William J. Krouse
Specialist in Domestic Security and Crime Policy
The November 2009 shooting at Fort Hood, TX, renewed interest in terrorist watchlist screening and background checks for firearms through the National Instant Criminal Background Check System (NICS). Pursuant to the Brady Handgun Violence Prevention Act (P.L. 103-159), in November 1998 the Federal Bureau of Investigation (FBI) activated NICS for the purposes of determining an individual’s firearms transfer and possession eligibility whenever a private person seeks to acquire a firearm from a federally licensed gun dealer. Prior to February 2004, however, the FBI did not conduct terrorist watchlist queries as part of firearms background checks because being a known or suspected terrorist was not a disqualifying factor for firearms transfer and possession eligibility; nor is it today under current law.
Similarly, the April 15, 2013, Boston Marathon bombing could generate renewed interest in terrorist watchlist screening, because at least one of the alleged perpetrators was possibly entered into the National Counterterrorism Center’s (NCTC’s) Terrorist Identities Datamart Environment (TIDE). As a consequence, he was possibly watch-listed in the FBI-led Terrorist Screening Center’s Terrorist Screening Database—the U.S. government’s master watchlist of known and suspected terrorists. In addition, on April 18, 2013, both alleged perpetrators—Tamerlan and Dzhokhar Tsarnaev—are further alleged to have shot and killed a police officer, high-jacked an automobile and taken its owner hostage at gunpoint, and engaged in a subsequent shootout with police. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is tracing a pistol recovered at the scene of the shootout. If the watch-listed brother, Tamerlan, had acquired the pistol from a federally licensed gun dealer, it might have generated a terrorist watchlist hit through NICS. Critics could argue that watchlist hits through NICS, or border and aviation security screening systems, might have prompted federal investigators to scrutinize Tamerlan Tsarnaev’s travels and activities more closely prior to the bombing. As described in this report, moreover, a NICS-generated watchlist match might have prevented him from acquiring the pistol.
Following the September 11, 2001, terrorist attacks, the U.S. government reevaluated its terrorist screening procedures. As part of this process, the Department of Justice (DOJ) and FBI modified the Brady background check procedures and recalibrated NICS to query an additional file in the National Crime Information Center (NCIC) that included terrorist watchlist records. Since February 2004, information related to the subjects of NICS-generated terrorist watchlist matches have been passed on to the FBI Counterterrorism Division and special agents in the field, who are usually members of Joint Terrorism Task Forces (JTTFs). These FBI agents, in turn, verify the match between the individual and the watchlist record, and they check for information that would prohibit that individual, the prospective transferee, licensee, or permittee, from possessing firearms or explosives (e.g., illegal immigration or fugitive status).
While the modified NICS procedures initially generated little public opposition, those procedures called three possible issues into question. One, should terrorist watchlist checks be incorporated statutorily into the firearms- and explosives-related background check processes? Two, given certain statutory prohibitions related to prohibiting a firearms registry, should approved firearm transfer records be maintained on a temporary basis to determine whether persons of interest in counterterrorism investigations have obtained firearms? Three, should the Attorney General be granted authority to deny a firearms transfer based solely on a terrorist watchlist match? Since the 109th Congress, several related legislative proposals have been introduced. Several of those bills would have addressed the retention of firearms-related transfer records. Another proposal would
have prohibited persons watch-listed as terrorists for aviation security purposes on the “No Fly” list from firearms transfer or possession eligibility.
In the 110th Congress, Senator Frank Lautenberg and Representative Peter King introduced a bill based on a legislative proposal developed by DOJ that would have authorized the Attorney General to deny the transfer of firearms or the issuance of firearms (and explosives) licenses/permits to “dangerous terrorists” (S. 1237/H.R. 2074). In the 111th Congress, they reintroduced this bill (S. 1317/H.R. 2159), which supporters dubbed the “Terror Gap” proposal. In the 112th Congress, they introduced similar bills (S. 34 and H.R. 1506). And, in the 113th Congress they reintroduced their bills (S. 34 and H.R. 720) once more. When the Senate considered the Safe Communities, Safe Schools Act of 2013 (S. 649) in April 2013, Senator Lautenberg also filed an amendment (S.Amdt. 734) to that bill, which is nearly identical to S. 34. While the Senate leadership set S. 649 aside, if the Senate reconsiders this bill, it might also consider S.Amdt. 734. In addition, Representative James Moran has included similar provisions in the NRA Members’ Gun Safety Act of 2013 (H.R. 21).
The Terror Gap proposal raises several potential issues for Congress. One, should the Attorney General notify watch-listed individuals who have been deemed to be “dangerous terrorists” for the purposes of gun control? Two, what form of redress and/or remedy would be provided to individuals wrongfully denied a firearm transfer because they were misidentified, or improperly watch-listed, and then deemed to be a “dangerous terrorist”? Three, if enacted, would such a law draw unwanted attention to related terrorist screening procedures, possibly undermining the effectiveness of these procedures by making terrorists and other adversaries aware of them, and possibly setting a judicial review precedent for other terrorist watchlist screening processes?
Date of Report: May 1, 2013
Number of Pages: 32
Order Number: R42336
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