http://www.nytimes.com/2001/12/06/national/06GUNS.html

Justice Dept. Bars Use of Gun Checks in Terror Inquiry

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.

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.

Copyright 2001 The New York Times Company | Privacy Information

How??????

Paul, read it again.  I'm not sure what you're saying - that Bush wasn't willing to violate the NICS rules in order to see if the suspected and the actual terrorists bought guns?  There is no evidence they USED any guns that I've heard of so far.  And of course the "Violence Policy Center" agenda would be to hope they could find at least one suspected terrorist who bought a gun so that they could use that to advocate for more gun laws.  As it is, they only have a bunch of guys with box cutters, and what they want is a "smoking gun".

It seems like the FBI is using backward reasoning in their argument.



They did not know that any of these people had been approved to buy a gun, they were seeking to determine /whether[/] any of them had.

They evidently didn't have any basis pointing to violations, they wanted to go fishing in NICS:




The "audit logs" are meant to allow process - checking, to see that the system is working properly, or at least that was the rationale used for keeping the records 90 days. In other words, to enable audits of improper denials or delays and incorrect approvals, possibly including those ones where the delay limit was exceeded and the sale should have been allowed by default.

However, the FBI is wanting to use it as a registry, to see whether the detainees might have gotten firearms, whether they used them or not.  This business of "they weren't qualified to be approved, so we need to find out if they are in the system" is just a BS smokescreen the FBI is using.

Those 'groundless fears' that the audit logs would amount to a de facto registry seem to have been prophetic.

Well that's cool.. The sooner they destroy NICS records, the better.

Isn't it great to see the Bush  administration  pissing off former clinton anti-gun knuckle draggers?

Paul - yeah I don't understand where your comment came from either.

but I thought Bush was involved in a secret conspiracy to take away our gun rights? [shock] [whacko]

Yea! Chalk one up for the good guys! If Bush cannot find a legitimate reason for going fishing in the NICS logbooks now, when could he ever propose such a thing?

Eric The(EveryVote[u]Was[/u]Counted,ExceptThoseFromActiveMilitary!)Hun[>]:)]