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. 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). 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.
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. 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. 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. Two of  the 865 transactions that were allowed to proceed involved explosives  background checks. 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. One of the 272 transactions  involved an explosives background check, which was allowed to proceed  because the check 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 1,228 times since NICS started  conducting these checks in February 2004, of which 1,119 (about 91  percent) of the transactions were allowed to proceed while 109 were  denied, as shown in table 1.
According to the FBI, the 1,228 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, the reasons for denials included felony conviction,  illegal alien status, under indictment, fugitive from justice, and mental  defective.
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. 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.

	FBI Has Taken Actions to Use Information from NICS Checks to Support Counterterrorism Efforts

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.
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.
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.
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. These reports are distributed via the  FBI’s Law Enforcement Online system. 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. 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. 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.
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. 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. 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.
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Summary:
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.