	Recent Developments

The April 15, 2013, Boston Marathon bombing that killed 3 people and wounded 264 could generate renewed interest in terrorist watchlist screening and background checks for firearms, because at least one of the alleged perpetrators was reportedly watch-listed as a suspected terrorist. And, on April 18, 2013, the alleged bombers—brothers Tamerlan and Dzhokhar Tsarnaev—are also alleged to have shot a police officer to death, high-jacked an automobile and taken its driver hostage at gunpoint, and engaged in a subsequent shootout with police. This pistol was reportedly recovered at the scene of the subsequent shootout with police, and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is tracing this pistol. In the 113 th Congress, even before the Boston bombing, Senator Frank Lautenberg and Representative Peter King had reintroduced their similar, but not identical, bills, the Denying Firearms and Explosives to Dangerous Terrorist Act of 2013 ( S. 34 and H.R. Also, in April 2013 when the Senate considered the Safe Communities, Safe Schools Act of 2013 ( S. 649 ), Senator Lautenberg filed an amendment ( S.Amdt. While the Senate leadership has set S. 649 aside, if the Senate reconsiders this bill, it might also consider S.Amdt. 734 . In addition, Representative James Moran has included similar provisions in the NRA Members' Gun Safety Act of 2013 ( H.R. 21 ). Those modified procedures became effective in February 2004. 2074 ). In the 111 th Congress, the November 2009 Fort Hood shooting renewed interest in this proposal, which Senator Lautenberg and Representative King had previously reintroduced ( S. 1317 / H.R. For context, a basic overview of the U.S. government's post-9/11 terrorist watchlist procedures is provided, as well as an analysis of the Terror Gap proposal, which has been reintroduced in the 113 th Congress ( S. 34 and H.R. What form of redress and remedy would be provided for misidentifications, improper watch-listing, and wrongful denial? Would the Terror Gap proposal draw unwanted public attention to terrorist watchlists and related screening procedures, possibly undermining the effectiveness of those measures by making terrorists and other adversaries aware of them, and possibly setting a judicial review precedent for other terrorist watchlist screening processes? Initially, the FBI did not conduct terrorist watchlist queries through NICS as part of Brady background checks for firearms because being a known or suspected terrorist was not, and is not, a legally disqualifying factor for firearms possession eligibility under federal law. Conducting terrorist watchlist checks as part of Brady background checks for firearms raises three possible issues for Congress: 
Should terrorist watchlist checks be incorporated statutorily into the Brady background check processes? Given certain statutory restrictions prohibiting a permanent or temporary registry of firearms or firearms owners, should approved firearm transfer records be maintained on a temporary basis to determine whether persons of interest in counterterrorism investigations had or have obtained firearms? Should the Attorney General be granted authority to deny a firearms transfer based solely on a terrorist watchlist match? When a private person (non-licensee) seeks to acquire a firearm (long gun or handgun) from a federally licensed gun dealer, he and the gun dealer are required to fill out ATF Form 4473. Under current law, there are 10 classes of prohibited persons. The transferee's information is crosschecked against three computerized databases/systems to determine firearms transfer/possession eligibility. In addition, individuals who believe they have been denied boarding or unduly scrutinized in secondary screening/inspections, because they believe they have been misidentified as a terrorist while being screened by TSA or CBP, have another avenue for relief. DOJ-FBI Modified NICS Procedures (February 2004)

In November 2003, DOJ directed the FBI to reassess its NICS procedures to include measures to screen prospective firearms transferees and permittees against terrorist watchlist records. While the NICS records are eventually destroyed for approved firearms transfers, it is unknown what happens to the information generated by NICS-related terrorist watchlist hits that are passed on to the FBI Counterterrorism Division and investigative personnel in the field, who are usually assigned to Joint Terrorism Task Forces. Although these proposals would have addressed the issue of record retention, they would not have provided the Attorney General with a specific statutory authority to conduct terrorist watchlist checks, nor would they have authorized the Attorney General to deny a firearms transfer based solely on a terrorist watchlist match. 1195 ) that would have barred anyone on the "No Fly" list from possessing a firearm. In the 110 th Congress, Senator Lautenberg and Representative King introduced this proposal ( S. 1237 / H.R. GAO also recommended that if Congress were to move forward with legislation providing the Attorney General with the discretionary authority to deny a firearms transfer or permit or an explosives license/permit based on a terrorist watchlist hit, then it should consider including a provision in that legislation that would require the Attorney General to promulgate guidelines that would delineate under what circumstances that authority could be exercised. 2159 and S. 1317 ), which supporters dubbed the "Terror Gap" proposal. 1506/S. 720 ). Acronyms and Abbreviations

ATF: Alcohol, Tobacco, Firearms and Explosives
CA: Bureau of Consular Affairs
CTD: Counterterrorism Division
CBP: Customs and Border Protection
DHS: Department of Homeland Security
DOJ: Department of Justice
DOS: Department of State
FBI: Federal Bureau of Investigation
FFL: Federal Firearms Licensee
GAO: Government Accountability Office
GCA: Gun Control Act
HSPD-6: Homeland Security Presidential Directive Six
IC: Intelligence Community
JTTF: Joint Terrorism Task Force
KST File: Known or Suspected Terrorists File
NCIC: National Crime Information Center
NCTC: National Counterterrorism Center
NICS: National Instant Criminal Background Check System
NTN: NICS Transaction Number
POC: Point-of-contact
TIDE: Terrorist Identities Datamart Environment
TRIP: Traveler Redress and Inquiry Program
TSA: Transportation Security Administration
TSC: Terrorist Screening Center
TSDB: Terrorist Screening Database
TSOU: Terrorist Screening Operations Unit
VAF: NICS Voluntary Appeals File
VGTOF: Violent Gang and Terrorist Organization File
The November 2009 shooting at Fort Hood, TX, renewed interest in terrorist watchlist screening and background checks for firearms through the National Instant Criminal Background Check System (NICS). Pursuant to the Brady Handgun Violence Prevention Act (P.L. 103-159), in November 1998 the Federal Bureau of Investigation (FBI) activated NICS for the purposes of determining an individual's firearms transfer and possession eligibility whenever a private person seeks to acquire a firearm from a federally licensed gun dealer. Prior to February 2004, however, the FBI did not conduct terrorist watchlist queries as part of firearms background checks because being a known or suspected terrorist was not a disqualifying factor for firearms transfer and possession eligibility; nor is it today under current law.
Similarly, the April 15, 2013, Boston Marathon bombing could generate renewed interest in terrorist watchlist screening, because at least one of the alleged perpetrators was possibly entered into the National Counterterrorism Center's (NCTC's) Terrorist Identities Datamart Environment (TIDE). As a consequence, he was possibly watch-listed in the FBI-led Terrorist Screening Center's Terrorist Screening Database—the U.S. government's master watchlist of known and suspected terrorists. In addition, on April 18, 2013, both alleged perpetrators—Tamerlan and Dzhokhar Tsarnaev—are further alleged to have shot and killed a police officer, high-jacked an automobile and taken its owner hostage at gunpoint, and engaged in a subsequent shootout with police. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is tracing a pistol recovered at the scene of the shootout. If the watch-listed brother, Tamerlan, had acquired the pistol from a federally licensed gun dealer, it might have generated a terrorist watchlist hit through NICS. Critics could argue that watchlist hits through NICS, or border and aviation security screening systems, might have prompted federal investigators to scrutinize Tamerlan Tsarnaev's travels and activities more closely prior to the bombing. As described in this report, moreover, a NICS-generated watchlist match might have prevented him from acquiring the pistol.
Following the September 11, 2001, terrorist attacks, the U.S. government reevaluated its terrorist screening procedures. As part of this process, the Department of Justice (DOJ) and FBI modified the Brady background check procedures and recalibrated NICS to query an additional file in the National Crime Information Center (NCIC) that included terrorist watchlist records. Since February 2004, information related to the subjects of NICS-generated terrorist watchlist matches have been passed on to the FBI Counterterrorism Division and special agents in the field, who are usually members of Joint Terrorism Task Forces (JTTFs). These FBI agents, in turn, verify the match between the individual and the watchlist record, and they check for information that would prohibit that individual, the prospective transferee, licensee, or permittee, from possessing firearms or explosives (e.g., illegal immigration or fugitive status).
While the modified NICS procedures initially generated little public opposition, those procedures called three possible issues into question. One, should terrorist watchlist checks be incorporated statutorily into the firearms- and explosives-related background check processes? Two, given certain statutory prohibitions related to prohibiting a firearms registry, should approved firearm transfer records be maintained on a temporary basis to determine whether persons of interest in counterterrorism investigations have obtained firearms? Three, should the Attorney General be granted authority to deny a firearms transfer based solely on a terrorist watchlist match? Since the 109th Congress, several related legislative proposals have been introduced. Several of those bills would have addressed the retention of firearms-related transfer records. Another proposal would have prohibited persons watch-listed as terrorists for aviation security purposes on the "No Fly" list from firearms transfer or possession eligibility.
In the 110th Congress, Senator Frank Lautenberg and Representative Peter King introduced a bill based on a legislative proposal developed by DOJ that would have authorized the Attorney General to deny the transfer of firearms or the issuance of firearms (and explosives) licenses/permits to "dangerous terrorists" (S. 1237/H.R. 2074). In the 111th Congress, they reintroduced this bill (S. 1317/H.R. 2159), which supporters dubbed the "Terror Gap" proposal. In the 112th Congress, they introduced similar bills (S. 34 and H.R. 1506). And, in the 113th Congress they reintroduced their bills (S. 34 and H.R. 720) once more. When the Senate considered the Safe Communities, Safe Schools Act of 2013 (S. 649) in April 2013, Senator Lautenberg also filed an amendment (S.Amdt. 734) to that bill, which is nearly identical to S. 34. While the Senate leadership set S. 649 aside, if the Senate reconsiders this bill, it might also consider S.Amdt. 734. In addition, Representative James Moran has included similar provisions in the NRA Members' Gun Safety Act of 2013 (H.R. 21).
The Terror Gap proposal raises several potential issues for Congress. One, should the Attorney General notify watch-listed individuals who have been deemed to be "dangerous terrorists" for the purposes of gun control? Two, what form of redress and/or remedy would be provided to individuals wrongfully denied a firearm transfer because they were misidentified, or improperly watch-listed, and then deemed to be a "dangerous terrorist"? Three, if enacted, would such a law draw unwanted attention to related terrorist screening procedures, possibly undermining the effectiveness of these procedures by making terrorists and other adversaries aware of them, and possibly setting a judicial review precedent for other terrorist watchlist screening processes?