In order to participate in the GunBroker Member forums, you must be logged in with your GunBroker.com account. Click the sign-in button at the top right of the forums page to get connected.
Ashcroft's Words Clash on background Checks
Josey1
Member Posts: 9,598 ✭✭
Ashcroft's Words Clash With Staff on Checks
By FOX BUTTERFIELD
ongressional testimony by Attorney General John Ashcroft last December that the F.B.I. could not legally use records of gun background checks to investigate terrorism suspects conflicted with a formal opinion by his own legal staff, a report issued yesterday by the General Accounting Office shows.
Advertisement
In testimony to the Senate Judiciary Committee on Dec. 6, Mr. Ashcroft defended his policy of refusing to allow the Federal Bureau of Investigation to check its records to determine whether any of the 1,200 people detained after Sept. 11 had bought guns. Mr. Ashcroft asserted that the law which created the National Instant Check System for gun purchases "outlaws and bans" use in criminal investigations.
Mr. Ashcroft said the law "indicates that the only permissible use for the National Instant Check System is to audit the maintenance of that system."
But the General Accounting Office report contains an opinion by the Justice Department's Office of Legal Counsel, dated Oct. 1, which seems to allow the checks under some conditions. "We see nothing in the NICS regulations that prohibits the F.B.I. from deriving additional benefits from checking audit log records as long as one of the genuine purposes" is auditing the use of the system, the report says.
Moreover, the Office of Legal Counsel added, it was further convinced such checks were legal because the bureau of investigation had been "using this method" all along.
The opinion was written after the bureau asked the Justice Department for permission to examine the records on background checks to see if any detainees had purchased guns.
It is unclear who in the Justice Department read the opinion. But sometime in October, the department rejected the F.B.I.'s request.
Mr. Ashcroft is a strong supporter of gun owners' rights and as a senator from Missouri had voted to sharply limit the use of the background check records.
A Justice Department official, speaking on the condition of anonymity, said there was actually "no disagreement" between the position of the Office of Legal Counsel and Mr. Ashcroft's testimony.
He offered no explanation for the apparent discrepancy between the attorney general's testimony and the report of the legal staff. "I am telling you that the O.L.C.'s view is consistent with the attorney general's," the official said.
The report was released by Senator Richard J. Durbin, Democrat of Illinois, a member of both the Senate Judiciary and Intelligence Committees. "I can't tell whether the attorney general forgot or just decided not to tell us the whole story," Senator Durbin said about the difference between Mr. Ashcroft's testimony and the conclusions of his legal staff.
"But the attorney general's position does not help the war on terrorism," Senator Durbin added. "He is turning his back on a valuable tool of law enforcement."
The legal staff's opinion on the checks was contained in a broader G.A.O. report, at Mr. Durbin's request, on the issue of when the government can destroy the background checks. The report warned that if a policy proposed by Mr. Ashcroft went into effect, to destroy the gun background check records within one day after a sale is approved, instead of the current 90 days, it would be virtually impossible for law enforcement authorities to get guns back from felons and illegal aliens who had been mistakenly approved to buy them.
The G.A.O. found that 97 percent of the guns retrieved from illegal purchasers after they had been incorrectly approved to buy guns during the period from July 2001 to January 2002 would not have been detected under Mr. Ashcroft's proposed next-day destruction policy.
People who apply to buy a gun from a federally licensed dealer must fill out an application which is then sent to the F.B.I. or state police agencies. The agencies have three days to check whether the purchaser falls into any of the categories of people barred from buying guns.
The records generated in these searches are retained for 90 days by the F.B.I., largely as a way to verify whether the system is working properly. But, as the opinion by the Office of Legal Counsel stated, the records can also be used in investigations where the F.B.I has evidence the purchaser is in a prohibited category, since this would reveal the system had not worked correctly.
F.B.I. officials have contended they need the records for at least 90 days.
The opinion by the Office of Legal Counsel said, "Assisting criminal investigations generally is not one of the purposes for which the NICS regulations authorize the F.B.I. to use audit log records. Nevertheless, we see nothing in the NICS regulations that prohibits the F.B.I. from deriving additional benefits from checking audit log records," as long as the F.B.I. is using the records for a legitimate purpose, like seeing whether a prohibited person was allowed to purchase a gun.
But Mr. Ashcroft, in answers to questions from several senators, made no reference to this view. He told Senator Charles E. Schumer, Democrat of New York, "It's my belief that the United States Congress specifically outlaws and bans the use of the NICS - NICS database, that's the use of approved purchase records for weapons checks on possible terrorists or anyone else."
http://www.nytimes.com/2002/07/24/politics/24GUNS.html
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
By FOX BUTTERFIELD
ongressional testimony by Attorney General John Ashcroft last December that the F.B.I. could not legally use records of gun background checks to investigate terrorism suspects conflicted with a formal opinion by his own legal staff, a report issued yesterday by the General Accounting Office shows.
Advertisement
In testimony to the Senate Judiciary Committee on Dec. 6, Mr. Ashcroft defended his policy of refusing to allow the Federal Bureau of Investigation to check its records to determine whether any of the 1,200 people detained after Sept. 11 had bought guns. Mr. Ashcroft asserted that the law which created the National Instant Check System for gun purchases "outlaws and bans" use in criminal investigations.
Mr. Ashcroft said the law "indicates that the only permissible use for the National Instant Check System is to audit the maintenance of that system."
But the General Accounting Office report contains an opinion by the Justice Department's Office of Legal Counsel, dated Oct. 1, which seems to allow the checks under some conditions. "We see nothing in the NICS regulations that prohibits the F.B.I. from deriving additional benefits from checking audit log records as long as one of the genuine purposes" is auditing the use of the system, the report says.
Moreover, the Office of Legal Counsel added, it was further convinced such checks were legal because the bureau of investigation had been "using this method" all along.
The opinion was written after the bureau asked the Justice Department for permission to examine the records on background checks to see if any detainees had purchased guns.
It is unclear who in the Justice Department read the opinion. But sometime in October, the department rejected the F.B.I.'s request.
Mr. Ashcroft is a strong supporter of gun owners' rights and as a senator from Missouri had voted to sharply limit the use of the background check records.
A Justice Department official, speaking on the condition of anonymity, said there was actually "no disagreement" between the position of the Office of Legal Counsel and Mr. Ashcroft's testimony.
He offered no explanation for the apparent discrepancy between the attorney general's testimony and the report of the legal staff. "I am telling you that the O.L.C.'s view is consistent with the attorney general's," the official said.
The report was released by Senator Richard J. Durbin, Democrat of Illinois, a member of both the Senate Judiciary and Intelligence Committees. "I can't tell whether the attorney general forgot or just decided not to tell us the whole story," Senator Durbin said about the difference between Mr. Ashcroft's testimony and the conclusions of his legal staff.
"But the attorney general's position does not help the war on terrorism," Senator Durbin added. "He is turning his back on a valuable tool of law enforcement."
The legal staff's opinion on the checks was contained in a broader G.A.O. report, at Mr. Durbin's request, on the issue of when the government can destroy the background checks. The report warned that if a policy proposed by Mr. Ashcroft went into effect, to destroy the gun background check records within one day after a sale is approved, instead of the current 90 days, it would be virtually impossible for law enforcement authorities to get guns back from felons and illegal aliens who had been mistakenly approved to buy them.
The G.A.O. found that 97 percent of the guns retrieved from illegal purchasers after they had been incorrectly approved to buy guns during the period from July 2001 to January 2002 would not have been detected under Mr. Ashcroft's proposed next-day destruction policy.
People who apply to buy a gun from a federally licensed dealer must fill out an application which is then sent to the F.B.I. or state police agencies. The agencies have three days to check whether the purchaser falls into any of the categories of people barred from buying guns.
The records generated in these searches are retained for 90 days by the F.B.I., largely as a way to verify whether the system is working properly. But, as the opinion by the Office of Legal Counsel stated, the records can also be used in investigations where the F.B.I has evidence the purchaser is in a prohibited category, since this would reveal the system had not worked correctly.
F.B.I. officials have contended they need the records for at least 90 days.
The opinion by the Office of Legal Counsel said, "Assisting criminal investigations generally is not one of the purposes for which the NICS regulations authorize the F.B.I. to use audit log records. Nevertheless, we see nothing in the NICS regulations that prohibits the F.B.I. from deriving additional benefits from checking audit log records," as long as the F.B.I. is using the records for a legitimate purpose, like seeing whether a prohibited person was allowed to purchase a gun.
But Mr. Ashcroft, in answers to questions from several senators, made no reference to this view. He told Senator Charles E. Schumer, Democrat of New York, "It's my belief that the United States Congress specifically outlaws and bans the use of the NICS - NICS database, that's the use of approved purchase records for weapons checks on possible terrorists or anyone else."
http://www.nytimes.com/2002/07/24/politics/24GUNS.html
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Comments
By DAVID HO
The Associated Press
7/23/02 6:35 PM
WASHINGTON (AP) -- A Justice Department proposal to purge background-check records of gun buyers after one day would hinder some law enforcement investigations and could allow criminals to obtain and keep weapons, congressional investigators said Tuesday.
Destroying the records of approved sales would make it harder for police to track down and retrieve weapons from criminals who were mistakenly allowed to buy guns, said Laurie Ekstrand, author of the General Accounting Office study of the proposal.
"There would still be some people who get guns and shouldn't have," Ekstrand said. She said the proposal would also limit the ability of investigators to discover if specific individuals banned from buying guns had made purchases.
The Justice Department, in a letter responding to the GAO report, said it is considering solutions for those potential problems, including improving state criminal record keeping systems and retaining firearm dealer identification numbers to track purchases.
Gun purchase files in the National Instant Criminal Background Check System are now kept for 90 days so the FBI can look for fraudulent transactions or mistaken approvals. The system, which is called NICS, electronically checks law enforcement records while gun buyers are waiting to make purchases. Felons, drug users, and people subject to domestic violence restraining orders are among those prohibited from buying guns.
Separately on Tuesday, a bill that would require states and federal agencies to automate their records and add them to the system passed the House Judiciary Committee.
Gun owner groups say keeping the records invades privacy; gun control advocates say more time for auditing is needed to ensure that guns are not be sold to criminals.
Attorney General John Ashcroft said last year that he wanted to balance those concerns by reducing the time records are held to the next business day after a purchase. That proposal has passed administrative hurdles and is ready to go, Ekstrand said.
"Ashcroft could put it in effect any time," she said.
Justice Department spokeswoman Susan Dryden said the proposal is still under consideration.
Sen. Charles Schumer, D-N.Y., asked Ashcroft in December to delay the new rule to review the role of gun background checks in the context of the war on terrorism.
"In a post 9-11 world, the Justice Department's NICS plan is a step in exactly the wrong direction," Schumer said Tuesday. "To put ideological agendas ahead of people's safety is the wrong way to govern."
Gun control advocates agreed.
The GAO report proves that Ashcroft's proposal "undermines the effectiveness of the system" said Amy Stilwell, spokeswoman for the Brady Campaign to Prevent Gun Violence.
Chris Cox, chief lobbyist for the National Rifle Association, said the Justice Department proposal is a good idea and there is no reason for law enforcement to maintain records on lawful Americans based on their commercial purchases. He said the GAO's concerns are unfounded.
"To suggest that law enforcement doesn't have the ability to investigate criminals who obtain guns through NICS is false," Cox said.
On the Net:
National Instant Criminal Background Check System: http://www.fbi.gov/hq/cjisd/nics.htm
Justice Department: http://www.usdoj.gov
National Rifle Association: http://www.nra.org
Brady Campaign: http://www.bradycampaign.org http://www.nj.com/newsflash/washington/index.ssf?/cgi-free/getstory_ssf.cgi?a0832_BC_GunChecks-GAO&&news&newsflash-washington
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878