“It’s already the law right now. If someone is known or suspected as a terrorist, they cannot just walk in and buy a firearm. They have a long waiting period that actually kicks in that the system itself will kick them out. The FBI is pinged on that, and they get some options to be able to deal with it. So it is already current law. So there’s a lot of pushback to say all these known terrorists can just walk in and buy a gun at a gun store. That is not correct. They are already held back and already cannot walk in and buy a gun in a gun store right now.”

–Sen. James Lankford (R-Okla.), interview on CNN’s “Situation Room,” June 16, 2016

A reader flagged us this claim by the junior senator from Oklahoma, after we fact-checked a series of claims from Senate Democrats relating to assault weapons and gun policy.

In an interview with Wolf Blitzer, Lankford was asked how he would vote on gun legislation introduced in the Senate — in particular, efforts to prevent suspected terrorists from purchasing firearms. Lankford answered that the system to do so already exists.

Later in the interview, Lankford said again in reference to suspected terrorists attempting to buy guns: “They should not be able to do that. But it’s current law right now that that person cannot walk in and do that. The FBI is notified as soon as they are, and there’s this long wait protection put into process before they could actually purchase that weapon.” Is he correct?

The Facts

Following the Orlando mass shooting during which the gunman claimed allegiance to the Islamic State, the Senate revived the debate over whether a suspected terrorist should be able to buy a gun. On Monday evening, the Senate voted on four gun control proposals that were doomed to fail before voting even began. Versions of the bills proposed in the Senate already failed in December 2015, following the shooting by Islamic State sympathizers in San Bernardino, Calif.

We previously examined Democrats’ rhetoric in support of a gun-sales ban on those on the “no fly” list, a database that the Transportation Security Administration uses to screen passengers who are deemed a threat to commercial aviation or national security. The “no fly” list is a subset of a larger watch list, the FBI’s Terrorist Screening Center’s consolidated Terrorist Watchlist.

The FBI’s consolidated Terrorist Watchlist was created in 2003, in response to the 9/11 attacks. According to the FBI, the database allows law enforcement to support “the ability of front-line screening agencies to positively identify known or suspected terrorists trying to obtain visas, enter the country, board aircraft, or engage in other activity.” The Terrorist Watchlist 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 Orlando shooter was on the watchlist in 2013 and 2014, but was removed from the list after FBI investigators closed their investigation.

Lankford’s staff said he was referring to existing FBI involvement in gun purchases, through which the FBI is flagged if someone on the Terrorist Watchlist is notified. Indeed, the FBI is notified if a person on a watch list tries to buy a gun, if the person’s name is listed on a list called the Known or Appropriately Suspected Terrorist file (a subset of the larger consolidated list, according to the FBI).

With instant background checks, a person with a clean record in theory could walk into a gun store and be approved within minutes. However, if the person is on the suspected terrorist file, the FBI can delay the purchase for up to three days. According to a May 2013 Congressional Research Service report, the FBI has 72 hours to respond to the federally licensed dealer as to whether they can proceed with the sale.

The government uses a “reasonable suspicion” standard to nominate and include someone in the Terrorist Watchlist. Belonging to a terrorist organization, or being listed on one of the watch lists, does not automatically stop someone from buying a gun. 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.

During a December 2015 Senate Judiciary Committee Oversight Hearing, FBI Director James Comey repeatedly confirmed to Republican and Democratic senators that the FBI can’t ban someone on the Terrorist Watchlist from purchasing a gun, just for being on the list.

After a hold is placed on the sale, there has to be another qualifier under the law for the FBI to be able to ban the sale, Comey said. If the purchase is made at a gun show or through an Internet sale, the FBI is not alerted, Comey said. See this exchange:

Sen. Richard Durbin (D-Ill.): If someone on the no-fly list walks into is a licensed firearms dealer in the United States, that in and of itself is not a prohibition against that person buying a firearm?
Comey: Correct.
Durbin: So even if that person is suspected to be a terrorist, they could purchase the firearm and leave with it, though your agents may then follow them or investigate them or keep an eye on them because of that purchase.
Comey: That is correct. We have three days to review the background. And so a hit — if someone walks in and they’re on the no-fly list, we’ll immediately be notified. We’ll have three days to figure out whether there is some prohibition under the law that allows us to stop the transaction. If not, they will walk out with the gun if the dealer transfers it.
Durbin: Absent some other disqualifier, the fact that they’re on the no-fly list is not enough — sufficient basis to deny the sale, is that correct?
Comey: That’s correct.

Thus people on the Terrorist Watchlist still successfully purchase firearms. A March 2016 Government Accountability Office analysis looked at 2,477 times that people on the Terrorist Watchlist who were involved in firearm or explosives background checks in 2004 to 2015. Of the 2,477 times, 91 percent (2,265) of the transactions were allowed to proceed, and 212 were denied. Some sales may have been processed and approved within 24 hours; the FBI purges records if the sale was approved within 24 hours. So when Lankford says the person “waits a long time,” he’s referring to a hold of up to 72 hours–but it could be less than 24 hours.

Sen. Diane Feinstein’s (D-Calif.) legislation would give authority to the attorney general to decide whether or not a suspected terrorist could buy a gun. Anyone who was subjected to a federal terrorism investigation within five years of the attempted gun purchase would be flagged in the background check system, and the Justice Department would be able to review those cases. Sen. John Cornyn (R-Tex.) proposed similar changes, but required a three-day waiting period for law enforcement to conduct an investigation.

On June 16, the Justice Department released a statement in support of the Feinstein amendment, saying it would give the department “an important additional tool to prevent the sale of guns to suspected terrorists by licensed firearms dealers while ensuring protection of the department’s operational and investigative sensitivities.”

It’s important to note that the Department of Justice proposed similar legislative language in 2007 during 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.

“It is a fact that if someone is a known or suspected terrorist, they cannot walk into a store, buy a firearm and immediately walk out with that gun. It may take several days for the process to play out, because the FBI has the flexibility to run additional checks that might turn up a reason to deny the purchase,” Lankford spokesman DJ Jordan said. “But they cannot walk in and walk out with a purchase immediately that day. This is the point Senator Lankford was making.”

The Pinocchio Test

Lankford is correct that the FBI can get involved if someone on the Terrorist Watchlist tries to buy a gun, and that there is a waiting period during which the FBI can investigate and prevent the sale. But Lankford exaggerates the FBI’s authority to take action after the agency is notified, and the time it takes for the FBI to approve the sale.

Under current law, membership in a terrorist organization or being on one of the watch lists does not stop someone from buying a gun. 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. The FBI can delay the sale up to three days — not necessarily a “long” time, especially when some sales may be approved within 24 hours. But without a second qualifier, the FBI can’t ban the sale or transfer of the firearm.

Moreover, 91 percent of attempted transactions by people on the Terrorist Watchlist over 10 years were approved – which calls into question Lankford’s characterization that people on the watch list “cannot walk in and do that” under current law. Certainly, a rather large percentage can get a weapon with only minimal delay.

Two Pinocchios

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