In January 2004, Congress stripped from the FBI the authority to retain firearm background-check records of presumptively legal gun buyers for more than 24 hours. The policy, championed by former Attorney General John Ashcroft, seemed particularly unwise in light of the warnings from Bush administration officials that terrorism could manifest itself in any number of ways.
At the time, the National Rifle Association (NRA) chided gun-control proponents for seeking to sneak their political agenda under the rubric of terrorism policy. The implications of this policy, however, were difficult to ignore.
On Tuesday, March 8, the Government Accountability Office (GAO) released a study that documented dozens of instances where suspected terrorists on federal watch lists were able to purchase firearms with impunity. In 47 of 58 instances over a nine-month period in 2004, suspected terrorists were approved by the FBI to purchase firearms because the background check revealed no disqualifying characteristic (such as a conviction for a felony).
Senator Frank Lautenberg, who commissioned the GAO study, plans to introduce legislation that would require the FBI to retain for a longer period of time the background-check records of suspected terrorists approved to purchase firearms. His proposed bill would allow law-enforcement officers to retrieve firearms from suspected terrorists. Retaining the records of gun buyers would allow FBI agents to look at the books and figure out how the suspected terrorist got the weapon -- and would allow the agents to get it back from the suspects.
Such legislation, however, does not go nearly far enough. Congress should authorize the FBI to retain background-check records for at least one year. This would help allow the FBI to respond in instances where firearms are given or sold to individuals who never should have been able to get them in the first place.
More importantly, confining any record-retention policy to known terrorists who might have purchased firearms only addresses a small part of the problem. Only two of the 19 September 11 hijackers appeared on any terrorist watch list maintained by the federal government. The GAO study itself only purports to identify the problem of transferring firearms to terrorist suspects who actually appear on FBI watch lists. The next-day-destruction policy, which means that records are destroyed within 24 hours, makes it impossible to figure out how many other suspected terrorists have exploited this loophole to get a firearm. (Current law requires the FBI to destroy the records within 24 hours. At that point, federal law-enforcement authorities are no longer able to repossess a firearm that was wrongly transferred. The reason is simple: There's no documentation that a background check had been initiated.)
Prior to February 2004, when a firearm was mistakenly given to an individual who's prohibiting from purchasing one, law-enforcement officials could initiate what is called a "firearm-retrieval action" to obtain the weapon from the individual who has purchased it, as well as prosecute him or her. Under prior law, the FBI was able to retain the records of approved gun purchasers for up to 60 days.
In July 2002, a six-month GAO study commissioned by Senator Dick Durbin found that 228 of 235, or 97 percent, of firearm-retrieval actions could not have been completed if the FBI had been required to destroy approved-gun-purchaser records within 24 hours.
Despite this damning evidence, however, Congress, at the behest of the NRA, pushed ahead with the new legislation, neatly ensconcing it in an omnibus appropriations bill where it would not receive thorough consideration. The next-day-destruction policy now allows the majority of mistakenly approved gun purchasers, including suspected terrorists, to keep firearms that they never should have had in the first place.
That such a development could come to fruition seemed intuitively obvious to the FBI Agents Association, which, prior to the enactment of the 24-hour destruction policy, opined that “the more the retention period is reduced, the more difficult it would become to use the paperwork to investigate or prosecute crimes related to the use of sales of the firearms in question.”
Osama bin Laden has been a fugitive on the run since September 11, 2001. If we can't catch the most wanted criminal on earth in less than 40 months, how can we expect the FBI to catch a terrorist with a gun in 24 hours?
David Lieber worked as a legislative assistant for Senator Dick Durbin on the Senate Judiciary Committee from 2000-02, primarily working on crime issues. He currently attends the Northwestern University School of Law.
