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. No transactions involving explosives  background checks were denied. 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. 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. 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. 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, 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. 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. 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. 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. 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.
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.