By amica jeffersoni
We are missing the point. MIAC and DHS have released reports such as “The Modern Militia Movement” and the “Domestic Extremism Lexicon,” which have targeted such groups as antiabortionists, Constitutionalists, military veterans, and supporters of Ron Paul and third party Presidential candidates as potential dangerous terrorists. Yes, it’s true that a few of us have been roughed up during airport security screenings and police traffic stops. But that is not the point. These reports are a tool, a means to a larger end.
If HR 2159 is passed, those who dare to openly question their government will not be able to obtain a firearm from a federally licensed dealer.
On the surface, the goal of this bill is laudable--who wouldn’t want to deny firearms and explosives to dangerous terrorists? This bill would amend the US Code, expanding the discretionary rights of the Attorney General to “deny the transfer of a firearm…if…the transferee is known (or appropriately suspected) to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism.” Definitions aside, how does the government determine who is a terrorist?
Before we answer this question it is important to understand how a person obtains a firearm through a federally licensed dealer. These kind of purchases can only occur in the United States after the applicant submits to a criminal background check. Persons federally licensed to sell firearms can access the National Instant Criminal Background Check System (NICS), a database maintained by the FBI. The NICS fact sheet makes this appear to be--pardon the constitutional pun--a well regulated database. Most checks occur within thirty seconds. Those checks which result in denial go automatically to a NICS Examiner who will make a determination within three business days. If still denied, the applicant still has the right to appeal this denial. In nearly all cases--whether the applicant was approved or denied--NICS will destroy all documentation related to the transaction by the end of the next business day. (Unsuccessful applicants, if their denial is overturned, may choose to have their documentation retained to prevent future denials). This is not only for security purposes; it is to prevent the federal government from maintaining a national gun registry, which many gun owners strenuously oppose.
Where does the FBI obtain the information needed to decide who can legally acquire a gun? According to the NICS fact sheet, this can come from databases such as the Interstate Identification Index, the NICS Index, and the National Crime Information Center (NCIC). Let us begin with the NCIC. According to the Electronic Privacy Information Center (EPIC), this is the largest criminal justice database in the United States. This database not only contains information about crimes and suspected criminals, it also lists information about persons with outstanding warrants, missing persons, stolen vehicles, and, yes, suspected terrorists. Trouble is, the information contained in the NCIC is not always accurate. Many cases of false arrest and even imprisonment--sometimes involving the same individual--have resulted from incorrect information contained in this database. This is in violation of the Privacy Act of 1974 which requires the maintenance of “all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.” Worse yet, in 2003, the Justice Department moved to exempt the NCIC from the accuracy reporting requirements of the Privacy Act. At that time, the Electronic Privacy Information Center (EPIC) conducted an online petition drive to force the Justice Department to reestablish these requirements of accuracy; it was signed by 87 organizations and 3,000 individuals. But I have been unable to determine whether the petition had any effect, and I leave it to your imagination to decide if the Justice Department and the FBI concern themselves any more today with our civil liberties than they did in 2003.
If HR 2159 passes, the NCIC would not be the only FBI database which could be consulted by the NICS in deciding who might obtain a gun. The FBI established the Terrorist Screening Database (TSDB) in response to Homeland Security Directive 6, one of the famous presidential directives criticized by Ron Paul as a form of unconstitutional lawmaking. The FBI describes the TSDB as a “one stop shopping” database which law enforcement at all levels can use. This database contains names of both international and domestic terrorists, and it is estimated by the ACLU and the Department of Justice that over one million names are now on this list--a number which stretches credulity to say the least. Indeed, in May, 2009, the Justice Department released a report stating that 24,000 names on the TSDB were retained “without proper or current justification.”
Where do reports such as “The Modern Militia Movement” and the “Domestic Extremist Lexicon” fit into all this? The first report was produced by a fusion center called the Missouri Information and Analysis Center (MIAC). Fusion centers are the latest innovation of law enforcement in sharing information among many agencies. Partner agencies of many fusion centers include federal, state, and local law enforcement, but also agencies such as health departments, universities, fire departments, and the military. The FBI and Homeland Security are part of many if not all fusion centers, so one can be sure that faulty information from the NCIC, the TSDB-- along with profiling information from reports by MIAC and Janet Napolitano--are being fed into these vast, secretive databases. These interjurisdictional databases are supposed to be regulated by the Code of Federal Regulations (28 CFR part 23), which concerns information collected about persons engaged in political, religious and social activities. Such information can only be collected if there is “reasonable suspicion” that a person is “involved in criminal conduct or activity,“ a control guaranteed by the Fourth Amendment, and also places requirements on how that information is to be shared among agencies. But as it stands now, there is really no way to decide if constitutional guidelines are being followed, because there is no federal or state agency empowered to oversee the activities of the fusion centers. Because the FBI has a hand in most fusion centers and shares information with a variety of sources through them, it would then be difficult to determine the ultimate source of the information used to deny a person a handgun under HR 2159, whether because of faulty reporting or unfair profiling by the DHS.
For those who are denied a firearms license under this bill, “any information on which the Attorney General relied on for this determination may be withheld from the petitioner if the Attorney General determines that disclosure of the information would likely compromise national security.” If a person is suspected of being a terrorist, then, the right of an appeal would be largely eliminated.
Given these conditions of information gathering, sharing, and profiling among FBI and other government databases, it is hard not to see HR 2159 as the ultimate instrument of tyranny. Given their secretive nature, it is nearly impossible to tell if the FBI, DHS, or the fusion centers are following the Constitution or the Privacy Act of 1974. Given the Attorney General’s ability to withhold information concerning those who have been denied a firearm, it is hard to see what rights a suspected “terrorist” might have in regard to the acquisition of a gun. Under the conditions imposed by this bill, many who might have purchased a firearm from a licensed federal dealer will buy from the secondary market, or may forgo legal purchasing altogether.
This is not merely gun control. HR 2159 targets those who value the Second Amendment who also openly challenge the government. Not wishing to be labeled as terrorists, will lawful dissenters choose silence, rather than lose their ability to purchase a firearm? Will passage of this bill amount to a suppression of speech, or only a slowing of it, as our minds succumb to the chill of fear?
References
HR 2159:
http://www.opencongress.org/bill/111-h2159/show
Report, “The Modern Militia Movement”:
http://www.scribd.com/doc/13290698/The-Modern-Militia-MovementMissouri-MIAC-Strategic-Report-20Feb09-
Report, “Domestic Extremism Lexicon”:
http://www.fas.org/irp/eprint/lexicon.pdf
FBI’s National Instant Background Check (NICS) fact sheet:
http://www.fbi.gov/hq/cjisd/nics/nicsfact.htm
Electronic Privacy Information Center, Online Petition to Require Accuracy for NCIC:
http://epic.org/privacy/ncic/
Privacy Act of 1974:
http://epic.org/privacy/laws/privacy_act.html
FBI’s Terrorist Screening Database (TSDB) FAQ:
http://www.fbi.gov/terrorinfo/counterrorism/faqs.htm
ACLU’s Terrorist Watch List Counter:
http://www.aclu.org/privacy/spying/watchlistcounter.html
Justice Department report: 24,000 names on TSDB list without justification:
http://www.usdoj.gov/oig/reports/FBI/a0925/final.pdf
Congressional Research Service, “Fusion Centers: Issues and Options for Congress.”
http://www.fas.org/sgp/crs/intel/RL34070.pdf
Maryland Coordination and Analysis Center (MCAC) fusion center website (see list of MCAC partner agencies):
http://www.mcac-md.gov/
Code of Federal Regulations, 28 CFR 23.20:
http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=14e8514960058e4223f57e3cb933acfb&rgn=div8&view=text&node=28:1.0.1.1.24.0.4.4&idno=28
ACLU: “What’s Wrong with Fusion Centers?”
http://www.aclu.org/privacy/gen/32966pub20071205.html
Friday, July 31, 2009
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