Suspected Terrorists and Guns

The mass shooting in Orlando by a man who pledged allegiance to the terrorist Islamic State has reignited a debate in Washington over suspected terrorists’ access to guns in the U.S. But we find fault with some of the claims made by both sides in the debate:

  • A Republican senator said known or suspected terrorists “cannot just walk in and buy a firearm” at a gun store. Not that same day, but 91 percent of individuals on terrorist watch lists who have attempted to buy a firearm or explosives since 2004 were able to complete the sale — typically in three days.
  • U.S. Attorney General Loretta Lynch declined — twice — to say how many Americans are on terrorist watch lists, claiming “we don’t provide those exact numbers” or even a range. That’s false. Federal officials have told Congress that the number of U.S. citizens and legal residents on watch lists currently ranges from 5,000 to 15,000.
  • Donald Trump said a Florida gun store owner “reported” Omar Mateen to the FBI weeks before the Orlando shooting when Mateen attempted to buy body armor and bulk ammunition, but that “authorities didn’t act on it.” A gun store did report the suspicious activity, but was unable to provide the FBI with his name or other information about him.

Gun Sales to Suspected Terrorists

In December, the Senate defeated an amendment offered by Democratic Sen. Dianne Feinstein of California that would have allowed the attorney general to block the sale of weapons or explosives to individuals on terrorist databases if the attorney general had reason to believe that the weapons would be used in connection with terrorism. But the mass shooting in Orlando by Omar Mateen in the name of the terrorist Islamic State has reopened that debate.

After the Orlando shooting, Sen. Chris Murphy of Connecticut spoke on the Senate floor for nearly 15 hours, in an attempt to get the Senate to take up gun-control legislation — including a revised version of the Feinstein amendment.

Language was added to the Feinstein amendment to include anyone who has been the subject of a federal terrorism investigation in the past five years. That’s because the FBI investigated Mateen for terrorism ties in 2013 and 2014, but closed those investigations without taking action. Mateen purchased the guns used in the attack in June.

The Senate was expected to take up Feinstein’s amendment June 20 during its consideration of the annual appropriations bill for the Department of Justice and other related agencies.

On June 16, CNN’s Wolf Blitzer interviewed Sen. James Lankford, who voted against Feinstein’s amendment last year. Wolf asked Lankford, of Oklahoma, if he would vote for legislation that “would prevent those on the terror watch list from getting a gun.” Lankford said known or suspected terrorists “cannot just walk in and buy a firearm” at a gun store.

Lankford, June 16: If someone is known or suspected as a terrorist, they cannot just walk in and buy a firearm. They have a long waiting period that actually kicks in that the system itself will kick them out. The FBI is pinged on that, and they get some options to be able to deal with. So it is already current law. So there’s a lot of pushback to say all these known terrorists can just walk in and buy a gun at a gun store. That is not correct. They are already held back and already cannot walk in and buy a gun in a gun store right now.

Lankford’s response is misleading. The FBI has limited options in dealing with individuals on a terrorist watch list who want to buy a weapon or explosives, and while the sale or transfer may not happen immediately, it can happen after 72 hours.

Here’s how the National Instant Criminal Background Check System works: A prospective gun buyer who tries to buy a gun from a licensed firearms dealers fills out an application that is checked against a variety of databases to determine if the applicant is legally permitted to buy a gun. Those databases contain criminal records and court records (such as warrants and protection orders), as well as immigration and naturalization records if the applicant is not a U.S. citizen.

An FBI spokesman told us that a weapons sale or transfer can be approved in less than an hour if the background search turns up no evidence that the applicant is prohibited from owning a gun. But if the name of the applicant matches any of those in the databases, then the gun purchase can be delayed for up to 72 hours — giving NICS examiners at an FBI office in West Virginia time to review the case and determine if the person is indeed prohibited from purchasing a weapon.

An application can be denied, for example, if the person is a convicted felon or fugitive, or if the person is living in the U.S. illegally or has been convicted of a domestic violence offense.

In February 2004, the Department of Justice began checking prospective gun buyers against what the FBI calls the Known or Suspected Terrorist File — which includes the Terrorist Screening Database, commonly referred to as the FBI’s terrorist watch list, as explained in a May 2013 report by the nonpartisan Congressional Research Service. A match in the terrorist database triggers an automatic 72-hour delay, even if there are no other so-called “prohibiting factors.”

It may be, for example, that the FBI has disqualifying information on that individual that is not entered in the NICS databases.

CRS, May 1, 2013: During a delay, NICS staff contacts immediately the FBI Headquarters’ Counterterrorism Division and FBI Special Agents in the field, and a coordinated effort is made to research possibly unknown prohibiting factors. If no prohibiting factors are uncovered within this three-day period, firearms dealers may proceed with the transaction at their discretion. However, FBI counterterrorism officials continue to work the case for up to 90 days in case disposition information is returned that permits a final determination.

So Lankford is correct that the “FBI is pinged” whenever an individual on a terrorist watch list tries to buy a gun. But the sale can proceed after three days — and that’s exactly what has happened in the vast majority of cases, as we mentioned earlier.

Since the National Instant Criminal Background Check System began checking prospective gun buyers against terrorist watch list records in February 2004, “individuals on the terrorist watch list were involved in firearm or explosives background checks 2,477 times, of which 2,265 (about 91 percent) of the transactions were allowed to proceed and 212 were denied,” according to the nonpartisan Government Accountability Office. (See GAO chart below for more details.)

Terrorists background checks

By law, all identifying information about the buyer in cases like this must be destroyed in 90 days, except for the transaction number and date. But the CRS says “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.” It is possible that that information is “recorded and stored electronically in the FBI’s investigative case files.”

An FBI spokesman told us that the FBI can open an investigation if there is probable cause. FBI guidelines say a preliminary investigation may be opened “on the basis of any ‘allegation or information’ indicative of possible criminal activity or threats to the national security.”

We take no position on Feinstein’s amendment. But Lankford isn’t telling the whole story when he says that individuals on a terrorist watch list “cannot just walk in and buy a firearm” at a gun store. They can after a three-day wait, and nine out of 10 of those who have tried have done so.

Americans on the Terrorist Watch List

On ABC’s “This Week,” U.S. Attorney General Loretta Lynch declined — twice — to say how many Americans are on the terrorist watch list, claiming “we don’t provide those exact numbers” or even a range. That’s false. Federal officials have told Congress that the number of “U.S. persons” on terrorist watch lists ranges from 5,000 to 15,000.

Lynch made her remarks when asked about Feinstein’s amendment by “This Week” host Jonathan Karl.

Karl, June 19: The Justice Department has come out in favor of this idea of the no-fly, no-buy. If you’re on the terrorist watch list, the no-fly list, you shouldn’t be able to buy a gun. How many Americans are on the terrorist watch list?

Lynch: You know, we don’t provide those exact numbers.

Karl: Can you give me a range? I mean, what are we talking about here?

Lynch: Well, as I said we don’t provide those exact numbers.

As we have written before, there are multiple databases that contain the names of suspected or known terrorists. The largest is the Terrorist Identities Datamart Environment, or TIDE. The National Counterterrorism Center maintains TIDE, which the nonpartisan Congressional Research Service in a 2013 report referred to as the government’s “central repository” of international terrorists and suspected terrorists. The number on that list stood at 1.1 million as of December 2013, including 25,000 “U.S. persons” (that is, citizens and legal permanent residents), according to an NCTC fact sheet.

As of June 17, the total number of names on the TIDE list had grown to 1.5 million names, although the number of U.S. persons shrunk to “fewer than 15,000,” according to Feinstein’s office.

The FBI’s Terrorist Screening Center separately maintains the Terrorist Screening Database, which is commonly referred to as the Terrorist Watchlist. The FBI told Feinstein’s office that there are about 1 million records in the TSDB, and about 0.5 percent of those — or fewer than 5,000 records — are of U.S. persons. The watch list includes about 81,000 names on the so-called no-fly list, including fewer than 1,000 names of U.S. persons.

The senator’s office said the data were obtained from “the National Counterterrorism Center (NCTC) and the Federal Bureau of Investigation (FBI) to Congressional questions.” The NCTC is within the Office of the Director of National Intelligence, but the FBI’s Terrorist Screening Center is in the department headed by Lynch. 

So Lynch was wrong when she said “we don’t provide those exact numbers” or even a range.

What Gun Store ‘Reported’ About Mateen

Donald Trump left out important facts when he said a gun store owner “reported” Omar Mateen to the FBI weeks before the Orlando shooting due to suspicious behavior while Mateen was trying to buy body armor and bulk ammunition, but that “authorities didn’t act on it.” A gun store did report the suspicious activity, but was unable to provide the FBI with Mateen’s name or other information about him. And so the FBI said that due to a lack of information, it was “unable to conduct any meaningful investigative follow up.”

Trump raised the issue on two Sunday shows on June 19. One instance came on ABC’s “This Week” in an interview with Jonathan Karl.

Trump, June 19: He [Mateen] was a bad dude. I mean look, will somebody slip through? Yes. You have a problem. You have to report these people. And everybody knew this guy had a problem. Now, in one case they did report it. I guess the gun store owner reported him and the authorities didn’t act on it. What a shame.

Karl: So what does that say to you?

Trump: It says very sad, that’s what it says. I mean to me, it says very sad. But they actually did report him and the authorities didn’t act. And I think it’s very unusual. And I’m a big fan of the FBI, but they had a little bit of a bad day.

Trump reiterated the point in a CBS “Face the Nation” interview with John Dickerson.

Dickerson, June 19: What Donald Trump policy would have kept this from happening?

Trump: Well, we have to report. Look, the big thing that we’re missing here is that people have to report when they see somebody. This man [Mateen] was pretty much unhinged. I mean, you look at his record. You look at what happened. And, actually, I guess it was the gun store that did report, and reported him when he went in to buy all sorts of body armor and other things. He reported him to the authorities, law enforcement. And it — very sadly, nothing was done.

Dickerson: But the …

Trump: It could have been prevented. He was excellent in what he did, but, unfortunately, nobody took advantage of it.

In a June 16 interview on ABC News, Robert Abell, a co-owner of Lotus Gunworks in Jensen Beach, Florida, said a man later identified as Orlando nightclub shooter Mateen came into his store several weeks before the mass shooting and attempted to buy high-grade body armor and more than 1,000 rounds of ammunition.

Abell said a store salesman found Mateen’s behavior “very suspicious” due to odd questions about the body armor — which the store did not carry — and a subsequent cell phone conversation Mateen held in a “foreign language.” The salesman denied Mateen’s request for ammunition — Abell said he wanted bulk ammunition only — and after Mateen left, the store called the local FBI office in West Palm Beach and reported the incident.

”Something in his gut told him it was wrong,” Abell said of the employee, according to a New York Times report.

But Abell said they weren’t able to provide Mateen’s name, because no sale was made, and the surveillance footage they had was grainy, ABC News reported.

“We had no link, no contact, didn’t know who he was,” Abell said. “But we did contact authorities and let them know we just had a suspicious person that was in here.”

Abell said there was a follow-up conversation with agents, but he said the FBI never visited the store or investigated further, ABC News reported.

According to a statement from the FBI on June 17, the store operators were “unable to collect any information about him, to include name, date of birth, charge card, telephonic information, or e-mail address.”

“Unfortunately, given the lack of information about this individual, FBI agents were unable to conduct any meaningful investigative follow up,” the FBI statement said.

Abell said it wasn’t until after the deadly attack in the Orlando nightclub that a store employee recognized that the man who had entered the store that day was Mateen.

”And here’s a prime example of trying to do the right thing, and we got so close to it,” Abell said. “But unfortunately, he slipped through the cracks, and this is where we’re at.”

On ABC’s “This Week,” Karl asked U.S. Attorney General Lynch if the FBI did enough to follow-up on the gun store’s tip.

Lynch said that “because Mateen didn’t make a purchase, there was no record, there was no identifying information. But [the gun store employee] did provide that information. And that’s exactly what he was supposed to have done. And we appreciate that.”

Karl then asked if the FBI did anything with that information.

“Well,” Lynch said, “at the time, there was no identifying information on that and in fact, it wasn’t until these tragic events of last weekend that the gun shop owner realized, oh my goodness, that was the man that came in and, in fact, provided that information that allowed us to connect those dots.”

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