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Suspected terrorists who aren’t allowed to board a plane are allowed to buy firearms under federal law.
It’s a fact that has many Americans befuddled, including those in Congress and the White House. Many refer to it as “the terror gap,” which allows individuals on the Federal Bureau of Investigation’s terror watch lists to still legally acquire weapons. The most recent mass shooting in Orlando, Florida, led to President Barack Obama calling for a “No Fly, No Buy” law banning those on the government’s terrorist watch lists from buying weapons. Both Hillary Clinton and even Donald Trump voiced a need to change the law.
But prior attempts by Congress to take up bills related to the “terror gap” date back to the 2012 Sandy Hook elementary school shooting, and all have failed. Senate Democrats even held a funding bill hostage on Wednesday and urged the body to take up legislation by Sen. Dianne Feinstein (D-Calif.) that would allow state attorneys general to delay purchases of weapons by suspected terrorists while law enforcement investigates. The Senate is expected to vote Monday on four different gun control proposals, including the Feinstein amendment as well as a competing Republican proposal by Sen. John Cornyn (R-Texas).
The National Rifle Association (NRA) has vehemently opposed an outright ban on gun sales to those on the FBI‘s watchlist and signaled they would not support the legislation by Feinstein and other Democrats. The organization has argued in the past that such legislation would target “lawful gun owners” who were wrongly on terrorist watch lists without giving them a means to appeal the decision. The organization does, however, support delaying the sale of guns to suspected terrorists while the FBI investigates their intent.
A Feinstein staffer told the Daily Dot by email that the new legislation allows someone who believes they have been mistakenly denied a gun to learn the reason for denial. They can also challenge the denial with the U.S. Department of Justice and, if necessary, sue in federal court.
A visit to the NRA by Trump, the presumptive Republican nominee, on Wednesday lead to the organization announcing that there was no change in their position.
“The American people have seen—(…with Orlando)—how tightly the NRA’s control is over this body. We should already have voted on this ban. We should have already moved on to other gun control issues,” said Sen. Ed Markey (D-Mass.) on the Senate floor Wednesday.
Critics argue that an outright ban would give law enforcement agencies such as the FBI too much power to deny citizens of a constitutionally protected right. Others point out that FBI’s terror watchlists are prone to error. It’s a conflict between counter-terrorism and civil liberties that has made strange bedfellows of the NRA and the American Civil Liberites Union (ACLU).
But what exactly is the FBI terrorist watch list? And why has it been so difficult to stop potential terrorists from buying weapons?
What is the FBI terror watch list?
Following the 9/11 terrorist attacks, the FBI’s Terrorist Screen Center in 2003 began maintaining a nationwide database of known and suspected terrorists dubbed the Terrorist Screening Database. Prior to this, law enforcement agencies maintained dozens of watchlists and information was rarely shared across departments and agencies.
The FBI’s “watchlists” also includes the “No Fly” and “Selectee” watchlists, both which the Transportation Security Administration (TSA) uses when screening passengers. The “No Fly” list consists of individuals who are barred from boarding or departing commercial aircraft in the United States. There’s also the lesser-known “Selectee” list, which subjects people to an additional screening once they get past the metal detector, such as a pat-down.
Individuals get nominated to be on the watchlists by a variety of federal, state, and local government agencies, including the Central Intelligence Agency (CIA), State Department, FBI, and Department of Homeland Security. U.S. Embassies and consulates can also make nominations.
What kind of behavior gets a person nominated to the FBI’s Terror Watchlist?
The criteria for getting put on the FBI’s Terror Watchlist is not shared, since the FBI believes individuals would use this information to avoid detection, a spokesman for the FBI’s Terrorist Screening Center told the Daily Dot.
The FBI’s website states that there are several “layers” of review before an individual gets placed on any of the watchlists. Agencies must have a “reasonable suspicion” that a person is participating in or aiding terrorist activities. According to a report by the Government Accountability Office, the FBI regularly submits the names of people they are preliminarily investigating for terrorist ties to the watchlist.
In a nutshell, the government must have reasonable suspicion that you intend to commit an act of terror in the United States. Several critics of watchlisting have pointed out that “reasonable suspicion” is a lower burden of proof than probable cause, which is the minimum standard that police must meet for making an arrest.
The Intercept noted that a March 2013 “Watchlisting Guidance” document from the National Counterterrorism Center included in its definition of terrorism actions that fell short of hijacking and bombing. Plenty of non-violent activities, such as stealing government property or harboring and/or financing a terrorist were listed as examples of terrorism.
Other examples of terrorism given in the 166-page document include: the destruction of aircraft or an aircraft facility; acquisition of biological weapons; arson and/or bombing of government property, assassination or kidnapping of members of Congress, cabinet officials and/or Supreme Court Justices; and destruction of communication lines and systems.
In order to get watchlisted, the government must have a reasonable suspicion you’re planning on doing these things. The document states that constitutionally protected activities, such as participating in free speech, religion, press, or assembly won’t get you watchlisted.
In short, wearing a T-shirt or writing a blog post critical of the president won’t get you watchlisted. But as the Intercept points out, the government won’t automatically discount posts you make on social media either.
“Single source information, including but not limited to ‘walk-in,’ ‘write-in,’ or postings on social media sites, however, should not automatically be discounted. … [T]he NOMINATING AGENCY should evaluate the credibility of the source, as well as the nature and specificity of the information, and nominate even if that source is uncorroborated,” the document states.
How many people are on the FBI’s Terror Watchlist?
Following Umar Farouk Abdulmutallab’s failed effort to blow up an airplane in 2009, the number of nominees to watchlists quickly expanded. Less than four months after the attack, the “No Fly List” doubled from 3,400 people to around 6,000 people, reported USA Today.
According to the Associated Press, a total of 250,847 names were nominated in the 2010 fiscal year. In fiscal 2013, that number grew to 468, 749 names. As the Intercept points out, only a very small number of nominees to the watchlist are actually rejected. Only 1 percent of nominees were rejected in fiscal 2013.
Media reports by the Washington Post and other outlets found that over 700,000 people are on the terrorist watchlist are almost 10 years out of date. As the ACLU points out, those numbers cite a 2007 Office of Inspector General report. The report stated there were over 700,000 names on the list in April 2007 and that figure was growing, on average, by 20,000 names per month.
By those estimates, the ACLU estimates that the current FBI Terror Watchlist includes over 1 million individuals.
Is there any way to find out if I’m on a watchlist?
No. The FBI’s policy is to neither “confirm nor deny” an individual’s placement on a watch list.
How many people on the watchlists were able to buy weapons?
Updated GAO figures reveal that, between February 2004 and December 2015, known or suspected terrorists initiated a background check a total of 2, 477 times. They were able to successfully pass that background check 91 percent of the time.
During the whole of 2015, individuals on the terror watchlist were involved in firearm-related background checks 244 times. A total of 223 of these transactions were allowed to proceed.
What will the bill currently under debate in the Senate do?
Senators are expected to vote Monday on four different gun control proposals; two by Republicans, two by Democrats. Since all would require 60 votes, they are expected to fail.
An amendment filed by Feinstein would let the government block sales to suspected terrorists and has been endorsed by the Justice Department. Another amendment by Murphy, Booker, and Schumer mandates background checks for anyone who wants to buy a firearm online or at a gun show and would also penalize those who fail to report a missing or stolen gun to authorities. States and the federal government would also be required to send records on felons and those who have been ordered by a court to receive treatment for mental illness to the National Instant Criminal Background Check System, a list of people barred from buying firearms and explosives.
Another NICS-related amendment is expected to be offered by Senate Judiciary Commitee Chairman Charles Grassley (R-Iowa). While Grassley amendment would boost funding for the NICS, Democrats say it would make it easier for veterans ruled to be mentally incompetant by the Department of Veteran’s Affair to buy guns.
“Our military heroes risked their lives to protect and defend this country and all that we stand for, including our most basic constitutional rights. Now the very agency created to serve them is jeopardizing their Second Amendment rights through an erroneous reading of gun regulations. The VA’s careless approach to our veterans’ constitutional rights is disgraceful,” Grassley said in a statement when he introduced the proposal in March. The amendment would restrict the VA from using federal funding to report veterans to the NICS system without a judicial ruling that they are a harm to themselves or others.
Under the Feinstein amendment, state attorneys general would be able to block the sale of a gun to suspected terrorists using the same standards already in place to add new people to the FBI’s terrorist watchlist. The amendment is largely the same as a bill Feinstein introduced in February, except for one big difference: It would require anyone who was the subject of a federal terrorism investigation in the past five years to be automatically flagged within the existing background check system for further review by the Justice Department.
Feinstein told reporters on Wednesday that the new language would cover the Orlando shooter Omar Mateen’s gun purchases.
When the Senate voted on the Feinstein bill back in December, a total of 53 Republicans voted against it. The Orlando shooting is likely to have changed some minds. Sen. Rob Portman (R-Ohio), who voted against the bill in December, told reporters Wednesday that he is open to the terrorist watchlist gun ban. A nearly 15-hour talkathon about gun control, led by Murphy, commenced at around 2am ET on Thursday after Senate Republicans agreed to vote on gun control legislation.
The major issue Republicans have with Feinstein’s bill is that it lacks a strong enough burden of proof for attorneys general to block gun sales. Under the bill, a state attorney general can block sales if they have a “reasonable belief” that the weapons would be used in connection with terrorism.
Many Republicans, as well as the NRA, supported a bill that Cornyn introduced last year that would delay the sale of a gun to a suspected terrorist for 72 hours while the Justice Department investigated. If the DOJ was able to show probable cause, the sale could be stopped.
Critics of the bill argue that showing probable cause was too difficult. Everytown for Gun Safety, a gun-rights group funded by former New York Mayor Michael Bloomberg, opposed the bill.
“Cornyn’s proposal would require the Department of Justice to prove to a judge that a suspected terrorist has already committed or will actually commit an act of terrorism—a standard so high that it’s practically meaningless. And DOJ would have only 72 hours to do the nearly impossible. Otherwise, a potentially dangerous gun sale could proceed,” wrote John Feinblatt, Everytown’s president, on the Hill.
Although Feinstein was in talks with Cornyn to work out a compromise between both bills, the Hartford Courant reported that no compromise was reached as of Thursday morning.
Update 12:35pm CT, June 20: Updated with new vote information and additional details about pending legislation.
Amrita Khalid is a technology and politics reporter who specializes in breaking down complex issues into practical, useful terms. A former contributor to CQ, a Congressional news and analysis site, she's currently a master's candidate in international relations at the University of Leeds.