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Terrorist Watchlist Screening - FBI Has Enhanced Its Use of Information from Firearm and Explosives Background Checks to Support Counterterrorism Efforts, GAO, 2010

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United States Government Accountability Office

GAO

Testimony
Before the Senate Committee on
Homeland Security and Governmental
Affairs, U.S. Senate

For Release on Delivery
Expected at 10:00 a.m. EDT
Wednesday, May 5, 2010

TERRORIST WATCHLIST
SCREENING
FBI Has Enhanced Its Use
of Information from
Firearm and Explosives
Background Checks to
Support Counterterrorism
Efforts
Statement of Eileen R. Larence,
Director, Homeland Security and Justice

GAO-10-703T

May 5, 2010

TERRORIST WATCHLIST SCREENING
Accountability Integrity Reliability

Highlights
Highlights of GAO-10-703T, a testimony
before the Committee on Homeland
Security and Governmental Affairs, U.S.
Senate
T

FBI Has Enhanced Its Use of Information from
Firearm and Explosives Background Checks to
Support Counterterrorism Efforts

Why GAO Did This Study

What GAO Found

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.

From February 2004 through February 2010, FBI data show that individuals on
the terrorist watchlist were involved in firearm or explosives background
checks 1,228 times; 1,119 (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.

What GAO Recommends
GAO is not making new
recommendations, but has made
prior recommendations to the
Attorney General to help ensure
that background checks involving
individuals on the terrorist
watchlist are properly handled and
that allowable information from
these checks is shared with
counterterrorism officials, which
the FBI has implemented. GAO also
suggested that Congress consider
adding a provision to any future
legislation that would require the
Attorney General to define when
firearms or explosives could be
denied, which has been included in
a subsequent bill.
View GAO-10-703T or key components.
For more information, contact Eileen Larence
at (202) 512-6510 or larencee@gao.gov.

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.
United States Government Accountability Office

Mr. Chairman and Members of the Committee:
I appreciate the opportunity to discuss the government’s use of the
terrorist watchlist to screen individuals who are attempting to purchase a
firearm or obtain a firearm or explosives license or permit, and related
actions to determine if the person poses a threat to homeland security.
Under current federal law, there is no basis to automatically prohibit a
person from possessing firearms or explosives because the individual
appears on the terrorist watchlist. Rather, there must be a disqualifying
factor (i.e., prohibiting information) under federal or state law, such as a
felony conviction or illegal immigration status. Questions about how well
the government is using and sharing terrorism-related information in order
to identify potential threats that individuals may pose were also raised as a
result of the November 2009 shootings at Fort Hood, Texas, and the
December 25, 2009, attempted airline bombing.
In January 2005, we reported that from February through June 2004,
individuals on the terrorist watchlist were allowed to proceed with firearm
transactions 35 times because the background checks revealed no
prohibiting information. 1 As a result of that review, we identified
opportunities for the Federal Bureau of Investigation (FBI) to ensure that
background checks initiated by state agencies are consistently and
properly handled and that the maximum amount of allowable information
from background checks is consistently shared with counterterrorism
officials. We made recommendations aimed at addressing these issues,
which the FBI implemented. We updated this work in a May 2009 report,
which included both firearm and explosives background checks. 2 The
number of transactions involving individuals on the watchlist that were
allowed to proceed had increased to 865 through February 2009. We also
discussed the potential implications of then pending proposed legislation
that would give the Attorney General discretionary authority to deny such
transactions if he reasonably believes that the person may use a firearm or
explosives in connection with terrorism. We suggested that in any relevant
legislation, Congress consider requiring the Attorney General to establish
guidelines on how he would exercise this discretion—delineating under

1

See GAO, 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).

2

See GAO, Firearm and Explosives Background Checks Involving Terrorist Watch List
Records, GAO-09-125R (Washington, D.C.: May 21, 2009).

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GAO-10-703T

what circumstances transactions could be denied—and this provision was
included in a subsequent legislative proposal.
My testimony today updates our prior work and discusses (1) the number
of times firearm and explosives background checks have been a match to
the terrorist watchlist and related outcomes, (2) actions the FBI has taken
to use information from these background checks to support
investigations and other counterterrorism activities, and (3) pending
legislation that would give the Attorney General authority to deny firearms
and explosives transactions based on terrorist watchlist concerns and
related issues.
My statements are based on reports GAO issued in January 2005 and May
2009. 3 In conducting our prior work, we reviewed documentation obtained
from and interviewed officials at FBI components and state agencies with
responsibilities for conducting background checks on individuals
attempting to purchase firearms or obtain a firearm or explosives license
or permit. Our previously published reports were conducted in accordance
with generally accepted government auditing standards and contain
additional details on the scope and methodology for those reviews. In
addition, my testimony contains updated information on firearms and
explosives background checks involving individuals on the terrorist
watchlist. For the updates, we reviewed documentation obtained from and
interviewed officials at relevant FBI components to discuss efforts to
collect, analyze, and share information related to these checks with
counterterrorism officials. We also obtained data on firearm and
explosives background checks that resulted in valid matches with
individuals on the terrorist watchlist from February 2004 (when the FBI
first started checking against terrorist watchlist records) through February
2010. 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 conducted our updated work in March and
April 2010 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
based on our audit objectives.

3

GAO-05-127 and GAO-09-125R.

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GAO-10-703T

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. 4 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). 5 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. 6
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. 7 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

4

Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536 (1993).

5

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.

6

See 18 U.S.C. § 922(g), § 842(i).

7

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 watchlist records during security-related screening processes. Specifically,
the database 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.”

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GAO-10-703T

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. 8 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. 9 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

8

GAO-09-125R.

9

According to FBI data, there were approximately 14 million NICS backgrounds checks
during this 12-month period.

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GAO-10-703T

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. 10
Table 1: Number of NICS Transactions Involving Individuals on the Terrorist
Watchlist, February 2004 through February 2010
Calendar year

Valid matches

Allowed to proceed

Denied

48

43

5

2005

149

141

8

2006

179

153

26

2007

287

259

28

2008

246

228

18

2009

272

250

22

2004 (beginning in February)

2010 (through February)
Total

47

45

2

1,228

1,119

109

Source: FBI.

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

10

We could not reconcile with NICS Section officials why the 1,228 total matches differed
from the combined total from our May 2009 report (963) and recent update (272).

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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. 11 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.

11

See GAO, Terrorist Watchlist Screening: Opportunities Exist to Enhance Management
Oversight, Reduce Vulnerabilities in Agency Screening Processes, and Expand Use of the
List, GAO-08-110 (Washington, D.C.: Oct. 11, 2007).

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GAO-10-703T

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. 12
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

12
Our prior reports contain additional details on NICS procedures for handling firearm and
explosives background checks involving the terrorist watchlist. See GAO-05-127 and
GAO-09-125R.

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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. 13
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. 14
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.

13
In general, under federal law, while gun dealers are required to maintain certain records
of firearms transactions, they “shall not be required to submit to the Attorney General
reports and information with respect to such records and the contents thereof, except as
expressly required.” See 18 U.S.C. § 923(g)(1)(A). Such records may be inspected or
examined under certain circumstances upon issuance of a warrant and without a warrant
in certain specified circumstances such as “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).
14

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.

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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

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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. 15 These reports are distributed via the
FBI’s Law Enforcement Online system. 16 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

15
In general, fusion centers are collaborative efforts of two or more agencies that provide
resources, expertise, and information to the center with the goal of maximizing their ability
to detect, prevent, investigate, and respond to criminal and terrorist activity.
16

The FBI’s Law Enforcement Online is an official U.S. government system for use only by
authorized members of the law enforcement, criminal justice, and public safety
community. Information presented in this system is considered sensitive but not classified
and is for official law enforcement, criminal justice, and public safety use only.

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which the Attorney General could exercise this authority. 17 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. 18 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. 19
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. 20 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

17

See H.R. 2159.

18

See S. 1317.

19

The White House, Homeland Security Presidential Directive/HSPD-11, Subject:
Comprehensive Terrorist-Related Screening Procedures (Washington, D.C.: Aug. 27, 2004).
20

See, for example, 8 U.S.C. § 1182.

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needed to the watchlisting nominations guidance, including the No-Fly
criteria. 21 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
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21

The White House, Summary of the White House Review of the December 25, 2009,
Attempted Terrorist Attack (Washington, D.C.: Jan. 7, 2010).

(440871)

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GAO-10-703T

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