Justice Dept. Bars Use of Gun Checks in Terror Inquiry
"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."
The New York Times
December 6, 2001
BACKGROUND CHECKS
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.
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