II 114th CONGRESS 2d Session S. 3069 IN THE SENATE OF THE UNITED STATES June 16, 2016 Mr. Toomey introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To prevent terrorists from obtaining firearms or explosives.

1. Fighting terrorism and upholding due process (a) Short title This section may be cited as the Fighting Terrorism and Upholding Due Process Act . (b) Preventing the transfer of a firearm and the issuance or maintenance of a firearms or explosives license or permit to dangerous terrorists Chapter 44 of title 18, United States Code, is amended by inserting after section 922 the following: 922A. Attorney General’s discretion to prohibit transfer of a firearm and deny or revoke a license or permit (a) Definitions In this section— (1) the term Foreign Intelligence Surveillance Court has the meaning given the term in section 701 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1881 ); (2) the term material support or resources shall include all actions prohibited by section 2339A; (3) the term terrorism shall include international terrorism and domestic terrorism , as defined in section 2331; and (4) the term Terrorism Firearm Screening List means the list developed by the Attorney General under subsection (b)(4). (b) Development of terrorism firearm screening list (1) In general The Attorney General may develop a list of persons for whom the Attorney General determines, for each person, that— (A) there is probable cause to believe the person is or has been engaged in conduct constituting, in preparation for, in aid of, or in support of terrorism, or providing material support or resources for terrorism; and (B) there is reason to believe the person may use a firearm in connection with terrorism. (2) Requirement The Attorney General shall submit to the Foreign Intelligence Surveillance Court— (A) the list of persons developed under paragraph (1); and (B) the information and documents, in unredacted form, supporting the Attorney General’s determinations as to which persons are included on the list. (3) Determination Using the list, information, and documents submitted under paragraph (2), the Foreign Intelligence Surveillance Court shall determine, for each person on the list, whether— (A) there is probable cause to believe the person is or has been engaged in conduct constituting, in preparation for, in aid of, or in support of terrorism, or providing material support or resources for terrorism; and (B) there is reason to believe the person may use a firearm in connection with terrorism. (4) Consolidated list The Attorney General shall establish a list of persons whom the Foreign Intelligence Surveillance Court determines meet the criteria described in paragraph (3), to be known as the Terrorism Firearm Screening List . (c) Periodic updating and review of terrorism firearm screening list (1) Updates to the list The Attorney General may, after the development of the Terrorism Firearm Screening List, add additional persons to the Terrorism Firearm Screening List by following the procedures set forth in subsection (b) for each person to be added. (2) Periodic judicial review (A) In general Not later than 1 year after the date of enactment of this section, and once every year thereafter, the Attorney General shall submit to the Foreign Intelligence Surveillance Court the Terrorism Firearm Screening List. (B) Review The Foreign Intelligence Surveillance Court shall review the Terrorism Firearm Screening List submitted under subparagraph (A) to determine whether any person on the list should be removed by reason of no longer satisfying the requirements described in subsection (b)(3). (C) Production of information Upon request of the Foreign Intelligence Surveillance Court, the Attorney General shall provide to the Court any information the Court determines necessary to conduct the review required under subparagraph (B). (D) Removal of names In conducting a review under subparagraph (B), if the Foreign Intelligence Surveillance Court determines that a person should be removed from the Terrorism Firearm Screening List because the person no longer satisfies the requirements described in subsection (b)(3), the Attorney General shall remove such person from the Terrorism Firearm Screening List. (d) Authority To prohibit firearm transfers and To deny or revoke licenses and permits In accordance with subsection (e), the Attorney General may prohibit a person who is listed on the Terrorism Firearm Screening List in accordance with subsections (b) and (c), or for whom there is probable cause to believe the person is or has been engaged in conduct constituting, in preparation for, in aid of, or in support of terrorism, or providing material support or resources for terrorism, and there is reason to believe the person may use a firearm in connection with terrorism, from— (1) participating in the transfer of a firearm under section 922; (2) receiving or maintaining a firearms license under section 923; and (3) receiving or maintaining a license or permit for explosive materials under section 843. (e) Procedure for prohibiting firearm transfer or denying or revoking a license or permit (1) Procedure with regard to persons included on the terrorism firearm screening list If the Attorney General prohibits the transfer of a firearm or denies or revokes a license or permit for firearms or explosive materials under subsection (d) for a person who is listed on the Terrorism Firearm Screening List— (A) the Attorney General shall— (i) not later than 7 days after the prohibition, denial, or revocation, file a petition to sustain the prohibition, denial, or revocation in the district court of the United States for the district in which— (I) the firearm transfer was attempted; (II) the licensee or permit holder is located; or (III) the applicant for a license or permit is located; and (ii) submit to the district court of the United States in which the petition described in clause (i) is filed, the evidence the Attorney General relied upon in determining that the person should be added to Terrorism Firearm Screening List and any exculpatory evidence that the Attorney General possesses or has access to; (B) the person to whom the prohibition, denial, or revocation applies, shall be entitled to— (i) a hearing at which the person may be represented by counsel and a final judgment by the district court of the United States not later than 60 days after the date on which the attempted transfer of a firearm occurred or the Attorney General denied or revoked a license or permit for firearms or explosive materials; and (ii) in the case of an appeal of the decision of the district court of the United States, a decision by the reviewing court not later than 90 days after the date on which the district court of the United States issues the decision; and (C) the district court of the United States in which the petition described in clause (i) is filed— (i) shall allow the Attorney General, for information the United States has determined would likely compromise national security, to submit summaries and redacted versions of documents; (ii) shall review any summaries and redacted versions of documents to ensure that the person to whom the prohibition, denial, or revocation applies is receiving fair and accurate representations of the underlying information and documents; (iii) shall ensure that any summaries and redacted versions of documents accepted into evidence are fair and accurate representations of the underlying information and documents; (iv) shall provide copies of any summaries and redacted versions of documents to the person to whom the prohibition, denial, or revocation applies; (v) shall not consider the full, undisclosed information or documents in deciding whether to sustain the Attorney General’s decision to include the person on the Terrorism Firearm Screening List; and (vi) shall issue an order that the Attorney General’s action prohibiting the transfer of a firearm or denying or revoking a license or permit for a firearm or explosive material was not authorized unless the Attorney General demonstrates— (I) there is probable cause to believe the person is or has been engaged in conduct constituting, in preparation for, in aid of, or in support of terrorism, or providing material support or resources for terrorism; and (II) there is reason to believe the person may use a firearm in connection with terrorism. (D) Relief If a person who was subject to a prohibition, denial, or revocation described in this paragraph prevails in a proceeding under this paragraph, including on appeal, the person shall be entitled to all costs, including reasonable attorney’s fees, and the Attorney General shall immediately remove the individual from the Terrorism Firearm Screening List. (2) Procedure with regard to persons not on the terrorism firearm screening list If the Attorney General prohibits the transfer of a firearm or revocation of a license or permit for firearms or explosive materials under subsection (d) for a person who is not listed on the Terrorism Firearm Screening List, the following procedures shall apply: (A) Temporary ex parte order prohibiting transfer or sustaining revocation (i) In general The Attorney General— (I) may deny the firearm transfer or revoke the license or permit for the period described in section 922(t)(1)(B)(ii); (II) shall file an emergency petition to temporarily prohibit the attempted transfer or sustain the revocation of a license or permit for 7 additional days, with such petition being filed with the Foreign Intelligence Surveillance Court or a Federal district court (provided that if the Attorney General files with a Federal district court, the Attorney General can and will comply with all the requirements of this paragraph, including the requirement to submit to the court the information and documents, in unredacted form, that support the Attorney General’s petition); and (III) as part of the petition described in subclause (II), shall submit to the court the information and documents, in unredacted form, that support the Attorney General’s petition. (ii) Court requirements The court shall deny an emergency petition filed by the Attorney General under clause (i) unless the Attorney General demonstrates— (I) there is probable cause to believe the person is or has been engaged in conduct constituting, in preparation for, in aid of, or in support of terrorism, or providing material support or resources for terrorism; and (II) there is reason to believe such person may use a firearm in connection with terrorism. (iii) Transfer allowed If an order is not issued under this paragraph within the period described in section 922(t)(1)(B)(ii), the firearm transfer may proceed or the revocation of the license or permit shall be canceled. (B) Adversarial court proceeding to obtain a final order prohibiting transfer of a firearm or revoking a license or permit (i) In general If the Attorney General wishes to extend an order that is issued under subparagraph (A)(ii)(II)— (I) the Attorney General shall— (aa) within 7 days after the order was granted under subparagraph (A)(ii)(II), file a petition for a final order prohibiting the transfer of a firearm or sustaining the revocation of a license or permit, with such petition being filed in the district court of the United States in which the firearm transfer was attempted or the licensee or permit holder is located; and (bb) submit to the district court of the United States in which the petition described in item (aa) is filed, the evidence supporting the Attorney General’s petition and any exculpatory evidence that the Attorney General possesses or has access to; (II) the person whose attempted firearm transfer was blocked shall be entitled to— (aa) a hearing at which the person may be represented by counsel and a final judgment by the district court of the United States not later than 60 days after the date on which the attempted transfer of a firearm occurred or Attorney General revoked a license or permit for firearms or explosive materials; and (bb) in the case of an appeal of the decision of the district court of the United States, a decision by the reviewing court not later than 90 days after the date on which the district court of the United States issues the decision; and (III) the district court of the United States in which the petition described in subclause (I) was filed— (aa) shall allow the Attorney General, for information the United States has determined would likely compromise national security, to submit summaries and redacted versions of documents; (bb) shall review any summaries and redacted versions of documents to ensure that the person to whom the prohibition or revocation applies is receiving fair and accurate representations of the underlying information and documents; (cc) shall ensure that any summaries and redacted versions of documents accepted into evidence are fair and accurate representations of the underlying information and documents; (dd) shall provide copies of any summaries and redacted versions of documents to the person to whom the prohibition or revocation applies; (ee) shall not consider the full, undisclosed information or documents in deciding whether to sustain the Attorney General’s prohibition or revocation; and (ff) shall issue an order rejecting the Attorney General’s petition unless the Attorney General demonstrates there is probable cause to believe the person is or has been engaged in conduct constituting, in preparation for, in aid of, or in support of terrorism, or providing material support or resources for terrorism, and there is reason to believe such person may use a firearm in connection with terrorism. (ii) Effect The temporary, ex parte order issued under paragraph (A) shall remain in effect until the proceeding under this paragraph is resolved. (iii) Relief If a person who was prohibited from participating in the transfer of a firearm or had a license or permit for firearms or explosive materials revoked prevails in a proceeding under clause (i), including on appeal, the person shall be entitled to all costs, including reasonable attorney’s fees, and the Attorney General shall immediately remove the individual from the Terrorism Firearm Screening List. (iv) Addition to terrorism firearm screening list If the Attorney General prevails in a proceeding under clause (i), including on appeal, the Attorney General may add the person to the Terrorism Firearm Screening List. . (c) Transparency Not later than 60 days after the date of the enactment of this Act, and quarterly thereafter, the Attorney General shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives a report providing the following information: (1) The number of persons added to the Terrorism Firearm Screening List established under section 922A of title 18, United States Code, as added by this Act, during the reporting period. (2) The number of persons whose names the Attorney General submitted to the Foreign Intelligence Surveillance Court pursuant to section 922A(b)(2) of title 18, United States Code, as added by this Act, during the reporting period. (3) The number of persons described in paragraph (2) whom the Foreign Intelligence Surveillance Court determined, pursuant to section 922A(b)(2) of title 18, United States Code, as added by this Act, that there was not— (A) probable cause to believe the person is or has been engaged in conduct constituting, in preparation for, in aid of, or in support of terrorism, or providing material support or resources for terrorism; or (B) reason to believe the person may use a firearm in connection with terrorism. (d) Technical and conforming amendments (1) Table of sections The table of sections for chapter 44 of title 18, United States Code, is amended by inserting after the item relating to section 922 the following: 922A. Attorney General’s discretion to prohibit transfer of a firearm and deny or revoke a license or permit. . (2) Technical amendments Section 922(t) of title 18, United States Code, is amended— (A) in paragraph (1)(B), by striking clause (ii) and inserting the following: (ii) 3 business days (meaning a day on which State offices are open) have elapsed since the licensee contacted the system; and (iii) the system has not notified the licensee that— (I) the receipt of a firearm by such other person would violate subsection (g) or (n) of this section or State law; or (II) that the transfer has been prohibited pursuant to section 922A of this title; ; (B) in paragraph (2), in the matter preceding subparagraph (A), by inserting , and the transfer has not been prohibited pursuant to section 922A of this title after or State law ; (C) in paragraph (3)— (i) in subparagraph (A)(i)— (I) in subclause (I), by striking and at the end; and (II) by adding at the end the following: (III) was issued after a check of the system established pursuant to paragraph (1); ; and (ii) in subparagraph (C)— (I) in clause (ii), by striking and at the end; (II) in clause (iii), by striking the period and inserting ; and ; and (III) by adding at the end the following: (iv) the State issuing the permit agrees to deny the permit application if the applicant is included on the Terrorism Firearm Screening List established by section 922A of this title or to revoke the permit if a court order is entered pursuant to section 922A(e) of this title. ; (D) in paragraph (4), by inserting , or that the person is prohibited from participating in a firearm transfer pursuant to section 922A of this title after or State law ; and (E) in paragraph (5), by inserting , or that the person is prohibited from participating in a firearm transfer pursuant to section 922A of this title after or State law . (3) Unlawful sale or disposition of firearm based upon attorney general discretionary denial Section 922(d) of title 18, United States Code, is amended— (A) in paragraph (8), by striking or at the end; (B) in paragraph (9), by striking the period at the end and inserting ; or ; and (C) by adding at the end the following: (10) is prohibited from participating in a firearm transfer pursuant to section 922A of this title. . (4) Attorney General discretionary denial as prohibitor Section 922(g) of title 18, United States Code, is amended— (A) in paragraph (8), by striking or at the end; (B) in paragraph (9), by striking the comma at the end and inserting ; or ; and (C) by inserting after paragraph (9) the following: (10) who has received actual notice of an order entered by a court pursuant to section 922A(e) of this title, . (5) Attorney General discretionary denial of Federal firearms licenses Section 923(d) of title 18, United States Code, is amended in paragraph (1)— (A) in subparagraph (F), by striking and at the end of clause (iii); (B) in subparagraph (G), by striking device). and inserting device); and ; and (C) by adding at the end the following: (H) the applicant is not on the Terrorism Firearm Screening List established by section 922A of this title or subject to an order entered by a court pursuant to section 922A(e) of this title. . (6) Discretionary revocation of Federal firearms licenses Section 923(e) of title 18, United States Code, is amended— (A) by inserting (1) after (e) ; (B) by striking revoke any license and inserting: revoke— (A) any license; ; (C) by striking . The Attorney General may, after notice and opportunity for hearing, revoke the license and inserting the following: (B) the license; and ; and (D) by striking . The Secretary’s action and inserting “; or (C) any license issued under this section if the Attorney General determines that the holder of such license (including any responsible person) is on the Terrorism Firearm Screening List established by section 922A of this title. (2) The Attorney General’s action . (7) Provision of grounds underlying ineligibility determination by the National Instant Criminal Background Check System Section 103 of the Brady Handgun Violence Prevention Act ( 18 U.S.C. 922 note) is amended— (A) in subsection (f), by striking date of the request and inserting date of the request, provided that if the individual is ineligible by virtue of being included on the Terrorism Firearm Screening List established under section 922A of title 18, United States Code or being subject to a court order under section 922A(e) of title 18, United States Code, the system shall state only that the individual is barred by section 922A of title 18, United States Code. ; and (B) in subsection (g), in the first sentence, by inserting or that the individual is prohibited from engaging in a firearm transfer pursuant to section 922A of title 18, United States Code, after or State law, . (8) Unlawful distribution of explosives based upon attorney general discretionary denial Section 842(d) of title 18, United States Code, is amended— (A) in paragraph (9), by striking the period and inserting ; or ; and (B) by adding at the end the following: (10) who has received actual notice of an order entered by a court pursuant to section 922A(e) of this title. . (9) Attorney General discretionary denial as prohibitor Section 842(i) of title 18, United States Code, is amended— (A) in paragraph (7), by inserting ; or at the end; and (B) by inserting after paragraph (7) the following: (8) who has received actual notice of an order entered by a court pursuant to section 922A(e) of this title, . (10) Attorney General discretionary denial of Federal explosives licenses and permits Section 843(b) of title 18, United States Code, is amended— (A) in paragraph (6) by striking and ; (B) in paragraph (7) by striking valid. and inserting valid; and ; and (C) by adding at the end the following: (8) the applicant is not disqualified pursuant to section 922A of this title. . (11) Attorney General discretionary revocation of Federal explosives licenses and permits Section 843(d) of title 18, United States Code, is amended by inserting after is included on the Terrorism Firearm Screening List established by section 922A of this title or subject to an order entered by a district court of the United States pursuant to section 922A(e) of this title, after this chapter, . (12) Attorney General’s ability to withhold information in explosives license and permit denial and revocation suits Section 843(e) of title 18, United States Code, is amended in paragraph (1), by inserting after the first sentence the following: However, if the denial or revocation is based upon the person being disqualified pursuant to section 922A of this title any information which the Attorney General relied on for adding the person to the Terrorism Firearm Screening List established by section 922A of this title or obtaining a court order under section 922A(e) of this title, this determination may be withheld from the petitioner if the Attorney General determines that disclosure of the information would likely compromise national security. . (13) Ability to withhold information in communications to employers Section 843(h)(2) of title 18, United States Code, is amended— (A) in subparagraph (A), by inserting or in subsection (j) of this section (on grounds of terrorism) after section 842(i) ; and (B) in subparagraph (B)— (i) in the matter preceding clause (i), by inserting or in subsection (j) of this section, after section 842(i), ; and (ii) in clause (ii), by inserting , except that any information that the Attorney General relied on for adding the person to the Terrorism Firearm Screening List established by section 922A of this title or obtaining a court order under section 922A(e) of this title may be withheld if the Attorney General concludes that disclosure of the information would likely compromise national security after determination .