely provided to ATF.
* FBI field offices may share any information obtained under procedures
in the April 2005 guidance with other law enforcement,
counterterrorism, or counterintelligence agencies, including non-FBI
members of an FBI Joint Terrorism Task Force.[Footnote 19]
In line with a DOJ working group recommendation, the FBI is utilizing a
TSC database”the ’Encounter Management Application“”to capture
information on attempted firearm purchases by subjects of terrorist
watch list records. According to FBI Counterterrorism Division
officials, each separate instance of an individual on the terrorist
watch list who acquires or seeks to acquire a firearm is analyzed to
develop appropriate intelligence and support ongoing counterterrorism
investigations.
In October 2008, the FBI‘s Counterterrorism Division conducted”for the
first time”a proactive analysis of the information related to NICS
background checks involving subjects of terrorist watch list records
that is captured in the TSC database. According to FBI Counterterrorism
Division officials, this analysis was conducted in support of
presidential inauguration activities and the identification of subjects
who could impact events.
* Through this analysis, the Counterterrorism Division identified
whether the NICS background checks involved subjects of domestic or
international counterterrorism investigations as well as where the
firearm purchases were attempted, among other things.
* Based on the value derived from conducting this analysis, the
Counterterrorism Division plans to conduct similar proactive analysis
and produce quarterly reports that summarize these analytical
activities beginning in May 2009.
The DOJ working group concluded that the best course of action to
address concerns about the ability of terrorists to obtain a firearm or
a firearm or explosives license or permit would be to introduce
legislation that would allow the Attorney General discretion to deny
such transactions, if necessary.
DOJ drafted and provided legislative language entitled ’Denying
Firearms and Explosives to Dangerous Terrorists Act of 2007“ to the
House and Senate in April 2007. Among other things, the draft proposal:
* Provides the Attorney General with discretionary authority to deny
the transfer of a firearm or the issuance of a firearm or explosives
license or permit when a background check reveals that the purchaser is
a known or suspected terrorist and the Attorney General reasonably
believes that the person may use a firearm or explosives in connection
with terrorism.
* Includes provisions designed to provide due process safeguards that
afford an affected person an opportunity to challenge a denial by the
Attorney General.
* Includes provisions designed to protect the sensitive national
security information upon which terrorist watch list records are based.
A related bill was introduced in the House of Representatives during
the 111th Congress and is currently pending.[Footnote 20]
Neither DOJ‘s proposed legislative language nor the related bill
include provisions for the development of guidelines further
delineating the circumstances under which the Attorney General could
exercise this authority.
Because individuals can be added to the terrorist watch list based on
’reasonable suspicion,“ the government has not used their inclusion on
the watch list to automatically deny certain actions, such as
automatically prohibiting an individual from entering the United States
or boarding an aircraft. Rather, when an agency identifies the subject
of a watch list record, agency officials are to assess the threat the
person poses to determine what action to take, if any, in accordance
with applicable laws or other guidelines.[Footnote 21] For example:
* The Immigration and Nationality Act establishes conditions under
which an alien may be deemed inadmissible to the United States. (See,
for example, 8 U.S.C. § 1182.)
* The White House Homeland Security Council has established criteria for
determining which subjects of terrorist watch list records are deemed
to be a threat to civil aviation or national security and therefore
should be precluded from boarding an aircraft.
Guidelines delineating how the Attorney General could use any new
authority to deny firearms or explosives transactions involving
subjects of terrorist watch list records would help DOJ and its
component agencies:
* Provide accountability and a basis for monitoring to ensure that the
intended goals for, and expected results of, the screening are being
achieved.
* Ensure that terrorist watch list records are used in a manner that
safeguards privacy and civil liberties protections, in accordance with
requirements outlined in HSPD-11.
In response to our questions, DOJ was noncommittal on whether it would
develop guidelines if legislation providing the Attorney General with
discretionary authority to deny firearms or explosives transactions
involving subjects of terrorist watch list records was enacted.
Conclusions:
The use of terrorist watch list records in agency screening processes
is an integral component of the U.S. government‘s counterterrorism
efforts. Providing the Attorney General with the flexibility to deny
firearm purchases or firearm or explosives licenses or permits to
subjects of terrorist watch list records when information suggests the
purchase could pose a threat to national security would help to address
concerns that such transactions cannot be denied now unless the subject
is otherwise prohibited by federal or state law. Nevertheless, it would
be important to consider the extent to which any new authorities to
deny firearm or explosives transactions should include guidelines on
the basis for making denials, which would help to ensure that terrorist
watch list records are used as intended and that privacy and civil
liberties protections are in place.
Matter for Congressional Consideration:
GAO is not making any recommendations to DOJ related to this report.
However, if Congress moves forward on legislation that provides the
Attorney General with discretionary authority to deny the transfer of a
firearm or the issuance of a firearm or explosives license or permit to
the subject of a terrorist watch list record, Congress should consider
including provisions that require the Attorney General to establish
guidelines delineating under what circumstances such authority could be
exercised.
Agency Comments and Our Evaluation:
We provided a draft of this report to DOJ for review and comment.
DOJ did not provide comments on the findings or matter for congressional
consideration in this report.
On May 11, 2009, DOJ provided technical comments from the FBI and ATF,
which have been incorporated in this report where appropriate.
[End of section]
Footnotes:
[1] Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107
Stat. 1536 (1993).
[2] See Safe Explosives Act, Pub. L. No. 107-296, 116 Stat. 2135, 2280
(2002) (Title XI, Subtitle C of the Homeland Security Act of 2002), as
amended.
[3] The FBI's Terrorist Screening Center maintains the U.S.
government's terrorist watch list, which contains information about
individuals "known or appropriately suspected to be or have been
engaged in conduct constituting, in preparation for, in aid of, or
related to terrorism." Applicable records from the watch list are
searched during NICS background checks.
[4] [hyperlink, http://www.gao.gov/products/GAO-05-127].
[5] See GAO, Terrorist Watch List Screening, Opportunities Exist to
Enhance Management Oversight, Reduce Vulnerabilities in Agency
Screening Processes, and Expand Use of the List, [hyperlink,
http://www.gao.gov/products/GAO-08-110] (Washington, D.C.: Oct. 11,
2007).
[6] The White House, Homeland Security Presidential Directive/HSPD-11,
Subject: Comprehensive Terrorist-Related Screening Procedures
(Washington, D.C.: Aug. 27, 2004).
[7] Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107
Stat. 1536 (1993).
[8] Safe Explosives Act, Pub. L. No. 107-296, 116 Stat. 2135, 2280
(2002) (Title XI, Subtitle C of the Homeland Security Act of
2002), as amended.
[9] See 18 U.S.C. § 922(g), § 922(n), § 841(i).
[10] The FBI‘s National Crime Information Center is a computerized
database of documented criminal justice information.
[11] TSC‘s consolidated terrorist watch list contains information about
individuals "known or appropriately suspected to be or have been
engaged in conduct constituting, in preparation for, in aid of, or
related to terrorism."
[12] The White House, Homeland Security Presidential Directive/HSPD-11,
Subject: Comprehensive Terrorist-Related Screening Procedures
(Washington, D.C.: Aug. 27, 2004).
[13] GAO, Gun Control and Terrorism, FBI Could Better Manage Firearm-
Related Background Checks Involving Terrorist Watch List Records,
[hyperlink, http://www.gao.gov/products/GAO-05-127] (Washington, D.C.:
Jan. 19, 2005).
[14] Of the remaining three transactions, one was pending a final
proceed or denied determination, and the results of two were
not available.
[15] See GAO, Terrorist Watch List Screening, Opportunities Exist to
Enhance Management Oversight, Reduce Vulnerabilities in Agency
Screening Processes, and Expand Use of the List, [hyperlink,
http://www.gao.gov/products/GAO-08-110] (Washington, D.C.: Oct. 11,
2007).
[16] NICS transactions involving subjects of terrorist watch list
records that were processed by state agencies before July 17, 2005,
may not be included in the data maintained by the NICS Section if the
state processing the transaction did not provide the final outcome of
the transaction to the NICS Section. Effective July 17, 2005, the NICS
Section assumed the processing of all NICS transactions involving
terrorist watch list records to ensure consistency in processing and
the collection of related data.
[17] Under the Brady Act, the NICS Section can delay the transfer of a
firearm for 3 business days. After the third business day, the gun
dealer is not prohibited from transferring the firearm, although
federal law does not compel the gun dealer to transfer.
[18] The Gun Control Act of 1968, as amended, gives the Attorney
General the authority to inspect or examine the records of a gun dealer
without a warrant ’in the course of a reasonable inquiry during the
course of a criminal investigation of a person or persons other than
the [federal firearms] licensee.“ See 18 U.S.C. § 923(g)(1)(B)(i).
[19] Joint Terrorism Task Forces are teams of state and local law
enforcement officials, FBI agents, and other federal agents and
personnel whose mission is to investigate and prevent acts of
terrorism.
[20] See H.R. 2159.
[21] See [hyperlink, http://www.gao.gov/products/GAO-08-110].
[End of section]
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