Terrorist Watchlist Screening
FBI Has Enhanced Its Use of Information from Firearm and Explosives Background Checks to Support Counterterrorism Efforts Gao ID: GAO-10-703T May 5, 2010Membership in a terrorist organization does not prohibit a person from possessing firearms or explosives under current federal law. However, for homeland security and other purposes, the FBI is notified when a firearm or explosives background check involves an individual on the terrorist watchlist. This statement addresses (1) how many checks have resulted in matches with the terrorist watchlist, (2) how the FBI uses information from these checks for counterterrorism purposes, and (3) pending legislation that would give the Attorney General authority to deny certain checks. GAO's testimony is based on products issued in January 2005 and May 2009 and selected updates in March and April 2010. For these updates, GAO reviewed policies and other documentation and interviewed officials at FBI components involved with terrorism-related background checks.
From February 2004 through February 2010, FBI data show that individuals on the terrorist watchlist were involved in firearm or explosives background checks 1,225 times; 1,116 (about 91 percent) of these transactions were allowed to proceed because no prohibiting information was found--such as felony convictions, illegal immigrant status, or other disqualifying factors--and 109 of the transactions were denied. In response to a recommendation in GAO's January 2005 report, the FBI began processing all background checks involving the terrorist watchlist in July 2005--including those generated via state operations--to ensure consistency in handling and ensure that relevant FBI components and field agents are contacted during the resolution of the checks so they can search for prohibiting information. Based on another recommendation in GAO's 2005 report, the FBI has taken actions to collect and analyze information from these background checks for counterterrorism purposes. For example, in April 2005, the FBI issued guidance to its field offices on the availability and use of information collected as a result of firearm and explosives background checks involving the terrorist watchlist. The guidance discusses the process for FBI field offices to work with FBI personnel who conduct the checks and the Bureau of Alcohol, Tobacco, Firearms and Explosives to obtain information about the checks, such as the purchaser's residence address and the make, model, and serial number of any firearm purchased. The guidance states that any information that FBI field offices obtain related to these background checks can be shared with other counterterrorism and law enforcement agencies. The FBI is also preparing monthly reports on these checks that are disseminated throughout the FBI to support counterterrorism efforts. In April 2007, the Department of Justice proposed legislative language to Congress that would provide the Attorney General with discretionary authority to deny the transfer of firearms or explosives to known or suspected "dangerous terrorists." At the time of GAO's May 2009 report, neither the department's proposed legislative language nor related proposed legislation included provisions for the development of guidelines further delineating the circumstances under which the Attorney General could exercise this authority. GAO suggested that Congress consider including a provision in any relevant legislation that would require the Attorney General to establish such guidelines; and this provision was included in a subsequent legislative proposal. If Congress gives the Attorney General authority to deny firearms or explosives based on terrorist watchlist concerns, guidelines for making such denials would help to provide accountability for ensuring that the expected results of the background checks are being achieved. Guidelines would also help ensure that the watchlist is used in a manner that safeguards legal rights, including freedoms, civil liberties, and information privacy guaranteed by federal law and that its use is consistent with other screening processes. For example, criteria have been developed for determining when an individual should be denied the boarding of an aircraft.
GAO-10-703T, Terrorist Watchlist Screening: FBI Has Enhanced Its Use of Information from Firearm and Explosives Background Checks to Support Counterterrorism Efforts
This is the accessible text file for GAO report number GAO-10-703T
entitled 'Terrorist Watchlist Screening: FBI Has Enhanced Its Use of
Information from Firearm and Explosives Background Checks to Support
Counterterrorism Efforts' which was released on May 5, 2010.
This text file was formatted by the U.S. Government Accountability
Office (GAO) to be accessible to users with visual impairments, as
part of a longer term project to improve GAO products' accessibility.
Every attempt has been made to maintain the structural and data
integrity of the original printed product. Accessibility features,
such as text descriptions of tables, consecutively numbered footnotes
placed at the end of the file, and the text of agency comment letters,
are provided but may not exactly duplicate the presentation or format
of the printed version. The portable document format (PDF) file is an
exact electronic replica of the printed version. We welcome your
feedback. Please E-mail your comments regarding the contents or
accessibility features of this document to Webmaster@gao.gov.
This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed
in its entirety without further permission from GAO. Because this work
may contain copyrighted images or other material, permission from the
copyright holder may be necessary if you wish to reproduce this
material separately.
Testimony:
Before the Senate Committee on Homeland Security and Governmental
Affairs, U.S. Senate:
United States Government Accountability Office:
GAO:
For Release on Delivery:
Expected at 10:00 a.m. EDT:
Wednesday, May 5, 2010:
Terrorist Watchlist Screening:
FBI Has Enhanced Its Use of Information from Firearm and Explosives
Background Checks to Support Counterterrorism Efforts:
Statement of Eileen R. Larence:
Director, Homeland Security and Justice:
GAO-10-703T:
GAO Highlights:
Highlights of GAO-10-703T, a testimony before the Committee on
Homeland Security and Governmental Affairs, U.S. Senate.
Why GAO Did This Study:
Membership in a terrorist organization does not prohibit a person from
possessing firearms or explosives under current federal law. However,
for homeland security and other purposes, the FBI is notified when a
firearm or explosives background check involves an individual on the
terrorist watchlist. This statement addresses (1) how many checks have
resulted in matches with the terrorist watchlist, (2) how the FBI uses
information from these checks for counterterrorism purposes, and (3)
pending legislation that would give the Attorney General authority to
deny certain checks. GAO‘s testimony is based on products issued in
January 2005 and May 2009 and selected updates in March and April
2010. For these updates, GAO reviewed policies and other documentation
and interviewed officials at FBI components involved with terrorism-
related background checks.
What GAO Found:
From February 2004 through February 2010, FBI data show that
individuals on the terrorist watchlist were involved in firearm or
explosives background checks 1,225 times; 1,116 (about 91 percent) of
these transactions were allowed to proceed because no prohibiting
information was found”such as felony convictions, illegal immigrant
status, or other disqualifying factors”and 109 of the transactions
were denied. In response to a recommendation in GAO‘s January 2005
report, the FBI began processing all background checks involving the
terrorist watchlist in July 2005”including those generated via state
operations”to ensure consistency in handling and ensure that relevant
FBI components and field agents are contacted during the resolution of
the checks so they can search for prohibiting information.
Based on another recommendation in GAO‘s 2005 report, the FBI has
taken actions to collect and analyze information from these background
checks for counterterrorism purposes. For example, in April 2005, the
FBI issued guidance to its field offices on the availability and use
of information collected as a result of firearm and explosives
background checks involving the terrorist watchlist. The guidance
discusses the process for FBI field offices to work with FBI personnel
who conduct the checks and the Bureau of Alcohol, Tobacco, Firearms
and Explosives to obtain information about the checks, such as the
purchaser‘s residence address and the make, model, and serial number
of any firearm purchased. The guidance states that any information
that FBI field offices obtain related to these background checks can
be shared with other counterterrorism and law enforcement agencies.
The FBI is also preparing monthly reports on these checks that are
disseminated throughout the FBI to support counterterrorism efforts.
In April 2007, the Department of Justice proposed legislative language
to Congress that would provide the Attorney General with discretionary
authority to deny the transfer of firearms or explosives to known or
suspected ’dangerous terrorists.“ At the time of GAO‘s May 2009
report, neither the department‘s proposed legislative language nor
related proposed legislation included provisions for the development
of guidelines further delineating the circumstances under which the
Attorney General could exercise this authority. GAO suggested that
Congress consider including a provision in any relevant legislation
that would require the Attorney General to establish such guidelines;
and this provision was included in a subsequent legislative proposal.
If Congress gives the Attorney General authority to deny firearms or
explosives based on terrorist watchlist concerns, guidelines for
making such denials would help to provide accountability for ensuring
that the expected results of the background checks are being achieved.
Guidelines would also help ensure that the watchlist is used in a
manner that safeguards legal rights, including freedoms, civil
liberties, and information privacy guaranteed by federal law and that
its use is consistent with other screening processes. For example,
criteria have been developed for determining when an individual should
be denied the boarding of an aircraft.
What GAO Recommends:
GAO is not making new recommendations, but has made prior
recommendations to the Attorney General to help ensure that background
checks involving individuals on the terrorist watchlist are properly
handled and that allowable information from these checks is shared
with counterterrorism officials, which the FBI has implemented. GAO
also suggested that Congress consider adding a provision to any future
legislation that would require the Attorney General to define when
firearms or explosives could be denied, which has been included in a
subsequent bill.
View [hyperlink, http://www.gao.gov/products/GAO-10-703T] or key
components. For more information, contact Eileen Larence at (202) 512-
6510 or larencee@gao.gov.
[End of section]
Mr. Chairman and Members of the Committee:
I appreciate the opportunity to discuss the government's use of the
terrorist watchlist to screen individuals who are attempting to
purchase a firearm or obtain a firearm or explosives license or
permit, and related actions to determine if the person poses a threat
to homeland security. Under current federal law, there is no basis to
automatically prohibit a person from possessing firearms or explosives
because the individual appears on the terrorist watchlist. Rather,
there must be a disqualifying factor (i.e., prohibiting information)
under federal or state law, such as a felony conviction or illegal
immigration status. Questions about how well the government is using
and sharing terrorism-related information in order to identify
potential threats that individuals may pose were also raised as a
result of the November 2009 shootings at Fort Hood, Texas, and the
December 25, 2009, attempted airline bombing.
In January 2005, we reported that from February through June 2004,
individuals on the terrorist watchlist were allowed to proceed with
firearm transactions 35 times because the background checks revealed
no prohibiting information.[Footnote 1] As a result of that review, we
identified opportunities for the Federal Bureau of Investigation (FBI)
to ensure that background checks initiated by state agencies are
consistently and properly handled and that the maximum amount of
allowable information from background checks is consistently shared
with counterterrorism officials. We made recommendations aimed at
addressing these issues, which the FBI implemented. We updated this
work in a May 2009 report, which included both firearm and explosives
background checks.[Footnote 2] The number of transactions involving
individuals on the watchlist that were allowed to proceed had
increased to 865 through February 2009. We also discussed the
potential implications of then pending proposed legislation that would
give the Attorney General discretionary authority to deny such
transactions if he reasonably believes that the person may use a
firearm or explosives in connection with terrorism. We suggested that
in any relevant legislation, Congress consider requiring the Attorney
General to establish guidelines on how he would exercise this
discretion--delineating under what circumstances transactions could be
denied--and this provision was included in a subsequent legislative
proposal.
My testimony today updates our prior work and discusses (1) the number
of times firearm and explosives background checks have been a match to
the terrorist watchlist and related outcomes, (2) actions the FBI has
taken to use information from these background checks to support
investigations and other counterterrorism activities, and (3) pending
legislation that would give the Attorney General authority to deny
firearms and explosives transactions based on terrorist watchlist
concerns and related issues.
My statements are based on reports GAO issued in January 2005 and May
2009.[Footnote 3] In conducting our prior work, we reviewed
documentation obtained from and interviewed officials at FBI
components and state agencies with responsibilities for conducting
background checks on individuals attempting to purchase firearms or
obtain a firearm or explosives license or permit. Our previously
published reports were conducted in accordance with generally accepted
government auditing standards and contain additional details on the
scope and methodology for those reviews. In addition, my testimony
contains updated information on firearms and explosives background
checks involving individuals on the terrorist watchlist. For the
updates, we reviewed documentation obtained from and interviewed
officials at relevant FBI components to discuss efforts to collect,
analyze, and share information related to these checks with
counterterrorism officials. We also obtained data on firearm and
explosives background checks that resulted in valid matches with
individuals on the terrorist watchlist from February 2004 (when the
FBI first started checking against terrorist watchlist records)
through February 2010. 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
conducted our updated work in March and April 2010 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 based
on our audit objectives.
Background:
The mission of the FBI section that operates the National Instant
Criminal Background Check System (NICS Section) is to ensure national
security and public safety by providing the accurate and timely
determination of a person's eligibility to possess firearms and
explosives in accordance with federal law. Under the Brady Handgun
Violence Prevention Act and implementing regulations, the FBI and
designated state and local criminal justice agencies use NICS to
conduct checks on individuals before federal firearms licensees (gun
dealers) may transfer any firearm to an unlicensed individual.
[Footnote 4] Also, 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 5] To
assist ATF, in February 2003, the FBI began conducting NICS background
checks on individuals seeking to obtain a federal 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 6]
One of the databases that NICS searches is the FBI's National Crime
Information Center (NCIC) database, 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 screening database.[Footnote 7] 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 terrorist watchlist
by the FBI and other members of the intelligence community. One of the
stated policy objectives of the government's consolidated watchlist is
the coordinated collection of information for use in investigations
and threat analyses. Terrorist watchlist records in the NCIC database
are maintained in the Known or Suspected Terrorist File (formerly the
Violent Gang and Terrorist Organization File), which was designed to
provide law enforcement personnel with the means to exchange
information on known or suspected terrorists.
About 90 Percent of NICS Transactions Involving Individuals on the
Terrorist Watchlist Have Been Allowed to Proceed Because There Was No
Legal Basis Identified to Deny the Transactions:
In May 2009, we reported that from February 2004 through February
2009, a total of 963 NICS background checks resulted in valid matches
with individuals on the terrorist watchlist.[Footnote 8] Of these
transactions, approximately 90 percent (865 of 963) were allowed to
proceed because the checks revealed no prohibiting information, such
as felony convictions, illegal immigrant status, or other
disqualifying factors. One of the 865 transactions that was allowed to
proceed involved an explosives background check. The FBI does not know
how often a firearm was actually transferred or if a firearm or
explosives license or permit was granted, because gun dealers and
explosives dealers are required to maintain but not report this
information to the NICS Section. About 10 percent (98 of 963) of the
transactions were denied based on the existence of prohibiting
information. No transactions involving explosives background checks
were denied.
For today's hearing, we obtained updated statistics from the FBI
through February 2010. Specifically, from March 2009 through February
2010, FBI data show that 272 NICS background checks resulted in valid
matches with individuals on the terrorist watchlist.[Footnote 9] Three
of the 272 transactions involved explosives background checks, which
were allowed to proceed because the checks revealed no disqualifying
factors under the Safe Explosives Act. According to FBI officials,
several of the 272 background checks resulted in matches to watchlist
records that--in addition to being in the FBI's Known or Suspected
Terrorist File--were on the Transportation Security Administration's
"No Fly" list. In general, persons on the No Fly list are deemed to be
a threat to civil aviation or national security and therefore should
be precluded from boarding an aircraft. According to FBI officials,
all of these transactions were allowed to proceed because the
background checks revealed no prohibiting information under current
law.
In total, individuals on the terrorist watchlist have been involved in
firearm and explosives background checks 1,225 times since NICS
started conducting these checks in February 2004, of which 1,116
(about 91 percent) of the transactions were allowed to proceed while
109 were denied, as shown in table 1.[Footnote 10]
Table 1: Number of NICS Transactions Involving Individuals on the
Terrorist Watchlist, February 2004 through February 2010:
Calendar year: 2004 (beginning in February);
Valid matches: 48;
Allowed to proceed: 43;
Denied: 5.
Calendar year: 2005;
Valid matches: 149;
Allowed to proceed: 141;
Denied: 8.
Calendar year: 2006;
Valid matches: 177;
Allowed to proceed: 151;
Denied: 26.
Calendar year: 2007;
Valid matches: 287;
Allowed to proceed: 259;
Denied: 28.
Calendar year: 2008;
Valid matches: 246;
Allowed to proceed: 228;
Denied: 18.
Calendar year: 2009;
Valid matches: 271;
Allowed to proceed: 249;
Denied: 22.
Calendar year: 2010 (through February);
Valid matches: 47;
Allowed to proceed: 45;
Denied: 2.
Calendar year: Total;
Valid matches: 1,225;
Allowed to proceed: 1,116;
Denied: 109.
Source: FBI.
[End of table]
According to the FBI, the 1,225 NICS transactions with valid matches
against the terrorist watchlist involved about 650 unique individuals,
of which about 450 were involved in multiple transactions and 6 were
involved in 10 or more transactions.
Based on our previous work, the NICS Section started to catalog the
reasons why NICS transactions involving individuals on the terrorist
watchlist were denied. According to the NICS Section, from April 2009
through February 2010, reasons for denials included felony conviction,
under indictment, fugitive from justice, mental defective, and illegal
or unlawful alien.
In October 2007, we reported that screening agencies generally do not
check against all records in TSC's consolidated terrorist watchlist
because screening against certain records (1) may not be needed to
support the respective agency's mission, (2) may not be possible due
to the requirements of computer programs used to check individuals
against watchlist records, or (3) may not be operationally feasible.
[Footnote 10] Rather, each day, TSC exports applicable records from
the consolidated watchlist to federal government databases that
agencies use to screen individuals for mission-related concerns. We
raised questions about the extent to which not screening against TSC's
entire consolidated watchlist during NICS background checks posed a
security vulnerability. According to TSC officials, not all records in
the consolidated watchlist are used during NICS background checks. The
officials explained that in order for terrorist information to be
exported to NCIC's Known or Suspected Terrorist File, the biographic
information associated with a record must contain sufficient
identifying data so that a person being screened can be matched to or
disassociated from an individual on the watchlist. The officials noted
that since not all records in TSC's consolidated watchlist contain
this level of biographic information required for this type of
screening, not all records from the watchlist can be used for NICS
background checks. According to TSC officials, the majority of records
that do not contain sufficient identifying data are related to foreign
nationals who would not be prospective purchasers of firearms or
explosives within the United States and therefore would not be subject
to NICS checks. We are continuing to review this issue as part of our
ongoing review of the terrorist watchlist.
The FBI Has Taken Additional Actions to Use Information Obtained from
NICS Background Checks to Support Investigations and Other
Counterterrorism Activities:
The FBI has taken additional actions to use information obtained from
NICS background checks to support investigations and other
counterterrorism activities. These actions include providing guidance
to FBI case agents on how to obtain information related to NICS checks
and efforts to analyze and share information on individuals matched to
the terrorist watchlist.
FBI Has Provided Guidance to Case Agents:
The FBI has provided guidance to its case agents on how to obtain
information on individuals matched to the terrorist watchlist during
NICS background checks. According to FBI Counterterrorism Division
officials, TSC notifies the division when a NICS background check is
matched to an individual on the terrorist watchlist. After verifying
the accuracy of the match, the Counterterrorism Division will advise
the FBI case agent that the individual attempted to purchase a firearm
or obtain a firearm or explosives license or permit. The division will
also provide the agent with contact information for the NICS Section
and advise the agent to contact the section to answer additional
questions. According to Counterterrorism Division officials, the case
agent is also advised to contact ATF to obtain a copy of the form the
individual used to initiate the transaction.
For verified matches, NICS Section personnel are 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 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. According to
FBI officials, these procedures have been successful in enabling the
NICS Section to deny several gun transactions involving individuals on
the terrorist watchlist based on disqualifying factors under current
law. The FBI did not maintain specific data on the number of such
denials.[Footnote 11]
In response to a recommendation made in our January 2005 report, FBI
headquarters provided guidance to its field offices in April 2005 on
the types of additional 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. Regarding gun purchases, the guidance
notes that if requested by an FBI field office, NICS personnel have
been instructed to contact the gun dealer to obtain additional
information about the prospective purchaser--such as the purchaser's
residence address and the government-issued photo identification used
by the purchaser (e.g., drivers license)--and the transaction,
including the make, model, and serial number of any firearm purchased.
According to the guidance, gun dealers are not legally obligated under
either NICS or ATF regulations to provide this additional information
to NICS personnel. If the gun dealer refuses, the guidance notes that
FBI field offices are encouraged to coordinate with ATF to obtain this
information. ATF can obtain a copy of the form individuals must fill
out to purchase firearms (ATF Form 4473), which contains additional
information that may be useful to FBI counterterrorism officials.
[Footnote 12]
Regarding a firearm or explosives permit, the FBI's April 2005
guidance also addresses state permits that are approved by ATF as
alternative permits that can be used to purchase firearms.
Specifically, 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. Further, the guidance notes that the use
and dissemination of state permit information is governed by state
law, and that 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 guidance, any information that FBI field offices
obtain related to NICS background checks can be shared with other law
enforcement, counterterrorism, or counterintelligence agencies,
including members of an FBI Joint Terrorism Task Force that are from
other federal or state law enforcement agencies.[Footnote 13]
In general, under current regulations, all personal identifying
information in the NICS database related to firearms transfers that
are allowed to proceed (e.g., name and date of birth) is to be
destroyed within 24 hours after the FBI advises the gun dealer that
the transfer may proceed. Nonidentifying information related to each
background check that is allowed to proceed (e.g., NICS transaction
number, date of the transaction, and gun dealer identification number)
is retained for up to 90 days. By retaining this 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.
According to NICS Section officials, the section has made no firearm-
retrieval referrals to ATF related to transactions involving
individuals on the terrorist watchlist to date. Under provisions in
NICS regulations, personal identifying information and other details
related to denied transactions are retained indefinitely. The 24-hour
destruction requirement does not apply to permit checks. Rather,
information related to these checks is retained in the NICS database
for up to 90 days after the background check is initiated.
FBI is Analyzing and Sharing Information from NICS Checks:
The FBI is analyzing and sharing information on individuals matched to
the terrorist watchlist to support investigations and other
counterterrorism activities. In our May 2009 report, we noted that the
FBI is utilizing a TSC database to capture information on individuals
who attempted to purchase a firearm and were a match to the watchlist.
Specifically, the FBI began analyzing each separate instance to
develop intelligence and support ongoing counterterrorism
investigations. Further, we reported that 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 individuals on the terrorist watchlist that is captured in
the TSC database. This analysis was conducted to identify individuals
who could potentially impact presidential inauguration activities.
Based on the value derived from conducting this analysis, the
Counterterrorism Division decided to conduct similar analysis and
produce quarterly reports that summarize these analytical activities
beginning in May 2009.
In updating our work, we found that the FBI's Counterterrorism
Division is now issuing these analytic reports on a monthly basis.
According to division officials, the reports contain an analysis of
all NICS background checks during the month that involve individuals
on the terrorist watchlist. The officials noted that the individuals
discussed in the reports range from those who are somewhat of a
concern to those who represent a significant threat. The reports are
classified and distributed internally to various components within the
FBI, including all FBI field offices and Joint Terrorist Task Forces.
The officials stated that these reports have played a key role in a
number of FBI counterterrorism investigations. According to
Counterterrorism Division officials, the names of individuals
discussed in the reports are shared with other members of the
intelligence community for situational awareness and follow-on
analytical activity.
TSC also generates reports that cover all instances of screening
agencies coming in contact with an individual on the terrorist
watchlist, including those related to NICS transactions. TSC provides
the reports to numerous entities, including FBI components, other
federal agencies, and state and local information fusion
centers.[Footnote 14] These reports are distributed via the FBI's Law
Enforcement Online system.[Footnote 15] At the time of our updated
review, TSC was exploring the possibility of electronically
communicating this information to the intelligence community as well.
According to officials from the FBI's Counterterrorism Division, for
investigative purposes, FBI and other counterterrorism officials are
generally allowed to collect, retain, and share information on
individuals on the watchlist who attempt to purchase firearms or
explosives.
If the Attorney General is Given Statutory Authority to Deny
Transactions, Guidelines Would Help to Ensure Accountability and Civil
Liberties Protections:
In our May 2009 report, we noted that the Department of Justice (DOJ)
provided legislative language to Congress in April 2007 that would
have given the Attorney General discretionary authority to deny the
transfer of firearms or the issuance of a firearm or explosives
license or permit under certain conditions. Specifically, such
transactions could be denied when a background check on an individual
reveals that the person is a known or suspected terrorist and the
Attorney General reasonably believes that the person may use the
firearm or explosives in connection with terrorism. The legislative
language also provided due process safeguards that would afford an
affected person an opportunity to challenge an Attorney General denial.
At the time of our 2009 report, neither DOJ's proposed legislative
language nor then pending related legislation included provisions for
the development of guidelines further delineating the circumstances
under which the Attorney General could exercise this authority.
[Footnote 16] We suggested that Congress consider including a
provision in any relevant legislation to require that the Attorney
General establish such guidelines, and this provision was included in
a subsequent legislative proposal.[Footnote 17] Such a provision 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 background checks are being achieved. Guidelines would
also help to ensure compliance with Homeland Security Presidential
Directive 11, which requires that terrorist-related screening--
including use of the terrorist watchlist--be done in a manner that
safeguards legal rights, including freedoms, civil liberties, and
information privacy guaranteed by federal law.[Footnote 18]
Furthermore, establishing such guidelines would be consistent with the
development of standards, criteria, and examples governing nominations
to, and the use of, the watchlist for other screening purposes.
Because individuals are nominated to the terrorist watchlist based on
a "reasonable suspicion" standard, the government generally has not
used their inclusion on the watchlist 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 an individual on the terrorist watchlist, 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.
For example, the Immigration and Nationality Act, as amended,
establishes conditions under which an alien may be deemed inadmissible
to the United States.[Footnote 19] Also, the former White House
Homeland Security Council established criteria for determining which
individuals on the terrorist watchlist are deemed to be a threat to
civil aviation or national security and, therefore, should be
precluded from boarding an aircraft. Subsequent to the December 25,
2009, attempted terrorist attack, the President tasked the FBI and TSC
to work with other relevant departments and agencies--including the
Department of Homeland Security, the Department of State, and the
Central Intelligence Agency--to develop recommendations on whether
adjustments are needed to the watchlisting nominations guidance,
including the No-Fly criteria.[Footnote 20] These efforts are ongoing.
At the time of our May 2009 report, 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 individuals on the terrorist watchlist was
enacted. Subsequent to that report, Senator Lautenberg introduced S.
1317 that, among other things, would require DOJ to develop such
guidelines. We continue to maintain that guidelines should be a part
of any statutory or administrative initiative governing the use of the
terrorist watchlist for firearms or explosives transactions.
Mr. Chairman, this concludes my statement. I would be pleased to
respond to any questions that you or other Members of the Committee
may have.
Contacts and Acknowledgments:
For additional information on this statement, please contact Eileen
Larence at (202) 512-6510 or larencee@gao.gov. In addition, Eric
Erdman, Assistant Director; Jeffrey DeMarco, and Geoffrey Hamilton
made key contributions to this statement. Contact points for our
offices of Congressional Relations and Public Affairs may be found on
the last page of this statement.
[End of section]
Footnotes:
[1] See 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).
[2] See GAO, Firearm and Explosives Background Checks Involving
Terrorist Watch List Records, [hyperlink,
http://www.gao.gov/products/GAO-09-125R] (Washington, D.C.: May 21,
2009).
[3] [hyperlink, http://www.gao.gov/products/GAO-05-127] and
[hyperlink, http://www.gao.gov/products/GAO-09-125R].
[4] Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107
Stat. 1536 (1993).
[5] 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.
[6] See 18 U.S.C. § 922(g), § 842(i).
[7] 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 watchlist
records during security-related screening processes. Specifically, the
database 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."
[8] [hyperlink, http://www.gao.gov/products/GAO-09-125R].
[9] According to FBI data, there were approximately 14 million NICS
backgrounds checks during this 12-month period.
[10] We could not reconcile with NICS Section officials why the 1,228
total matches differed from the combined total from our May 2009 report
(963) and recent update (272).
[11] See GAO, Terrorist Watchlist 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).
[12] Our prior reports contain additional details on NICS procedures
for handling firearm and explosives background checks involving the
terrorist watchlist. See [hyperlink,
http://www.gao.gov/products/GAO-05-127] and [hyperlink,
http://www.gao.gov/products/GAO-09-125R].
[13] In general, under federal law, while gun dealers are required to
maintain certain records of firearms transactions, they "shall not be
required to submit to the Attorney General reports and information
with respect to such records and the contents thereof, except as
expressly required." See 18 U.S.C. § 923(g)(1)(A). Such records may be
inspected or examined under certain circumstances upon issuance of a
warrant and without a warrant in certain specified circumstances such
as "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).
[14] 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.
[15] In general, fusion centers are collaborative efforts of two or
more agencies that provide resources, expertise, and information to
the center with the goal of maximizing their ability to detect,
prevent, investigate, and respond to criminal and terrorist activity.
[16] The FBI's Law Enforcement Online is an official U.S. government
system for use only by authorized members of the law enforcement,
criminal justice, and public safety community. Information presented
in this system is considered sensitive but not classified and is for
official law enforcement, criminal justice, and public safety use only.
[17] See H.R. 2159.
[18] See S. 1317.
[19] The White House, Homeland Security Presidential Directive/HSPD-
11, Subject: Comprehensive Terrorist-Related Screening Procedures
(Washington, D.C.: Aug. 27, 2004).
[20] See, for example, 8 U.S.C. § 1182.
[21] The White House, Summary of the White House Review of the
December 25, 2009, Attempted Terrorist Attack (Washington, D.C.: Jan.
7, 2010).
[End of section]
GAO's Mission:
The Government Accountability Office, the audit, evaluation and
investigative arm of Congress, exists to support Congress in meeting
its constitutional responsibilities and to help improve the performance
and accountability of the federal government for the American people.
GAO examines the use of public funds; evaluates federal programs and
policies; and provides analyses, recommendations, and other assistance
to help Congress make informed oversight, policy, and funding
decisions. GAO's commitment to good government is reflected in its core
values of accountability, integrity, and reliability.
Obtaining Copies of GAO Reports and Testimony:
The fastest and easiest way to obtain copies of GAO documents at no
cost is through GAO's Web site [hyperlink, http://www.gao.gov]. Each
weekday, GAO posts newly released reports, testimony, and
correspondence on its Web site. To have GAO e-mail you a list of newly
posted products every afternoon, go to [hyperlink, http://www.gao.gov]
and select "E-mail Updates."
Order by Phone:
The price of each GAO publication reflects GAO‘s actual cost of
production and distribution and depends on the number of pages in the
publication and whether the publication is printed in color or black and
white. Pricing and ordering information is posted on GAO‘s Web site,
[hyperlink, http://www.gao.gov/ordering.htm].
Place orders by calling (202) 512-6000, toll free (866) 801-7077, or
TDD (202) 512-2537.
Orders may be paid for using American Express, Discover Card,
MasterCard, Visa, check, or money order. Call for additional
information.
To Report Fraud, Waste, and Abuse in Federal Programs:
Contact:
Web site: [hyperlink, http://www.gao.gov/fraudnet/fraudnet.htm]:
E-mail: fraudnet@gao.gov:
Automated answering system: (800) 424-5454 or (202) 512-7470:
Congressional Relations:
Ralph Dawn, Managing Director, dawnr@gao.gov:
(202) 512-4400:
U.S. Government Accountability Office:
441 G Street NW, Room 7125:
Washington, D.C. 20548:
Public Affairs:
Chuck Young, Managing Director, youngc1@gao.gov:
(202) 512-4800:
U.S. Government Accountability Office:
441 G Street NW, Room 7149:
Washington, D.C. 20548:
