the more things change,the more they stay the same..
December 6, 2001
Justice Dept. Bars Use of Gun Checks in Terror Inquiry
By FOX BUTTERFIELD
The Justice Department has refused to let the
F.B.I. check its records to determine whether any of
the
1,200 people detained after the Sept. 11 attacks
had bought guns, F.B.I. and Justice Department
officials say.
The department made the decision in October after the
F.B.I. asked to examine the records it maintains on
background checks to see if any detainees had
purchased guns in the United States.
Mindy Tucker, a spokeswoman for the Justice
Department, said the request was rejected after
several
senior officials decided that the law creating the
background check system did not permit the use of the
records to investigate individuals.
Ms. Tucker did not elaborate on the decision, but it
is in keeping with Attorney General John Ashcroft's
strong support of gun rights and his longstanding
opposition to the government's use of background check
records. In 1998, as a senator from Missouri, Mr.
Ashcroft voted for an amendment to the Brady
gun-control law to destroy such records immediately
after checking the background of a prospective gun
buyer. That amendment was defeated.
"We intend to use every legal tool available to
protect American lives," John Collingwood, an
assistant
director of the F.B.I., said, but he added that
"applicable law does not permit" the background check
records to be used "for this purpose."
The Justice Department's action has frustrated some
F.B.I. and other law enforcement officials who say it
puts the department at odds with its own priorities.
Even as the department is instituting tough new
measures to detain individuals suspected of links to
terrorism, they say, it is being unusually solicitous
of
foreigners' gun rights.
The International Association of Chiefs of Police, the
nation's largest group of law enforcement executives,
has already written one letter to the F.B.I. opposing
Mr. Ashcroft's policy on gun records, and is drafting
a
second letter questioning the decision not to check
the gun records.
"This is absurd and unconscionable," said Larry Todd,
the police chief of Los Gatos, Calif., and a member of
the group's firearms committee. "The decision has no
rational basis in public safety.
"It sounds to me like it was made for narrow political
reasons based on a right-to-bear-arms mentality," he
said. "If someone is under investigation for a
terrorist act, all the records we have in this country
should be
checked, including whether they bought firearms."
Yesterday, Senator Charles E. Schumer, Democrat of New
York, wrote to Mr. Ashcroft, saying, "If the
Department of Justice is not using the N.I.C.S.
database as part of the investigation, I am very
concerned
that the F.B.I. is being unnecessarily limited in the
tools that it can use to bring the perpetrators of
this
heinous attack to justice." N.I.C.S. is the National
Instant Criminal Background Check System.
The conflict over how to deal with the records of
background checks of gun buyers predates Sept. 11.
Under the system, a gun dealer faxes in a form filled
out by a prospective buyer to either the F.B.I. or a
state law enforcement agency; the authorities then run
a computerized search to make sure that the buyer
does not fall into one of several categories of people
prohibited from buying a gun.
The records of those background checks, known as audit
logs, have long been a point of contention for
some gun-rights advocates, who contend that they
create a de facto national gun registry.
The F.B.I. preserves the records for 90 days; it has
said it needs at least that long for investigative
purposes and to make sure the system works. The
Justice Department, however, is expected to announce
soon that it is switching to destruction of the
records within 24 hours.
On Sept. 16, said Mr. Collingwood, the assistant
F.B.I. director, the Treasury Department's Bureau of
Alcohol, Tobacco and Firearms asked the F.B.I. to
check a list of 186 names of detainees against the
background check records.
The F.B.I. got two "hits," other F.B.I. officials
said, meaning that two of the detainees had been
approved to
buy guns.
But the next day, after a further review by F.B.I. and
Justice Department lawyers, the bureau's unit that
maintains the records "was advised that reviews for
this purpose were not permissible under the current
statutory and regulatory scheme," Mr. Collingwood
said.
"That was confirmed after a request that the matter be
reviewed again," Mr. Collingwood added,
apparently a reference to what other F.B.I. officials
said was an appeal to the Justice Department by a
senior F.B.I. official.
Among those in the Justice Department who opposed
letting the F.B.I. use the records were Viet Dinh, the
assistant attorney general for legal policy and a
political appointee close to Mr. Ashcroft, as well as
a
second top department official, Ms. Tucker said.
The dispute about the records centers on two issues:
which people can be checked and how the records
may be used by investigators.
Until now, F.B.I. officials said, it was permissible
to check the records if someone who had been approved
to buy a gun should not have been allowed to. The
prohibited categories include foreigners of several
different statuses, like an illegal immigrant or
someone in the country for less than 90 days.
Investigators
believed that many detainees fell into those groups
and sought clearance to check whether they had bought
guns.
But in what several officials called a reversal of
existing procedure, Mr. Dinh ruled that these checks
were
improper, reasoning that they would violate the
privacy of these foreigners. F.B.I. officials said
foreigners
normally did not have privacy rights unless they have
achieved permanent resident status.
"It is like there is a gun-rights exception to the war
on terrorism," said Mathew Nosanchuk, litigation
director for the Violence Policy Center, a gun control
group in Washington. Mr. Nosanchuk was a Justice
Department lawyer in the Clinton administration who
helped to write many of the gun-records regulations.
The records may be reviewed to assure the system
functions properly, but a second issue is whether they
can be used by investigators.
Current rules state the records can be used "for the
purposes of investigating, prosecuting, and/or
enforcing violations of criminal or civil law that may
come to light during N.I.C.S. operations."
Mr. Nosanchuk said, "A fair interpretation is that if
there is a terrorist act, and that if you have a basis
to
think a person was in a prohibited category, it would
be O.K. for law enforcement to check the records to
see if a person purchased a gun."
Andrew Arulanandam, a spokesman for the National Rifle
Association, declined to comment on whether the
Justice Department's ruling may have hindered the
Sept. 11 investigation to protect gun rights.
But he said the fact that the F.B.I.'s initial check
found that two detainees had been wrongly cleared to
buy
guns was "testament to the lack of attention focused
on building the N.I.C.S. by the Clinton
administration."
While it cannot be determined how many detainees
bought guns, the Bureau of Alcohol, Tobacco and
Firearms did check some names against its database of
guns that have been used in the commission of
crimes. It found that 34 guns seized in crimes had
been bought at some point by people on the detainee
list, an A.T.F. agent said. |
