Using the terror watchlist for gun checks is a really dumb idea for several reasons.
The watchlist, as a means of gun control, is set up to fail in the first place, and in cases where guns have been the main weapon used in terror organization-inspired attacks (the government calls them “lone wolf” attacks), the system has a dismal record in preventing weapons from getting into terrorist hands.
(Due to the classified nature of the database, we will likely never know how effective it has been, but going by the last few years in the news, it’s an abject failure.)
Part of the reason for that failure is due to the mission of the organization which created and maintains it.
The FBI operates an office called the Terrorist Screening Center. It’s a multi-agency organization created by President George W. Bush in 2003 to maintain a consolidated database for realtime cooperation and intelligence sharing.
The TSC does not serve the public
The TSC’s mission, according to its own website, is:
- Watchlisting: The TSC maintains and operates the TSDB (Terrorist Screening Data Base)
- Screening: The TSC provides near real-time identity resolution
- Information Sharing: The TSC shares information from the TSDB with key partners
The TSDB is also known as the “terror watchlist” which has been bandied about as the key arbiter of who should or should not be granted their Second Amendment rights by the government. Part of that TSDB feeds into the TSA’s “no fly” list, but they are separate things.
The TSC’s customers are local, state and federal law enforcement, U.S. and foreign intelligence agencies, and the Department of Justice. That’s it. Regular citizens are not customers. Under “redress procedures,” we’re given basically no rights as potential members of this cheerless club.
Because the contents of the consolidated terrorist watchlist are derived from classified and sensitive law enforcement and intelligence information, the TSC cannot confirm or deny whether an individual is on the watchlist. The watchlist remains an effective tool in the government’s counterterrorism efforts because its contents are not disclosed.
The TSC will not confirm or deny anyone’s presence in the database, because that would compromise its mission.
Contrast this with the FBI’s National Instant Criminal Background Check System (NICS). That’s the system gun dealers use to check if you’re eligible to purchase a firearm. Its customers are every cashier at every store that sells guns in America. They are open 17 hours a day, every day of the year except Christmas. Very customer friendly. Oh, and it’s instant.
Do you see the inherent conflict here? Taking the former database, operated by intelligence spooks for investigators and other spooks, and feeding it into the latter database, which is for Bass Pro Shops cashiers to use, is plainly stupid and will result in an entirely new level of SNAFU-laced confusion.
The fine folks at the FBI who run the NICS likely don’t have access to the full TSDB, or a way to confirm or deny someone’s presence on it. So customer service can only shrug and say “declined, sorry” when the government abridges a citizen’s constitutional rights.
The TSC is a politically correct mess designed to fail for gun control
But even worse, and this is the killer, the TSDB is a politically correct tool which by its nature is designed to let people likely to be radicalized slip through, while casting a wide net for those the government deems “risks.” From the “safeguarding civil liberties” section of the TSC website:
Individuals must not be watchlisted based solely on race, ethnicity, national origin, religious affiliation, or First Amendment-protected activities such as free speech, the exercise or religion, freedom of the press, freedom of peaceful assembly, and petitioning the government for redress of grievances.
So when a peaceful group of Muslims meets in a mosque and hears a tape of Abu Mohamed al-Adnani, the leader of the Islamic State, saying this:
Ramadan, the month of conquest and jihad. Get prepared, be ready…to make it a month of calamity everywhere for the non-believers…especially for the fighters and supporters of the caliphate in Europe and America.
The smallest action you do in their heartland is better and more enduring to us than what you would if you were with us. If one of you hoped to reach the Islamic State, we wish we were in your place to punish the Crusaders day and night.
Apparently, the FBI can’t add them to the watchlist because of their own PC rules. But we can’t confirm or deny if terrorists like Omar Mateen or Tashfeen Malik and Syed Farook made it on the watchlist, but we do know Farook’s friend bought his weapons for him.
The TSDB is designed for investigators to connect the dots on larger operational plans, like what happened on 9/11. It allows terror networks to be exposed, operatives to be rolled up, and ultimately, operations to be foiled before they happen. It allows ruses and informants to lure potential terrorists into buying fake explosives so they can be arrested before doing damage.
It is not designed to provide “actionable intelligence” on individuals who are being radicalized piece by piece on a thousand ever-changing Twitter accounts (I’m sure the NSA, CIA and other cyberwarriors do have tools for this) then decide to follow through with a soft-target attack on their own. The FBI might have talked to those people based on certain contacts, but without a criminal case or definitive operations planned, those cases get closed.
There’s somewhere between 800,000 and a million (there’s no way to know) names in the TSDB, and many of them are foreign nationals. The “near real-time identity resolution” function of the TSC isn’t set up to be used like the NICS, which processes millions of checks a month (nearly 11.7 million through May 2016). There’s absolutely no way the TSC could accurately check identities at that volume. Again, the TSC caters to the intelligence and law enforcement community, not the public.
If the government decides it absolutely MUST have a way to track potential terrorists and keep them from buying guns using a real-time database, the TSDB and no fly lists are the dumbest possible options.
What can be done?
The way to handle that function is to set up a completely new office which has access to the TSDB’s data, and local, state, and federal law enforcement. Their sole function would be to maintain the “gun check” list under the overwatch of a federal judge, very much like FISA court. Staff it with a few civil rights attorneys, a bevy of crack database designers, some intelligence analysts, and law enforcement liaisons. This agency would flag actual people, dispatch law enforcement to find them and interview them, and inform them of their rights.
Only those who are deemed immediate threats would be actually banned from buying firearms (“immediate threat” being a test with which law enforcement is intimately familiar, and subject to probable cause and other evidence requirements). The rest would simply have a code pop up in the NICS results telling the cashier the flag is active. Then it’s up to Bass Pro Shops whether they still want to sell that gun. Even better, simply add a question to the ubiquitous ATF Form 4473 “Firearms Transaction Record.”
11.m. Are you currently, to your knowledge, on the National Firearms Terrorism Prevention List?
Check “yes” and there’s a box to explain yourself. If the code comes back allowing the sale and confirming the buyer is on the list, then it’s on law enforcement to follow up. It’s really easy for the FBI to issue a BOLO (be on the look out) that subject X just bought an AR-15 at such and such a place. This in itself will discourage lone wolf terror.
Constitutional rights like the right to bear arms, the right not to be subjected to illegal search and seizure, the right to not self-incriminate, and the right to due process–you know, the Second, Fourth, Fifth and Sixth Amendments in the Bill of Rights–are pretty important. The government should not so easily dismiss them in the quest to “do something.”