Justice and Law Enforcement:

Firearm and Explosives Background Checks Involving Terrorist Watch List Records

GAO-09-125R: Published: May 21, 2009. Publicly Released: Jun 22, 2009.

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This 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.

Matter for Congressional Consideration

  1. Status: Open

    Comments: In January 2013, Congress introduced the "Denying Firearms and Explosives to Dangerous Criminals Act of 2013" (S. 34 and H.R. 720) that would provide 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. Consistent with our recommendation, the act requires the Attorney General to issue guidelines describing the circumstances under which such discretionary authority could be used. As of May 16, 2013, the bill had not moved past the committee stage.

    Matter: 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 may wish to consider including provisions that require the Attorney General to establish guidelines delineating under what circumstances such authority could be exercised.

 

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