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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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