The Washington PostDemocracy Dies in Darkness

Democrats’ misleading claims about closing the no-fly list ‘loophole’

(Sen. Dianne Feinstein (D-Calif.), speaking on Capitol Hill.  Photo by Chip Somodevilla/Getty Images)

“If you’re too dangerous to board a plane, you’re too dangerous to buy a gun. Unfortunately, that commonsense idea failed to attract enough votes to pass the Senate.”

–Sen. Dianne Feinstein (D-Calif.), news release, Dec. 3, 2015 

“Then came Dianne Feinstein’s amendment — an amendment so clear, so straight forward, that there really is no excuse. Those who are on the no fly list — the terrorist watch list — would have been prohibited from purchasing firearms in the United States under the Feinstein amendment.”

–Sen. Richard J. Durbin (D-Ill.), news briefing, Dec. 8, 2015

The debate over whether known or suspected terrorists should be able to buy guns has gained renewed attention in response to the mass shooting in San Bernardino, Calif.

The phrase, “If you’re too dangerous to board a plane, you’re too dangerous to buy a gun,” has been used to explain provisions in the February 2015 amendment introduced by Feinstein in the Senate, and Rep. Peter King (R-N.Y.) in the House. This message has been repeated by other top Democrats, including Hillary Clinton on the campaign trail and President Obama in his weekly address, calling on Congress to close the so-called “loophole” that allows individuals listed on the federal no-fly list to buy firearms or explosives.

The Senate rejected the amendment 45-54, largely along party lines. But the effort could continue on the state level, such as Connecticut Gov. Dannel P. Malloy’s announcement that he would sign an executive order banning people on federal terrorism watch lists from purchasing guns in the state. The Fact Checker obviously takes no stance on the proposal.

Feinstein’s proposal was more broad-reaching and nuanced than the catchy phrase that continues to be repeated. So we explored the provisions in detail.

The Facts

People included in the “no fly” list, the database that the Transportation Security Administration uses to screen passengers, are deemed a threat to commercial aviation or national security. This list is a subset of a larger watch list, the FBI’s Terrorist Screening Center’s consolidated Terrorist Watchlist. The Terrorist Watchlist also includes the Selectee list, the FBI’s Terrorist Screening Database and some individuals found in the National Counter Terrorism Center’s Terrorist Identities Datasmart Environment (TIDE).

The government uses a “reasonable suspicion” standard to nominate and include someone in the Terrorist Watchlist. As such, the government generally has not used a person’s inclusion on the watch list to automatically deny certain actions, according to a May 2010 report by the Government Accountability Office — including buying a gun, prohibiting the person from entering the United States, or even boarding a plane.

Under current federal law, membership in a terrorist organization or being listed in one of the watch lists does not stop someone from buying a gun. If a person on a watch list tries to buy a gun, the FBI is notified. There has to be another factor that disqualifies the person from buying a gun under federal or state law, such as a felony conviction or illegal immigration status.

While many Democratic lawmakers refer to the Feinstein amendment as the tool to close the no-fly list “loophole,” the bill was not directly tied to the no-fly list. Instead, it applied to people in the larger consolidated Terrorist Watchlist.

As our friends at found, there were about 800,000 people on the Terrorist Watchlist as of September 2014, according to Terrorist Screening Center Director Chris Piehota’s testimony to the House committee. Among them, about 8 percent (64,000 people) were on the no-fly list and 0.8 percent (6,400) of the total number of people on the watch list were Americans (U.S. citizens or permanent legal residents) on the no-fly list, Piehota said.

The Feinstein amendment, called the Denying Firearms and Explosives to Dangerous Terrorists Act of 2015, doesn’t automatically ban people on the no-fly list from buying a gun. Instead, it gives discretion to the attorney general to deny the sale or transfer of firearms and explosives to known or suspected terrorists.

If a person is on the Terrorist Watchlist, the DOJ would be pinged and the attorney general would decide whether the person “is known (or appropriately suspected) to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources for terrorism,” and whether there is “reasonable belief” that the weapon would be used in connection with terrorism.

It’s important to note that the Department of Justice proposed similar legislative language in 2007 in the George W. Bush administration. According to the Government Accountability Office, that proposal to Congress would have provided the attorney general with “discretionary authority to deny the transfer of firearms or explosives to known or suspected ‘dangerous terrorists.'” Supporters of this bill called it the “Terror Gap” proposal.

“To be perfectly clear here, the Justice Department obviously takes every step possible to keep firearms and other dangerous weapons out of the hands of al-Qaida and other terrorist organizations,” DOJ spokesman Dean Boyd was quoted in an April 2007 article about the bill in New Jersey’s The Record. “However, this legislation is specifically designed to address the issue of firearms transfers to individual suspects who may be on a watch list.”

Critics say tying a gun ban directly to names on the Terrorist Watchlist, and specifically the no-fly list, could violate Second Amendment rights because it’s unclear how people are added to the list, and whether they truly belong there.

The American Civil Liberties Union has sued the government over the no-fly list, on behalf of U.S. citizens and permanent residents who couldn’t fly because they were on the list without being told why they were on it, or being given a “reasonable opportunity to get off it.”

The Intercept in 2014 obtained the National Counterterrorism Center’s 2013 Watchlisting Guidance, which revealed the government was allowed to designate individuals as representatives of terror organizations “without any evidence they are actually connected to such organizations; it gives a single White House official the unilateral authority to place entire ‘categories’ of people the government is tracking onto the No Fly and selectee lists.”

“Not even death provides a guarantee of getting off the list,” the Intercept reported, and the process of getting off the watch list is “simple yet opaque.”

It’s not clear how many people on the no-fly list have attempted and succeeded in purchasing guns. There were people on the Terrorist Watchlist who were involved in firearm or explosives background checks 2,233 times from 2004 to 2014. A March 2015 GAO analysis at the request of Feinstein found that out of the 2,233 times, 91 percent (2,043) of the transactions were allowed to proceed, and 190 were denied. (The three-page analysis is embedded at the end of this fact-check.) We requested a breakdown of the number of people who were on the no-fly list, but the GAO said it was not able to share the information publicly because the TSA considers the no-fly list numbers sensitive information.

The Los Angeles Times editorial board, which opposed the Feinstein proposal, noted that her bill would not have affected the San Bernardino attackers, because “neither of them was on the watch list, at least as far as has been reported.” And there is no available information on whether any of the weapons purchased by people on the watch list from 2000 to 2014 were used in a crime, or an act of terrorism, according to the editorial board.

CQ Roll Call reported that Democrats have publicly referred to the smaller, no-fly list rather than the larger, consolidated Terrorist Watchlist. We analyzed statements by various Democratic politicians, and found this has been the case.

A spokesperson for Durbin said referring to a no-fly list in connection with the Feinstein bill is a shorthand description of the provisions: “It’s a rhetorical point being made: Why should a suspected terrorist be able to purchase firearm in this country? That’s what we’re addressing in this bill.” The DOJ instead would create a new list, which may or may not be the same as the current Terrorist Watchlist, the spokesperson said.

Ashley Schapitl, Feinstein’s spokeswoman, noted the no-fly list is a subset of the FBI Terrorist Watchlist Database. We asked her why the rhetoric has focused on this particular list, rather than making it clear that the bill is more broad-ranging. Schapitl noted that when Feinstein has, indeed, explained the nuances of the bill in detail in the past, and pointed to two examples.

“The No-Fly list is much more relatable to the average person,” Schapitl said. “The average person knows what the No-Fly list is and what it means to be on it, as opposed to the Terrorist Screening Database. The substance of the bill and materials distributed to media and the public always note that the broader list is used.”

The Pinocchio Test

The Denying Firearms and Explosives to Dangerous Terrorists Act of 2015 would have given the discretion to the attorney general and DOJ to decide whether or not to deny the sale and transfer of firearms and explosives to people on the Terrorist Watchlist. It also does not immediately ban someone on a no-fly list, or even the broader Terrorist Watchlist, from buying a gun.

We advocate precise and accurate language that minimizes public confusion. In this case, politicians are focusing on the specific no-fly list when referring to Feinstein’s amendment. But the actual provisions in the bill were more broad-reaching, and the provisions were more nuanced than the catchy phrase: “If you’re too dangerous to board a plane, you’re too dangerous to buy a gun.” This is the language that Feinstein has used, and that her fellow Democratic lawmakers, Hillary Clinton on the campaign trail and also President Obama have repeated.

But such phrasing lacks context and doesn’t portray the full impact of the bill — and thus, earns Two Pinocchios.

Two Pinocchios

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GAO No Guns for Terrorists March 6 2015 Letter