[Senate Hearing 111-1079]
[From the U.S. Government Printing Office]
S. Hrg. 111-1079
TERRORISTS AND GUNS: THE NATURE OF THE THREAT AND PROPOSED REFORMS
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
MAY 5, 2010
__________
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana GEORGE V. VOINOVICH, Ohio
CLAIRE McCASKILL, Missouri JOHN ENSIGN, Nevada
JON TESTER, Montana LINDSEY GRAHAM, South Carolina
ROLAND W. BURRIS, Illinois
EDWARD E. KAUFMAN, Delaware
Michael L. Alexander, Staff Director
Kevin J. Landy, Chief Counsel
Charles F. Martel, Counsel
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Ivy A. Johnson, Minority Deputy General Counsel
Luke P. Bellocchi, Minority Counsel
Trina Driessnack Tyrer, Chief Clerk
Patricia R. Hogan, Publications Clerk and GPO Detailee
Laura W. Kilbride, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Lieberman............................................ 1
Senator Collins.............................................. 3
Senator Graham............................................... 16
Prepared statements:
Senator Lieberman............................................ 39
Senator Collins.............................................. 41
WITNESSES
Wednesday, May 5, 2010
Hon. Frank R. Lautenberg, a U.S. Senator from the State of New
Jersey......................................................... 5
Hon. Peter T. King, a Representative in Congress from the State
of New York.................................................... 7
Hon. Michael R. Bloomberg, Mayor, City of New York............... 10
Hon. Raymond W. Kelly, Police Commissioner, City of New York..... 12
Daniel D. Roberts, Assistant Director, Criminal Justice
Information Services Division, Federal Bureau of Investigation,
U.S. Department of Justice..................................... 24
Eileen R. Larence, Director, Homeland Security and Justice, U.S.
Government Accountability Office............................... 26
Sandy Jo MacArthur, Assistant Chief, Office of Administrative
Services, Los Angeles Police Department........................ 29
Aaron Titus, Privacy Director, Liberty Coalition................. 31
Alphabetical List of Witnesses
Bloomberg, Hon. Michael R.:
Testimony.................................................... 10
Prepared statement........................................... 48
Kelly, Hon. Raymond W.:
Testimony.................................................... 12
Prepared statement........................................... 50
King, Hon. Peter T.:
Testimony.................................................... 7
Prepared statement........................................... 46
Larence, Eileen R.:
Testimony.................................................... 26
Prepared statement........................................... 55
Lautenberg, Hon. Frank R.:
Testimony.................................................... 5
Prepared statement........................................... 44
MacArthur, Sandy Jo:
Testimony.................................................... 29
Prepared statement........................................... 69
Roberts, Daniel D.:
Testimony.................................................... 24
Prepared statement........................................... 52
Titus, Aaron:
Testimony.................................................... 31
Prepared statement........................................... 75
APPENDIX
American Civil Liberties Union, prepared statement............... 87
Responses to post-hearing questions submitted for the Record
from:
Mayor Bloomberg.............................................. 97
Mr. Kelly.................................................... 101
Mr. Roberts.................................................. 103
Ms. MacArthur................................................ 110
Mr. Titus.................................................... 111
TERRORISTS AND GUNS: THE NATURE OF THE THREAT AND PROPOSED REFORMS
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WEDNESDAY, MAY 5, 2010
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:16 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Joseph I.
Lieberman, Chairman of the Committee, presiding.
Present: Senators Lieberman, Pryor, Burris, Kaufman,
Collins, and Graham.
OPENING STATEMENT OF CHAIRMAN LIEBERMAN
Chairman Lieberman. Good morning. The hearing will come to
order. We welcome the witnesses. Mayor Michael Bloomberg,
Commissioner Raymond Kelly, I know you were held up in
Washington traffic. I am sure this never happens in New York
City. But I do want to just assure you that the last person to
appear late at a hearing because she was held up in Washington
traffic was Secretary Janet Napolitano. So there is good
precedent here.
We thank all the witnesses for being here today. Of course,
I want to begin by extending, on behalf, I am sure, of all the
Members of our Committee and really the entire American family,
our special thanks to Mayor Bloomberg, Commissioner Kelly, and
all who work with you in New York City government and live in
that great city for their grace under pressure, which remains
still about the best definition I know of courage. I'd also
like to thank you for the brilliant law enforcement
investigative work that you and your colleagues in the Federal,
State, and local law enforcement communities did to bring
Faisal Shahzad to justice just 53 hours after his attempted
terrorist attack on Times Square.
This hearing on what Congress and the Federal Government
can do to keep firearms out of the hands of terrorists was
scheduled long ago, but its urgency has certainly been made
clear by the events of the past 4 days.
In fact, our growing understanding of the dimensions of the
plot to attack Times Square certainly should remind us of a
reality that I fear we sometimes forget, which is that global
Islamist extremism terrorists have declared war on America, and
they are attacking our homeland with increasing frequency. In
fact, they have attempted to carry out more than a dozen
attacks on America in just the last year. Most of them have
been stopped before any damage could be done, again, by
extraordinary law enforcement work. But four of the attempted
attacks broke through our homeland defenses, including the
failed attempts on Christmas Day over Detroit and last Saturday
night in New York City.
And here is the fact that I hope will focus our concern and
attention and hopefully motivate our action this morning: The
only two terrorist attacks on America since September 11, 2001,
that have been carried out successfully and taken American
lives were carried out with firearms.
The most lethal was in November of last year when an Army
doctor, Nidal Hasan, opened fire with a semiautomatic pistol at
a processing center at Fort Hood, Texas, killing 13 Americans
and wounding 30 others. Fort Hood was the deadliest terrorist
attack on America since September 11, 2001, and the deadliest
domestic terrorist attack against American troops in the
history of our country. It was carried out by one man with two
guns: An FN 5.7-millimeter pistol and an older Smith and Wesson
revolver.
In June of last year, in an event that not too many people
remember, an American named Carlos Bledsoe, who changed his
name to Abdulhakim Muhammad, shot and killed a U.S. Army
recruiter and seriously wounded another at an Army-Navy
Recruiting Station in Little Rock, Arkansas, simply because
they were wearing the uniform of the U.S. military. He did so
with a SKS semiautomatic rifle.
In other recent cases, homegrown terrorist cells have
stockpiled firearms while planning attacks specifically against
personnel at Fort Dix, New Jersey, and at the Marine Corps Base
in Quantico, Virginia.
Thankfully, again, great law enforcement work stopped both
of those plots. But had these planned attacks succeeded, many
other Americans would surely have lost their lives, as over 160
did in the attacks in Mumbai, India, in November 2008, which
were also carried out largely with firearms.
So the threat we meet to discuss and attempt to prevent is
real. Terrorists armed with semiautomatic and high-powered
weapons can inflict heavy casualties in seconds. While it is
true that homegrown terrorists, which we are seeing
increasingly in this country, are generally--but not always--
less sophisticated than those sponsored and trained overseas by
al-Qaeda and other terrorist groups, the truth is that they may
also be harder to detect and stop, particularly if they are
operating essentially on their own. And the easy availability
of lethal weapons ensures that these homegrown terrorists can
legally obtain sufficient firepower to cause terrible damage.
As Senator Frank Lautenberg, Congressman Peter King, Mayor
Bloomberg, and Commissioner Kelly know and will make clear this
morning, we are simply not doing all we can do to stop
terrorists from buying guns.
The stark fact is that the U.S. Department of Justice (DOJ)
has no authority to block the sale of firearms to suspected
terrorists even when the Department knows they are about to
purchase guns.
This, unfortunately, is not a rare occurrence. The number
of times suspected terrorists have been allowed, with the
government's knowledge, to buy guns in recent years is stunning
and infuriating. This morning, the Government Accountability
Office (GAO) will testify that in the last 6 years, terrorist
suspects, people on watchlists, have tried to buy guns more
than 1,200 times, and in 91 percent of those cases, they did
buy guns. In the other 9 percent, they were stopped because
they were on some other list, such as having had a criminal
record of some kind.
I think most Americans understand and once they hear these
facts certainly will agree that this has to change, and that we
can block terrorists from obtaining guns without compromising
constitutional Second Amendment rights. In fact, a recent
survey done by Republican pollster Frank Luntz showed that over
80 percent of National Rifle Association (NRA) members believe
that suspected terrorists should not be allowed to buy guns.
In 2007, the Bush Administration proposed legislation to
give the Attorney General the discretion to prevent the sale of
firearms to watchlisted terrorists. It was not enacted. Senator
Lautenberg and Congressman King had previously introduced
legislation to do exactly that, and they have introduced that
legislation in this Congress. It is, in my opinion, a
straightforward, bipartisan bill supported by mayors and others
all over the country, but particularly the mayors whose cities
are prime targets of terrorists, including the large, diverse
coalition of mayors that Mike Bloomberg leads. In my personal
opinion, the bill should be enacted as quickly as possible to
close this dangerous loophole before another suspected
terrorist is able to buy firearms legally and use them to kill
Americans.
Senator Collins.
OPENING STATEMENT OF SENATOR COLLINS
Senator Collins. Thank you, Mr. Chairman.
Our Nation remains a target for terrorists. Whether sent
from overseas or radicalized within the United States,
terrorists continue to target innocent men, women, and
children. Their callous disregard for life was on full display
in New York City this past Saturday.
Had it not been for an alert street vendor and the
courageous action of the New York Police Department (NYPD),
many lives would have been lost, and many people would have
been injured.
I applaud the quick and effective investigative work by
Federal, State, and local authorities that led quickly to the
identification and arrest of the suspect who allegedly placed
the car bomb in the midst of Times Square.
This attempted attack reminds us once again that terrorists
are unrelenting in their desire to kill Americans. We cannot
let down our guard, and we must continue to meet this ongoing
threat with strength and resilience.
From Fort Hood to the skies over Detroit and now to Times
Square, our Nation must come to grips with the terrorist
threat, particularly the threat of homegrown terrorism.
An alert citizenry is one of the best defenses against
terrorist attacks. Signs in the New York City subway system
read: ``If You See Something, Say Something.'' The U.S. Capitol
Police ask those of us who work on Capitol Hill to pay close
attention to ``help be the eyes and ears with our local law
enforcement.'' And as we saw in Times Square, an alert citizen
can be our best line of defense against terrorist attacks.
Senator Lieberman and I have introduced bipartisan
legislation that would encourage individuals to report
suspicious activity to the appropriate officials. The
legislation is straightforward: It would protect individuals
from lawsuits when they, in good faith, report suspicious
behavior that may indicate terrorist activity. Our colleague
Peter King has introduced the bill on the House side. Given the
recent events in New York City, I encourage the Senate
Judiciary Committee to pass this important bill.
During the past 8 years, significant resources have been
devoted to the prevention of a terrorist attack using a
biological, chemical, or nuclear weapon. But as recent attacks
have shown, the improvised explosive device (IED) remains the
weapon of choice for most terrorists. Indeed, in 2009 alone,
there were more than 3,700 terrorist incidents involving an IED
worldwide.
The materials used to construct IEDs are ubiquitous. Gas
cans and propane tanks, available at any home improvement
store, allegedly formed the core of the Times Square bomb. When
terrorists can turn items that can be found in an average
family's garage into a weapon of death and destruction, it
underscores the need for intelligence collection to identify
threats as well as the need for vigilance by State and local
authorities, business owners, and all citizens to learn the
warning signs that distinguish legitimate activity from the
precursors to a terrorist attack.
Of course, terrorists can also choose to use firearms, and
that is the issue that brings us here today.
For many Americans, including many Maine families, the
right to own guns is part of their heritage and way of life.
This right is protected by the Second Amendment.
And so this Committee and this Congress face a difficult
issue today: How do we protect the constitutional right of
Americans to bear arms, while preventing terrorists from using
guns to carry out their murderous plans?
Let me note that this dilemma does not arise when we apply
the terrorist watchlist to the purchase of explosives.
One of the more important accomplishments since September
11, 2001, has been the creation of a consolidated terrorist
watchlist based on information from all parts of the
intelligence community and the Federal Bureau of Investigation
(FBI).
Our watchlist system, properly implemented, can be an
effective mechanism for preventing individuals with suspected
terrorist ties from boarding an aircraft. It also alerts law
enforcement and border protection officials to more carefully
screen potential terrorists, and it allows the State Department
to revoke visas of foreign individuals with terrorist ties who
are attempting to travel to the United States.
But the fact remains that the evidence used to compile the
watchlist is often fragmentary and can be of varying degrees of
credibility. As our late colleague Senator Ted Kennedy
discovered when his name was included, the watchlist can be
inaccurate. It is not, in other words, the equivalent of a
criminal history report. And, indeed, the latest DOJ Inspector
General's report concluded that approximately 35 percent of
those sampled from the list were left on the list based on
outdated information or material unrelated to terrorism.
Incidents of mistaken application of the terrorist
watchlist are very unfortunate, but those errors usually result
only in the restriction of a privilege, such as the right to
board a plane or to travel to the United States from overseas.
The expansion of the watchlist system to potentially deprive
law-abiding Americans of a constitutional right is wholly
different and raises many critical questions.
So as we consider what at first blush seems to be an
obvious step that we should take, we must carefully consider
these questions:
Are appropriate protections included within the
watchlisting process to justify the potential denial of a
constitutional right?
If not, what procedural protections should be afforded
those who are erroneously denied the ability to purchase a
firearm?
What guidelines are needed to constrain the Attorney
General's discretion to prevent law-abiding Americans from
purchasing a firearm?
Let me emphasize that none of us wants a terrorist to be
able to purchase a gun. But neither should we want to infringe
upon a constitutional right of law-abiding Americans.
Thank you, Mr. Chairman.
Chairman Lieberman. Thank you, Senator Collins.
We will begin with Senator Lautenberg and Congressman King
to describe the legislation, and then be honored to hear
responses to this and anything else they want to testify to
from Mayor Bloomberg and Commissioner Kelly.
Senator Lautenberg, you have been a real leader on this.
The bill you have introduced, I want to say for the record, has
been referred to the committee of legislative jurisdiction, the
Judiciary Committee. We are holding this hearing today in the
dispatch of our responsibility to inquire as to the impact
passage of your legislation could have on our homeland
security. So I thank you very much for being here, and we
welcome your testimony now.
TESTIMONY OF HON. FRANK R. LAUTENBERG,\1\ A U.S. SENATOR FROM
THE STATE OF NEW JERSEY
Senator Lautenberg. Thanks very much, Mr. Chairman, Ranking
Member Collins, and Members of the Committee. I want to offer
my welcome to Mayor Bloomberg and to Commissioner Kelly. Each
of them has enormous responsibility, conducted very well across
the river from New Jersey, and one cannot help but note, as has
been done amply, I think, by Senator Collins as well as
yourself, the incredibly brilliant police work that went on to
get this guy before he was able to leave the country. It was
fantastic.
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\1\ The prepared statement of Senator Lautenberg appears in the
Appendix on page 44.
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Mr. Chairman, I want to thank you for holding this critical
hearing, and I would like to thank my fellow witnesses for
joining us here today. And I thank Representative Peter King
for introducing the legislation in the House.
This past Saturday, we were reminded yet again that
terrorists are determined to kill Americans on American soil.
This story is now a little old, but shocking enough to further
review it. It is so hard to believe. An empty sport utility
vehicle (SUV) packed with explosives and a timing device was
discovered in Times Square, one of the most visited places in
America.
The terrorist behind this plot planned to set off an
explosion and murder as many innocent Americans as possible. We
were fortunate that this makeshift car bomb did not explode
this time.
But as officials claim they will do everything they can to
stop a future terror attack, a loophole in our guns and
explosives laws gives terrorists the upper hand.
This loophole--known as the ``terror gap''--allows known
and suspected terrorists to purchase military-grade explosives
and firearms legally in our country. And mindful of what
Senator Collins said so clearly, we do not want to rob people
of a constitutional right, but I kind of do not like saying but
I am going to do it, and that is, to err on the side of
protection is the chance sometimes we have to take. And it can
be challenged in our court system without a problem.
As GAO will testify today, just last year, a person on the
terror watchlist was cleared to buy explosives by the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (ATF). Well, how can
that be? To put it simply, right now the Federal Government
cannot block the sale of explosives or firearms to someone
simply because they are on the terrorist watchlist. It sounds
pretty frightening to me. It defies common sense, but it is the
law of the land.
In fact, some of the very same explosive agents that are
used to make roadside bombs in Iraq and Afghanistan are
available for sale legally to known and suspected terrorists
here in our country.
But we know that terrorists do not only use explosives,
firearms are also a weapon of choice. In fact, the U.S. citizen
who was arrested at John F. Kennedy (JFK) Airport in connection
with the Times Square car bomb had a loaded gun in the car as
he drove to the airport. And if you look at Mumbai and other
recent terrorist attacks, we see that assault weapons and small
explosives are being used more and more times. The fact is that
they are able to compact these horrible weapons into smaller
packages, and that is why we need to change this law.
Convicted felons, domestic abusers, and the mentally ill
are forbidden from buying guns and explosives, but nothing in
our laws keeps fanatics on the terror watchlist from purchasing
guns and explosives. That is hard to believe, but
unfortunately, it is true. And now this terror gap in our laws
is not some theoretical concept. Not only can documented
terrorists buy firearms legally in our country, they do.
I have requested reports from the GAO about the number of
times that the terror gap has been exploited, and here is what
we have learned to date: From 2004 to February of this year,
terrorists tried to buy guns and explosives 1,228 times. I
think the Chairman referred to this--in 91 percent of those
cases they were given the OK to buy a gun. Imagine. So 10
percent, roughly, of these people were unable to buy guns.
But because of this terror gap, America is effectively
hanging out the welcome sign for terrorists to arm themselves.
Now, I have introduced legislation in the Senate to close the
terror gap, and Representative King has offered, as I
mentioned, a nearly identical proposal in the House.
Our legislation very simply would give the U.S. Attorney
General the power to review and deny guns and explosives to
known and suspected terrorists. It does not sound like it is an
impediment to living in this country. This common-sense
legislation is not anti-gun. It is anti-terrorist.
In fact, a gun owner who objects to the Attorney General's
finding has the power under my legislation to challenge the
ruling. And that is why support for the legislation is
widespread.
The Bush Administration, which fiercely defended gun
rights, asked Congress to pass my legislation. Attorney General
Eric Holder has indicated his support for our legislation.
Former Governor of New Jersey Tom Kean, the Chairman of the 9/
11 Commission, has urged Congress to close this dangerous
loophole. And police chiefs across the country have endorsed
our legislation.
Now the gun lobby tries to argue that gun owners opposed
the bill. Not true.
Republican pollster, Mr. Luntz, mentioned before, recently
found that 82 percent of the NRA members want Congress to close
the terror gap.
Mr. Chairman, everyone talks about making our country safer
from terrorism. This is our chance to actually do it. And I
thank you again for holding this hearing.
Chairman Lieberman. Thank you very much, Senator
Lautenberg.
Congressman King, welcome. He is the Ranking Member of
Homeland Security on the House side, a real stalwart fighter
for the security of the American people. We welcome your
testimony now.
TESTIMONY OF HON. PETER T. KING,\1\ A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. King. Thank you very much, Chairman Lieberman, Ranking
Member Collins. I want to thank you for the opportunity to be
here today. I want to thank you publicly and tell you what a
privilege it has been to be able to work with you on matters of
homeland security in a totally bipartisan manner, always
putting the country first. It has really been an honor for me
to be able to work with you closely on these issues.
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\1\ The prepared statement of Mr. King appears in the Appendix on
page 46.
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I also want to commend Senator Lautenberg for his
legislation, and I would, of course, pay special tribute to
Mayor Bloomberg and Commissioner Kelly. The actions of the last
72 to 96 hours in apprehending the terrorist in New York,
really showing 100 percent police professionalism, is really a
testament to the work that goes on day in and day out by the
NYPD under the leadership of Commissioner Kelly and Mayor
Bloomberg and all that the city has done in spending literally
hundreds and hundreds of millions of dollars to protect itself
against Islamist terrorist attack. Again, the whole world and
the whole country observed this over the last several days, but
this is really just a manifestation of what goes on every day
in New York under the leadership of Commissioner Kelly and
Mayor Bloomberg.
Mr. Chairman, I would ask that my testimony be inserted
into the record.
Chairman Lieberman. Without objection.
Mr. King. Mr. Chairman, I concur with all the remarks of
Senator Lautenberg, and to me it is an issue of common sense.
As you stated, we are at war with Islamist terrorism. It is an
enemy which is coming at us overseas and now more recently and
more frequently right here at home.
One of the reasons for that is our product overseas has
been effective under both administrations in stopping
terrorists from coming into the country, and that has been a
success. Al-Qaeda, though, is always adapting, and what they
are now doing is attempting to find Americans in this country,
people who are legally in the country, whether it was the
Najibullah Zazi case back in September, or this recent case on
Saturday evening, and others where they recruit Americans who
are under the radar screen, that do not have known ties to al-
Qaeda. It is harder for us to follow them, so we have to expect
more attacks from those already within the country.
Now, the plus side is that, again, it is harder for
terrorists to come in, and also it means that those who are
here, those who have not received the sophisticated training
overseas are more likely to rely on whatever weapons they can
get a hold of. And when we see that terrorists can have access
to guns, to explosives, as Senator Lautenberg said, I would
ask--all of us were here on September 11, 2001, and we remember
that afternoon of September 11 and the next day saying: What
could we have done to prevent this? How could we have stopped
this attack from happening?
I would just say if we find out that Islamist terrorists
such as we saw on Saturday night or others who actually have
terrorist connections even more than someone who is not known,
someone who actually has terrorist connections, has gone out
and bought weapons and carries out a massacre, whether it is in
Times Square, Chicago, New Jersey, Tennessee, or anywhere,
carries out an attack, or as we saw at the recruiting station
in Arkansas, we would say, How did we allow this to happen? And
then we have to explain to the American people even though we
knew this person was a terrorist, even though we know that al-
Qaeda has declared war against us, even though we knew that we
were facing a threat here at home, we still allowed that person
who is on a terrorist list to buy a weapon and go out and
slaughter people. I mean, just think what the American people
would think of us. If there is the extent of lack of faith in
government today, can you imagine what it would be if we
allowed that to happen? There would be blood on our hands. We
would be responsible for the deaths of all those people.
That is why this legislation is common sense, and Senator
Collins mentioned the fact that, there is the possible
violation of a constitutional right. I agree with that
completely. In the legislation that I have, we provide legal
mechanisms that after a person is notified they are on the
terrorist watchlist, they can go to court and they can
challenge it. I think Senator Lautenberg even has more
extensive protections. His legislation was drawn up after the
GAO report. I would certainly be willing to adapt my
legislation to comport entirely with Senator Lautenberg's. No
one wants somebody to be on a list wrongly. But the fact is
that if we balance the equities, if we look at what we are
facing, we are facing a possible slaughter of American
citizens, possible murder of American citizens by al-Qaeda
supporters, by Islamist militants, by Islamist terrorists, to
me there is no real debate here, so long as there are
sufficient protections in here. The protections are here, but
to me if we balance the equities, it is on the side of
protecting the American people.
We saw guns were bought for the potential attacks at Fort
Dix. Senator Lieberman mentioned the attacks at the recruiting
station in Arkansas. We saw Major Hasan with the attack that he
carried out at Fort Hood. So these were domestic terrorists.
They were people who did not even have, as I said, a terrorist
record. Just think how much worse it would be if we allowed
someone with a terrorist record to buy those weapons. And when
we realize that 91 percent of those who are on the terrorist
watchlist were able to apply for weapons and were able to
purchase them, it seems to me outrageous.
And this should not be a partisan issue in any way. As
Senator Lautenberg said, the Bush Administration was certainly
as pro-gun as any Administration we have had. They strongly
supported this legislation. They asked for this legislation and
my understanding is the Obama Administration supports it as
well.
With bipartisan legislation such as this is targeted and is
dealing with a real and present danger. Maybe if this were the
year 2000, we would say, well, OK, it is a Tom Clancy novel or
someone who is speculating. How many more attacks and potential
attacks do we have to have before all the American people and,
more importantly, all of the House and Senate realize this is a
real enemy that is here, it is amongst us, and we have to do
what we can to protect the American people?
So I thank you very much for holding this hearing. I look
forward to working in a bipartisan way, whatever adjustments we
have to make, Senator, to make sure that the legislation is
entirely compatible, if there are other reasonable protections
that people want in the legislation. This is not a work of art.
There is no pride of authorship here. I will be glad to change
it in any way we can so long as the bottom line is the American
people are protected from domestic terrorists who have guns,
and that is the essence of where I am coming from. To me, it is
common sense. It is the only logical step we can take,
especially after seeing what happened on Saturday night, how
close this enemy is.
So with that, I thank you for allowing me to testify, and
as we say in the House, I yield back the balance of my time.
Chairman Lieberman. I accept it.
Senator Lautenberg. Please excuse me. I must run.
Chairman Lieberman. I understand, Senator. Thank you very
much.
Mayor Bloomberg, thanks for being here. This was scheduled
a long time ago, and I appreciate the fact that,
notwithstanding the events of recent days, you have taken the
time to come here. I could say a lot about you. All of it is
good. Well, most of it is good. [Laughter.]
At a time when it is clear that the American people have
lost confidence in so many ways in so much of their government,
I think you set a standard of leadership and competence in
making the government work, and I thank you for that, as well
as everything else we have thanked you for this morning.
TESTIMONY OF HON. MICHAEL R. BLOOMBERG,\1\ MAYOR, CITY OF NEW
YORK
Mayor Bloomberg. Well, thank you very much. I can say some
good things about you, Senator Lieberman, Ranking Member
Collins, Senator Pryor, and Senator Graham. Thank you for
having us today. It is a great opportunity for us to tell the
Homeland Security and Governmental Affairs Committee what is
going on in our city and why we need some help from Washington.
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\1\ The prepared statement of Mayor Bloomberg appears in the
Appendix on page 48.
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As Senator Lautenberg and you said, today the Government
Accountability Office released new data showing that suspects
on the terrorist watchlists were able to buy guns and
explosives from licensed U.S. dealers well over 1,000 times.
That is a serious and dangerous breach of national security,
and it really raises a very basic question: When gun dealers
run background checks that they have to by law send to the FBI,
shouldn't FBI agents have the authority to block sales of guns
and explosives to those on the terrorist watchlists and deemed
to dangerous to fly? I actually believe that they should. And
so do the 500 mayors who are part of our bipartisan coalition
of Mayors Against Illegal Guns.
But right now, the fact is they do not. And as Senator
Lautenberg and Congressman King have just said, it is time to
close this terror gap in our gun laws.
At a time when the threat of terrorism is still very real,
as we in New York City know all too well, I think it is
imperative that Congress close this terror gap in our gun laws,
and close it quickly. The car bomb the NYPD found in Times
Square on Saturday night was not the only attempted terrorist
attack on our city since September 11, 2001. Far from it. And
sadly, we do not think it will be the last.
Since 1990, there have been more than 20 terrorist plots--
or actual attacks--against our city and that is why it is so
critical for Congress to fully fund homeland security programs
like the Securing the Cities Initiative, and to take other
steps that will help us fight terrorists and make it even
harder for them to attack us.
In the last year alone, the NYPD, working closely with
Federal authorities, prevented two major planned attacks on our
city. The first was last May, when terrorists purchased guns
and explosives as part of a planned attack on a temple and
Jewish center in the Bronx. The second was in September, when
the city and Federal authorities broke up a plot to detonate
explosives in the New York City subway system. And, of course,
attacks and planned attacks have not been limited to New York.
As everyone sadly knows, in 2007, six men were arrested for
plotting to attack Fort Dix in New Jersey, about 60 miles
outside of New York City, with an arsenal of high-powered
firearms. Last June in Little Rock, Arkansas, a man opened fire
at a military recruiting station, killing one private and
wounding another. At the time of the shooting, the FBI was
already investigating this man after his arrest in Yemen with a
fake Somali passport. He was charged with murder and 16 counts
of terrorist acts.
And on November 5, 2009, Major Nidal Hasan shot 43 people
at Fort Hood, killing 13. We know Hasan was able to buy a
handgun despite having been under investigation by the FBI for
links to terrorism. After the Fort Hood shooting, I wrote an
op-ed with Governor Tom Kean, Chair of the 9/11 Commission,
urging Congress to close the terror gap. Our message was that
we cannot wait for another Fort Hood to happen before we take
action.
As Mr. King said, the Bush Administration first proposed
closing the gap in 2007. But because nothing has happened,
people who may want to do our country harm have had no trouble
buying guns and explosives, as the GAO report clearly shows.
It is important to note that the legislation before you
today would give FBI agents the ability to make exceptions when
they determine that blocking a sale might tip off a suspect who
is under investigation. It is exactly the reverse issue. And
the bill also allows those on the list to appeal their status
to the Justice Department and to challenge the determination in
court.
Attorney General Eric Holder supported closing the terror
gap in testimony before the Senate Judiciary Committee last
year, and so does the vast majority of Americans. And, Senator
Lieberman, as you pointed out and so did Senator Lautenberg, a
December poll by Republican pollster Mr. Luntz found that 82
percent of NRA members support closing the terror gap.
Of course, it is true that even if the terror gap in our
background check system were to be fixed, terror suspects and
other dangerous people would still be able to go to gun shows
to buy guns without any background check at all, and that is
why our coalition of mayors is also urging Congress to close
the gun show loophole.
I might point out that Mr. Luntz also found the same 82
percent in favor of closing the gun show loophole as well as
the terror gap.
In New York City, we are doing everything humanly possible
to prevent another terrorist attack. Under Commissioner Kelly's
leadership, the New York City Police Department has developed
one of the world's most advanced counterterrorism programs, and
thousands of our best police officers work on counterterrorism
and intelligence every day.
A key element of any smart counterterrorism strategy is to
make it harder for terrorists to strike. That is why air
passengers walk through metal detectors. That is why our police
officers randomly check bags in the subway. That is why our
police patrol sensitive locations. And that is why it is just
common sense to give the FBI the authority to keep terror
suspects from buying guns and explosives.
Let me close by saying something about the Second
Amendment. Our Founding Fathers did not write the Second
Amendment to empower people who wanted to terrorize a free
state; they wrote it to protect people who could defend ``the
security of a free state.''
Today the security of our free state is being tested by
terrorists, and I urge you to take common-sense steps in this
law to strengthen law enforcement--including closing the terror
gap--and to protect the American people from more attacks.
Thank you very much.
Chairman Lieberman. Thanks very much, Mayor Bloomberg. That
was excellent testimony.
Commissioner Kelly, thanks for being here. I know I have
said it to you before, but when I talk to law enforcement
people around the country, they all feel that the standard of
law enforcement in this country is set by the NYPD, and if
anything under your leadership, you have raised that banner
even higher. Thank you for being here. We welcome your
testimony now.
TESTIMONY OF HON. RAYMOND W. KELLY,\1\ POLICE COMMISSIONER,
CITY OF NEW YORK
Mr. Kelly. Well, thank you very much. Mr. Chairman, Senator
Collins, and Senator Graham, thank you for the opportunity to
be here.
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\1\ The prepared statement of Mr. Kelly appears in the Appendix on
page 50.
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Terrorists are determined to attack this country by any
means. Saturday's attempted car bomb attack on Times Square is
but the latest example.
Since September 11, 2001, New York City has been the
subject of 11 plots of which we know. Each of them was defeated
through close cooperation between the NYPD and our Federal
partners. Each highlights one of the myriad ways terrorists
might try to attack New York: With homemade bombs, by torching
bridge cables, or releasing cyanide in the subways.
The police department trains constantly to defend against
every type of threat, especially those from guns and
explosives. Obviously, the more we can do to deny would-be
terrorists access to these weapons, the safer we will all be.
That is why it is urgent that we close the terror gap in our
Nation's gun laws. Failure to do so places this country at even
greater risk.
Last year, I testified before this Committee about the
NYPD's response to the commando-style assault on Mumbai, India,
in November 2008. As you may recall, that attack was carried
out by small teams of operatives using AK-56 assault rifles. By
sustaining the operation for hours, they maximized the
casualties.
As part of our comprehensive response to what happened in
Mumbai, we have held tactical drills and tabletop exercises
with officers from our Special Operations Division based on
that scenario.
We have trained more than 250 additional officers in the
use of heavy weapons so that they will be able to supplement
the work of our emergency service officers in a crisis.
We have also decided to use the instructors in our Firearms
and Tactics Unit as another reserve force.
All of our police recruits now receive basic instruction in
three types of heavy weapons.
We have taken these and other measures because we believe
an attack involving active shooters is always a possibility.
Likewise, we must also guard against terrorists armed with
homemade bombs, whether a car bomb like the one we saw in Times
Square or stashed inside backpacks for a suicide mission like
the one planned for last September in New York City subways.
Our subway bag search program, which we implemented immediately
after the 2005 London bombings, is designed to counter such a
threat.
In recent years, we have also conducted undercover
operations demonstrating the ease with which terrorists in this
country can purchase explosive ingredients such as chlorine and
ammonium nitrate.
These efforts are part of a robust counterterrorism program
we built from the ground up in 2002 when we realized that it,
in addition to our focus on crime-fighting, the police
department needed to build the intelligence collection,
analysis, and infrastructure protection capabilities to defend
New York City from another terrorist attack.
We established the Nation's first municipal
Counterterrorism Bureau, and we restructured our Intelligence
Division.
We recruited the best that the Federal Government had to
offer to head those two operations.
We created a new civilian intelligence program to support
our field commanders with timely information and analysis.
We tapped the incredible linguistic diversity of the police
department. We assigned native speakers of languages such as
Urdu, Arabic, and Pashto to counterterrorism duties.
We strengthened our patrols of key infrastructure in the
city, including bridges, tunnels, and a host of landmarks and
other sensitive locations.
We forged collaborative relationships with the private
sector, with law enforcement organizations up and down the east
coast, and with Federal agencies, especially the FBI and the
Department of Homeland Security (DHS).
All of our collective efforts would benefit from the
passage of this bill, which would exclude anyone who is on a
terrorist watchlist from being able to legally purchase a gun,
obtain a permit to buy explosives, or a license to sell them.
From the standpoint of the NYPD, it would also complement
the aggressive anti-gun strategies we already have in place.
Under Mayor Bloomberg's leadership, New York City has become a
national leader in combating gun violence. And the police
department has made significant progress in stemming the flow
of illegal guns into the city.
It is a principal reason we have been able to drive
conventional crime down by 40 percent since the beginning of
2002, even after we took on the additional responsibility of
counterterrorism. But we are by no means declaring victory. We
know there are still far too many guns available to criminals
who are determined to obtain them. The same is true for
international terrorist organizations, which in all likelihood
are plotting the next attack as we speak.
This legislation would go a long way in stopping them from
exploiting a dangerous loophole and succeeding in their
mission. For that reason, I hope that Congress will pass this
legislation without delay. Thank you, Mr. Chairman.
Chairman Lieberman. Thanks very much, Commissioner Kelly.
We will do 7-minute rounds of questioning.
The fact that you are here so soon after the events of the
last 4 days gives us an opportunity, before we get to the
terror gap and the gun bill, just to ask you if you have any
immediate, I might say, lessons learned from the last 4 days.
From my perspective looking at it, a lot of what we hoped would
happen in a post-terrorism attempt situation with cooperation
between Federal, State, and local government happened, and it
happened brilliantly. But, Mayor and Commissioner, you were
there, you were on the ground. Give us your reaction first to
the cooperation between levels of government and, second, if
you came away this early with any lessons learned.
Mayor Bloomberg. Well, I came away pleased in the sense
that the public saw something and did something, as Senator
Collins pointed out, we keep telling the public what to do,
turn security over to the professionals. You can be the eyes
and the ears, but they are the ones with boots on the ground
that we want to defend us. And, two, that all of the training
that Commissioner Kelly and the NYPD, Commissioner Cassano and
the Fire Department of New York (FDNY), and Commissioner Bruno
in our Office of Emergency Management do together and with
Federal agencies and State agencies showed itself instantly. A
police officer was called over. It happened to be a mounted cop
on his horse, saw there was something wrong, right away got the
other police officers in the area to start pulling people back.
They were well trained in doing that. They called in the fire
department, and you saw a group of people working together.
Thank God it was not worse than it was. The explosives did not
go off. But had they gone off, I think it is fair to say that
the professionals that were called in did what they had to do
to protect us, and that should give us comfort for the future.
But I think as Commissioner Kelly will tell you, we are the
target. We are going to be the target again. And the next
attack or attempted attack will be different. We do not know
what that is, but that is why we keep training for any
eventuality.
Chairman Lieberman. Commissioner Kelly.
Mr. Kelly. Mr. Chairman, it was clearly a team effort. The
Joint Terrorism Task Force (JTTF), the FBI Joint Terrorism Task
Force in New York City, is the largest in the country, and the
oldest. And we worked seamlessly on this case, as we have on
many others, although sometimes people seem to question that.
But the relationship is strong and certainly a very productive
one, as this investigation showed.
I think it also illustrated the benefits of technology. We
were able to cull information from databases that was very
helpful. The key finding in this case was the vehicle
identifaction number (VIN), the hidden VIN on the vehicle, and
then very quickly we identified the owner; and also through
using the Federal databases, we were able to link up telephone
numbers that led us to this suspect in short order.
So as a lot of people have said, 53 hours, I think, is a
remarkable amount of time at least as far as the arrest process
is concerned, to bring this case to closure.
Chairman Lieberman. I could not agree more. I was pleased
to understand that some of the databases that are within the
Department of Homeland Security, which, of course, this
Committee oversees--Congressman King's does in the House--were
very helpful to you: Customs and Border Protection (CBP),
Immigration and Customs Enforcement (ICE), of course, the
Transportation Security Administration (TSA). And they were
able to bring that to bear very quickly in the case. Correct?
Mr. Kelly. Yes, sir. Very true.
Chairman Lieberman. Incidentally, I want to say to you,
Mayor, I was thinking about those two street vendors, and I was
comparing them--I am getting to an age where I remember things
that a lot of people who are around who are younger do not
remember, but I remember the Kitty Genovese case, the horrible
case where a lot of people watched a woman being attacked and
did nothing. This was the dramatic contrast to that. Two people
seeing something suspicious, not really clearly the problem,
immediately going to the police officer on the scene, and that
prevented something worse from happening.
So whatever has changed--and I give you credit for the
campaign that you have conducted in New York to alert citizens
to their role, because we are an open country, we have an enemy
coming at us at home. They care not about their own lives and
certainly not about the lives of innocent American civilians.
We simply cannot stop, no matter how hard we try, every
attempt, and that is where the citizenry becomes 300 million
plus more security providers for our country. So I thank you
for that.
Commissioner Kelly, let me ask you a question about this
proposal here, and I want to say very briefly that I think
people understand it. The Brady gun law now says if you apply
from a federally licensed gun seller, your name is run across
databases. Some of them automatically disqualify you, if, for
instance, you have a criminal record. Others, including the
terrorism watchlist, essentially raise a red flag that delays
the purchase for 3 days, during which law enforcement is
informed.
Oddly, strangely, in this case, though the Department of
Justice may be informed that your name is on a terrorism
watchlist, they cannot stop you from buying a gun. That is a
gap we are trying to fill here with this legislation.
Commissioner, apart from the obvious fact that you want to
keep a gun out of the hands of somebody who is a suspected
terrorist, talk a little bit about what the purchase of a gun
may say about the moment in a would-be terrorist activity. In
other words, might it suggest that person is about to go
operational?
Mr. Kelly. Certainly that is a possibility. Now, we are
still gathering information about Faisal Shahzad's purchase of
a gun, but we know that he purchased a weapon in March in
Connecticut, and he had it with him in the car that he drove to
JFK Airport on Monday night. So it appears from some of his
other activities that March is when he decided to put this plan
in motion. He came back from Pakistan February 3, 2010, this
year, so it may very well be an indicator of putting something,
catastrophic in motion.
Chairman Lieberman. My time is up, and I am going to yield
to Senator Graham in a minute. I just want to stress what I
think has been said, that in the Lautenberg-King legislation,
it does not mandate that the person on the terrorism watchlist
be prohibited from buying a gun. It gives the Department of
Justice the authority to do so. Obviously, there may be cases
where the Justice Department decides it wants the gun purchase
to go forward because they are following that individual and he
or she may lead to other co-conspirators.
Senator Graham.
OPENING STATEMENT OF SENATOR GRAHAM
Senator Graham. Thank you, Mr. Chairman. Just for the
record, we have a chance here to have a really good discussion
about some very important issues. You took time away from a
very busy day job, both of you, to come and help the country
focus, I think. And, Mr. King, I have really enjoyed working
with you, and we have a little difference of opinion on this
particular issue. But the idea that America has gaps in her
defenses is really a timely topic. And we do. We have gaps in
our defenses in securing our Southern Border. We have gaps in
our defenses by allowing people to overstay their visas. All 19
hijackers were here illegally, but they did not cross the
border of Mexico. They came here on a visa. They had multiple
driver's licenses. It is so easy to fake documents. And we are
still, almost 10 years out now and I do not think we have
learned all the lessons we should have learned.
But there is one thing we can agree on here. I was in New
York Sunday night at the Marriott Marquis, the very place where
this SUV was found, and I could not have been better treated by
the police department and by the people at the hotel. I went to
a Yankees game Monday, and they won 4 to 1. So to anybody who
is worried about going to New York, go. I have never seen a
more professional group of people other than the U.S. military,
at the ball game, on the streets, all over the place. And it
was a wonderful experience. So New York is open for business,
and you are going to be well taken care of. But there is a risk
to getting out of bed. Maybe a meteorite hits you at home.
So it is a responsible thing to do for Americans to be
talking about topics such as this, but there has to be balance
here, and I am in the camp that I am not so sure this is the
right solution to what the dangers are.
The D.C. gun ban law was an experiment that if you had a
law against owning a hand gun, you would be safer. I do not
think that worked. And the Supreme Court said that went too
far, and they are about to issue a ruling here soon to
determine whether or not gun ownership is an individuals right.
I would argue that will affect the outcome of this legislation.
I am not going to ask you to give me specific numbers, but
here is a general question. There are 1,228 people on the
watchlist that tried to purchase a handgun. Is that right?
Mayor Bloomberg. Numbers like that.
Senator Graham. What percentage of those people are facing
terrorism charges now?
Mayor Bloomberg. I do not know, Senator, but let me start
out by saying I could not agree with you more. Border
security--this country does not have control of its borders,
and it should. Forty percent of the undocumented here are visa
overstays. Forged documents, anybody can forge a passport or a
green card or a Social Security card.
Senator Graham. Absolutely.
Mayor Bloomberg. And we should do something about that.
Senator Graham. Amen.
Mayor Bloomberg. We should get control of our borders. We
track people when they come through immigration. We do not
track them when they leave.
Senator Graham. Absolutely.
Mayor Bloomberg. So we do not know who is overstaying. We
should fix that. We have documents that are too easy to fake,
and it is a joke. We have to get control of immigration in this
country.
Senator Graham. Absolutely.
Mayor Bloomberg. We need immigrants, but we should be
choosing who comes here, what skills they have, where they are
coming from, and not let who wants to come here determine that.
So I am 100 percent with you.
Senator Graham. Yes, and you have been very forward-leaning
in a balanced way, and that is why I look forward to working
with you on fixing immigration comprehensively.
Mayor Bloomberg. When it comes to reasonable restrictions,
which the Supreme Court said are acceptable and consistent with
the Second Amendment, I think this is a reasonable restriction.
I do not know whether any of the 1,100 or 1,200 on the
watchlist are facing charges at the moment, those that bought
guns. Maybe Mr. Kelly can tell you, but I do know that if
society decides that these people are too dangerous to get on
an airplane with other people, then it is probably appropriate
to look very hard before you let them buy a gun.
Senator Graham. I totally understand what you are saying,
but we are talking about a constitutional right here, and the
reason I brought that up, Mayor and Mr. Kelly, if all of these
people are fanatics and every one of them on the watchlist is a
terrorist planning an attack, it would be odd that 1,228 who we
know tried to buy a gun, none of them are being charged with a
terrorism-related offense. So there is a disconnect here
between what we are saying and reality. There are 400,000
people on the terrorist watchlist. What percentage of them are
American citizens?
Mr. Kelly. I could not give you an answer.
Senator Graham. Well, the law prohibits purchase of a gun
unless you are an American citizen or a legal resident alien.
So I think we are talking about a fairly small percentage of
400,000 people. And the NRA--some people believe banning
handguns is the right answer to the gun violence problem. I am
not in that camp. I believe my right to own a gun should not be
infringed because some nut is going to take a gun and use it
wrongfully. I just think you should prosecute him very swiftly
and forcefully. I am all into national security. I want us to
take our Social Security cards and make them biometric. I want
to stop reading these guys their Miranda rights. Mr. King and I
are so much on board here. Your son is a former marine. Is that
right? He was a fighter pilot, right?
Mr. Kelly. My son?
Senator Graham. Yes.
Mr. Kelly. My son is a former fighter pilot.
Mr. King. The commissioner is a marine also, from Vietnam.
Senator Graham. Well, I knew I liked you. Now I know why.
At the end of the day, Mr. Chairman, you have been great on
this issue. Nobody in their right mind would expect a marine to
read someone caught on the battlefield their rights. You catch
them and you interrogate them lawfully to gather intelligence.
Your special unit is probably the best in the world at this.
But I do not think it is smart for us to say that the homeland
is not part of the battlefield. You get to America, you get a
much better deal, you get rewarded? If you can be caught in
Pakistan and intelligence gathering can happen with the
intelligence agency without your Miranda warnings being given,
why should you get a better deal when you get here. Even if you
are an American citizen helping the enemy, you should be viewed
as a potential military threat, not some guy who tried to
commit a crime in Times Square.
So I will look forward to working with the New York City
Police Department, the Mayor of New York, and Peter King to
devise a law that recognizes we are at war, that when you
capture someone like you all did--and it was a marvelous piece
of not police work alone but of a combination of intelligence
gathering and police work--that you would have the opportunity
to hold the suspect because they represent a military threat to
our country even though they are a citizen. You ought to be
able to gather intelligence before you did anything else,
because what I want to know more about this guy is not how he
committed the crime, but what led him to commit the crime and
who he worked with, and Miranda warnings are counterproductive,
in my view. So we need a law that would allow you to go to a
judge somewhere, like a Foreign Intelligence Surveillance Act
(FISA) judge, and hold a suspect like this and working with the
intelligence officials of this country to gather intelligence,
then make a good prosecutorial decision.
Now, back to this issue at hand. The problem I have is that
the watchlist, when you look at the numbers, has so many
problems with it that I think it is not appropriate to go down
the road that we are going because a constitutional right is
involved. That is my only concern, and I understand from the
Mayor's perspective and the police chief's perspective how you
feel about this issue. But please understand that I feel
differently not because I care less about terrorism.
Mayor Bloomberg. Senator, perhaps we can allay your fears a
little bit. The watchlist is accessed a billion times a year,
and the error rate is probably as low as on any large list.
Keep in mind, you in Congress have passed laws preventing
convicted felons from buying a gun. That does not mean every
convicted felon is going to commit another crime. You have a
law that says you cannot sell guns to minors. That does not
mean that if we gave guns to every minor they would all use
them and kill somebody. But I think--I know we disagree on
this--it is a reasonable position to take, and there is the
ability to contest if you are on the list. And if there are
problems with the list, let us fix the list rather than not use
it.
Senator Graham. Well, maybe we will have a good discussion
about how to fix the list, and I would just end with this. I
know my time is up. It is hard for me to believe that if 1,228
people have tried to buy guns who are on the list and 91
percent of them are allowed to buy guns and none of them are
being prosecuted for any terrorism-related offense, we have a
good connect here. There is a disconnect somewhere between the
people on the list and people we are actually going to
prosecute. And before we subject innocent Americans who have
done nothing but have the wrong name at the wrong time to
having to go into court and pay the cost of going to court to
get their gun rights back, I want to slow down and think about
this.
Mr. King. Senator Graham, could I just reply to something
you said about Mirandizing?
Senator Graham. Absolutely.
Mr. King. I agree with you and I believe Senator Lieberman
completely on this. My reading of the Supreme Court decisions
is that you can declare an American citizen an enemy combatant
because they have moved the battlefield from Afghanistan and
Pakistan here to the United States, and we should find
legislation to refine that and define it. Jose Padilla, as far
as I am concerned, he was an enemy combatant.
Senator Graham. Right. Let me just set the record straight
from my perspective. The Fourth Circuit held that Padilla, an
American citizen, could be held as an enemy combatant. We have
had case law that says an American citizens overseas could be
held as an enemy combatant. The Supreme Court has yet to rule
on this issue.
It is my belief that the Supreme Court would allow the
Congress to write a law that said the homeland is part of the
battlefield. I cannot imagine the Supreme Court of the United
States saying that the homeland is not part of the battlefield
and that when it comes to an American citizen, they have a
responsibility under the Constitution not to betray their
country. And once you go down that road, then you should be
viewed not as a common criminal but a military threat, and you
cannot try an American citizen in military commissions. I
helped write that law. But they can be tried in Federal court.
There is a place for Federal court, and the charge of treason
should always be on the table. No one was killed in this
instance, thank God. But if it is proven that this man
committed an act of treason against his fellow citizens, I want
to keep that charge available to our government. So that is my
view of that.
Mr. King. Senator, I believe Justice Sandra Day O'Connor in
the Hamdi v. Rumsfeld case did say that Americans can be held
as enemy combatants. I agree with you there is some question.
Obviously, they cannot be tried in a tribunal. I think a method
should be laid out where they can be interrogated----
Senator Graham. I totally agree with you.
Mr. King [continuing]. And we get all the intelligence we
possibly can.
Senator Graham. And let the people in New York help us
write this law because they know more about it than anybody in
the country, quite frankly.
Mr. King. Thank you, Senator.
Chairman Lieberman. Thanks, Senator Graham. I must say I am
troubled by your concerns about this proposal because I think
it is very limited. And what can I say?
In this Committee, I have argued that we should more
broadly apply the terrorism watchlist to give secondary
screening to people before they board airplanes. This was
something a lot of us reached a conclusion about after the
Abdulmutallab case, the Detroit bomber, because in the current
state of operation, only people on two of the more limited
lists--the No Fly and Selectee List--are actually given
secondary screening when they show up for an airplane. It seems
to me that if anybody is on a terrorism watchlist because
somebody suspects that they may be a terrorist, it is in the
interest of everybody else on that plane and of society to at
least stop them and give them a secondary screening.
Incidentally, that would have presumably found that
Abdulmutallab had the explosives on his person, but leave the
specifics of that aside.
To me, the same is true here. If somebody is on a terrorism
watchlist--most of the people on the terrorism watchlist are
foreign nationals, but there are a good number of Americans.
And why would we not want to give the Department of Justice
discretionary authority when one of them comes in to buy a gun,
a suspected terrorist, that after review of this during the 3-
day waiting period to say, no, he cannot have a gun, or she
cannot have a gun, they may be about to go out and try to kill
some Americans? I just do not see an argument that is based on
the rights of law-abiding citizens to own guns.
Listen, if you have a criminal record today and that turns
up when you go in to buy a gun in a federally licensed gun
dealer, you cannot buy that gun. You do not have a choice. Now,
that does not compromise the rights of law-abiding citizens to
buy guns. Here we are not even making it that strong. Senator
Lautenberg and Mr. King are not even trying to make it that
strong. They are just saying give the Department of Justice
discretionary authority----
Senator Graham. Can I take a shot at that? No pun intended.
[Laughter.]
Chairman Lieberman. You are my friend so----
Senator Graham. Probably a bad choice of words. No, you are
my friend, and, quite frankly----
Chairman Lieberman. But I do not get your concern about----
Senator Graham. Well, let me try to explain it to you. I
know I talk slowly. I will talk slower. I have got an accent. I
assume that your inability to understand my argument is based
on me, not you, and I will----
Mr. King. Senator Graham, you are talking slowly enough.
Chairman Lieberman. I think I understand it. I just do not
agree with it.
Senator Graham. Here is the argument, Mr. Lieberman. There
is no constitutional right to get on an airplane without being
screened of which I know. When the Founders sat down and wrote
the Constitution, they did not consider flying. And I do not
believe that the Constitution protects any of us from being
able to get on an airplane without being screened, and here is
the big elephant in the room. What if all of the secondary
screening happens to be 99 percent Muslim males? And that is
where we are headed with this thing.
Chairman Lieberman. Only if they are on the terrorism
watchlist.
Senator Graham. Yes, but here is the issue about profiling.
Chairman Lieberman. Not because they are Muslim males.
Senator Graham. We are at war, and we have to realize the
profile of the enemy, and you do not want to focus on law-
abiding American Muslim males who are serving in the military
unjustifiably. So as you said, Mayor Bloomberg, this is not
about a religion. There are plenty of people in this country of
the Muslim faith who are fighting and dying for this country.
So we have to watch what we are doing and what we are saying
here.
But, Senator Lieberman, we are talking about a Second
Amendment right, and some of the people pushing this idea are
also pushing the idea of banning handguns. And I do not think
banning handguns makes me safer, because every criminal who
wants a gun seems to be able to get one. And I do not believe
taking this concept of gun ownership and denying it, after you
have not been convicted in a lawful court of a felony, where
you get your day in court with a lawyer and a jury. I think you
are going too far here, because there is a huge difference
between losing your gun rights based on a felony charge that
was proven by a court of law and appealed and is a conviction
on the books than being on some list that is at best suspect.
And if everybody is that dangerous on the list, those who tried
to buy a gun, nobody can tell me how many are being prosecuted.
So I have a lot of concern that this is not going in the right
direction because we are dealing with a constitutional right.
And I am very concerned about our gaps in our defenses, but
maybe I am not making a good argument here to you, but it makes
perfect sense to me that losing the ability to own a gun, which
is a constitutional right, using this list the way it is
constructed is unnerving at best. Thank you.
Chairman Lieberman. Well, you and I will continue this
argument. But no one is trying to ban handguns here. I am not,
and I certainly would not support that. Some may, but this is
far from that.
The Second Amendment constitutional right, just like the
First, our most prized right--free speech, assembly,
petitioning your government, freedom of religion--they are not
unlimited. And to me, this is an extraordinarily limited law
that is being proposed by Congressman King and others to say
that somebody who is a suspected terrorist cannot buy a gun. We
will continue that discussion, I am sure.
I want to ask just a few more questions, and actually what
I am about to ask would be to slightly expand the databases
against which gun purchasers are related.
Mayor Bloomberg, you said, quite correctly, that Nidal
Hasan was not on a terrorism watchlist, but he was the subject
of an active Joint Terrorism Task Force investigation. Because
of reportedly the email contact that he had with Anwar al-
Awlaki, the radical cleric in Yemen, there is a larger FBI
database of people who are subjects of investigation.
Congressman King, I was going to ask you--and, of course,
this does not need to be done by law. It could be done by the
FBI, by regulation, and I am going to ask him about in the
second panel.
For this precautionary system that we are talking about,
wouldn't it make sense to also ask that somebody coming in to
purchase a gun be run through the larger database that the FBI
has of people under active investigation?
Mr. King. Senator, I would fully agree with that, and like
you, being somewhat familiar with the case of Major Hasan, even
though all the records have not been made available to us, yes,
using that case as a classic example, I agree with you
completely.
Chairman Lieberman. Thank you.
Commissioner, just a couple more questions quickly. NYPD
has a program called Operation Nexus. It reaches out to
businesses that sell or lease certain types of material and
equipment that can be used to facilitate terrorist activities.
I wanted to ask you to just talk a little bit about it and how
it has worked and whether you think the Federal Government
ought to try to encourage other communities to adopt the same
kind of program.
Mr. Kelly. Well, I was the U.S. Customs Service
commissioner before I was police commissioner, and there
actually is a program roughly similar to that in Customs. It
had to do specifically with the airplane parts leaving the
country, and that is, quite frankly, where I got the idea.
Nexus is an outreach program on the part of the department
where we go to businesses that may unwittingly be used by
terrorists, even garden supply stores as far as fertilizer is
concerned. We go to marinas and insecticide spraying companies.
We have gone to conventions of storage facility owners, that
sort of thing. And we have made about probably 50,000 visits
since the beginning of this program, which started in 2002. It
gives them a certificate and gives them a way of notifying us
if they see something of a suspicious nature.
As a matter of fact, the British authorities came here in
2003 and said quite openly that they looked at this program and
copied it, and it was helpful in Operation Crevice, which I am
sure you are familiar with, in which there was ammonium nitrate
stored in the storage facility in the United Kingdom.
I see no downside in doing a similar program. People are
under no obligation to call us, but the business owners who are
approached seem to be supportive, seem to like it. They feel
like they are sort of in the game, you might say. We give them
a certificate that says NYPD, and it has been helpful in a
series of leads.
Chairman Lieberman. I appreciate that, and I think we are
going to look at it and see if we can urge other communities to
adopt it.
There has been some reference here to the so-called gun
show loophole, and that is not specifically the topic of this
hearing, but it obviously is another concern that we have about
the ability of would-be terrorists to buy firearms at gun shows
without having to go through the checks, including the ones
that we are trying to expand and toughen here, that they would
if they walked into a federally licensed gun shop.
I am going to ask both the Commissioner and the Mayor, I
believe the NYPD did an investigation of gun shows recently and
reached what I thought were some very important conclusions
about it. I wonder if either of you wanted to share that with
our Committee.
Mayor Bloomberg. Senator, it was a private group that we
had hired that did the investigation, but let me just for the
record explain what the gun show loophole is.
Chairman Lieberman. Please.
Mayor Bloomberg. The Federal laws require background checks
if you buy a gun from a dealer. There is an exemption at a gun
show, ostensibly so that if you owned one gun and you wanted to
sell it to me, we would not have to go through any of the
investigatory process.
Chairman Lieberman. Right.
Mayor Bloomberg. The trouble is that if you go to gun
shows, you will find people coming in not with one gun to sell
but with hundreds of guns to sell. They are fundamentally
dealers. They have the same size inventory as the legally
registered gun dealers who go to these gun shows, but the law
does not apply to them. I do not think that Congress meant that
loophole to be a way around having professional sellers of guns
avoid the regulation that you have to do a background check. It
was meant for individual purchases, for one gun or two, and it
has been used for something different. And so closing that gun
show loophole, requiring the same processes for non-registered
dealers, but who are effectively dealers, as you do for
registered dealers would just help the government keep guns out
of those that the Federal Government has already legislated
should not have them--convicted felons and minors, people with
severe mental problems. And there are some categories, and I
think the terror gap is just another one of the categories.
I am sympathetic to Senator Graham's concerns. I think he
is a very thoughtful Senator, and he has put a lot of time into
this. I would argue, and hopefully will be able to convince him
and everybody else in Congress, that this is consistent with
the other laws that the Congress has passed and that the
Supreme Court has said are reasonable.
Chairman Lieberman. Thank you. Commissioner, tell us a
little, as best you recall, about some of the findings of that
study. I saw something about it, and I was struck by, frankly,
just how willing a lot of the gun show dealers are to break the
law.
Mr. Kelly. Well, again, as the Mayor said, this
investigation was done by private investigators, but we are
obviously concerned about the gun show loophole. It has been
known. You know, it is talked about on the street. Certainly,
in some States it is more of a problem than others. We have
certain States that seem to contribute excessively to the guns
that we find on the streets of our city, and gun shows sort of
predominate in a lot of those States.
Mayor Bloomberg. Let me just add one other thing, Senator.
Chairman Lieberman. Go right ahead.
Mayor Bloomberg. In our investigation at these gun shows,
we made sure that the seller of the gun, who was somebody that
we had hired, said to the potential buyer, ``If you had to go
through a background check, would you pass?'' And 63 percent--
and we have them all on tape--said, ``Absolutely not. I would
not pass.''
So there is no question what is happening here. People who
could not go to a reputable dealer--and 99 percent of the gun
dealers in this country are reputable.
Chairman Lieberman. Right.
Mayor Bloomberg. And they do insist on the background
check. People who cannot buy guns that way go to gun shows to
avoid the Federal law, and I do not think that Congress wants
that to happen. They in their good judgment passed the law. It
should be enforced.
Chairman Lieberman. I agree. Congressman King, Mayor
Bloomberg, Commissioner Kelly, thanks very much for your
testimony. Thanks for taking the time in the middle of
everything else you are doing to come. It truly helps us draw
attention to this gap, and hopefully it will encourage our
colleagues to vote to close the gap. Have a good day. Thank
you.
Mr. King. Thank you, Senator.
Chairman Lieberman. Thank you. We will call the second
panel. We will give the first panel a moment or two to find
their way out.
[Pause.]
Chairman Lieberman. The hearing will come back to order,
and we will call the second panel: Daniel D. Roberts, Assistant
Director, Criminal Justice Information Services Division (CJIS)
of the FBI; Eileen Larence, Director of Homeland Security and
Justice at the U.S. Government Accountability Office; Sandy Jo
MacArthur, Assistant Chief of Administrative Services at the
Los Angeles Police Department; and Aaron Titus, who is the
Privacy Director at the Liberty Coalition.
I thank all of you for being here. While the room is not
quite as crowded as it was for the first panel, your testimony
is very important to us. The statements you submitted for the
record will all be made, without objection, part of the record
of this hearing, and we would welcome your testimony now. We
will begin with Mr. Roberts.
TESTIMONY OF DANIEL D. ROBERTS,\1\ ASSISTANT DIRECTOR, CRIMINAL
JUSTICE INFORMATION SERVICES DIVISION, FEDERAL BUREAU OF
INVESTIGATION, U.S. DEPARTMENT OF JUSTICE
Mr. Roberts. Good morning, Chairman Lieberman, Ranking
Member Collins, and Members of the Committee. It is my pleasure
to address you today regarding the FBI's efforts to respond to
attempted purchases of firearms from licensed dealers and
applications for firearms and explosives permits from State
agencies by Known or Appropriately Suspected Terrorists (KSTs)
listed on the Nation's consolidated watchlist.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Roberts appears in the Appendix
on page 52.
---------------------------------------------------------------------------
First, I want to make it clear that the FBI does not take a
passive approach to persons suspected of being involved or
associated with terrorism. Our Joint Terrorism Task Forces are
engaged every day, and across the country, in following up
leads, monitoring intelligence, and otherwise pursuing
information about suspected terrorists who may be trying to
obtain the means by which they and their associates can do harm
to this country and its citizens.
Our efforts to identify watchlisted KSTs attempting to
obtain firearms includes, but is not limited to, the use of the
National Instant Criminal Background Check System (NICS)
process. The Brady Handgun Violence Prevention Act of 1993
requires a Federal Firearms Licensee (FFL) to contact the NICS
before any firearm transfer to a non-licensee so the NICS can
perform a background check to determine whether the receipt of
a firearm by the prospective transferee would violate Federal
or State law. Background checks are initiated through one of
three NICS Contracted Call Centers, a State-designated Point of
Contact, or through the NICS E-Check Web site via the Internet.
When the NICS was first established, each State either
elected to perform their own checks, have the FBI perform the
checks, or share the responsibility with the FBI. Some States
charge a fee for firearms checks while the FBI NICS section by
law cannot. In calendar year 2009, over 14.3 million checks
were conducted by the FBI and State Points of Contact. From
February 2004 to December 2009, there were 1,225 total valid
KST matches and 109 total denials of KST matches.
Once the descriptive information for the proposed
transferee is entered into the NICS system, the NICS personnel
conduct a name search for the matching records in three
databases. The databases are the National Crime Information
Center (NCIC), which contains, among other things, information
on wanted persons and protection orders; the Interstate
Identification Index (III), which contains criminal history
records; and the NICS Index, which contains the names and
information concerning persons subject to one or more of the
disqualifiers contained in the Brady Act. The NICS Index
includes individuals who have been determined to be prohibited
from possessing a firearm by Federal law for reasons that are
not reflected in the NCIC or III systems, such as mental health
concerns. If the transferee indicates that he or she is not a
U.S. citizen, then the NICS also queries databases of the
Department of Homeland Security to ensure that the transferee's
immigration status does not preclude them from obtaining a
firearm.
One of the files queried by the NICS contained within the
NCIC is the KST file. The KST file is populated by the
Terrorist Screening Center (TSC) with descriptive identities
maintained on persons who are known terrorists or for whom
there is a reasonable suspicion that they are terrorists. This
file is managed by the Terrorism Screening Center and is known
as the Terrorist Screening Database (TSDB). The FBI NICS
Command Center examiner will contact TSC immediately to inform
them a NICS hit to an NCIC KST record has occurred and to
attempt to confirm the transferee's identity to further
validate an accurate match has been made. If the TSC and the
FBI NICS Section determines the subject of the NICS transaction
does appear to be a match, then the TSC will forward the
information to the FBI's Counterterrorism Division.
Within the Counterterrorism Division of the FBI, the first
step performed immediately is to determine if there is an
active FBI investigation on the KST. If there is, the FBI case
agent is immediately notified and placed in direct contact with
the FBI NICS examiner to determine whether there is any
information in the case file, or known to the case agent, that
would disqualify the KST under the Brady Act from possessing a
firearm. Since this process was initiated in 2004,
approximately 1,200 such encounters have occurred, and in
approximately 90 percent of those, no prohibiting information
was found to deny the transfer.
If the FBI case agent does not provide any State or
federally prohibitive information and no prohibitive
information was returned from the query of the NICS databases,
then the FBI NICS Command Center examiner contacts the FFL and
changes the transaction status from delay to proceed. If the
determination cannot be made in 3 business days, the FFL is
entitled by law to transfer the firearm. If prohibiting
information is discovered after 3 business days and the firearm
has been transferred, the ATF is contacted and initiates a
separate process to retrieve the firearm. In a case involving a
watchlisted KST, this would occur in coordination with the
JTTF.
If an individual believes they have been erroneously denied
a firearm transfer, they may submit a request to appeal their
denial decision. As mandated by law and Federal regulation, the
FBI NICS Section will respond to the individual's written
request by providing the general reason for their denial within
5 business days after receiving the individual's
correspondence. Under the current procedures, the individual's
reason for denial will be one of the 10 Federal prohibitors and
never the KST hit itself.
In summary, the FBI has and will use every lawful and
appropriate investigative and analytical tool at its disposal
to scrutinize and monitor any attempt by a watchlisted KST to
acquire a firearm or to obtain an alternate firearm or an
explosives permit. While those tools and techniques have their
limits, we believe they have been highly effective when dealing
with the regulated sale of firearms.
Thank you very much, and I look forward to your questions.
Chairman Lieberman. Thanks, Mr. Roberts. That was actually
very helpful to be taken through the steps, and I will have
some questions for you when we get to that point.
Ms. Larence, thanks for being here, and obviously we are
citing your work a lot, so please tell us more about it.
TESTIMONY OF EILEEN R. LARENCE,\1\ DIRECTOR, HOMELAND SECURITY
AND JUSTICE, U.S. GOVERNMENT ACCOUNTABILITY OFFICE
Ms. Larence. Thank you, Mr. Chairman. I appreciate the
opportunity to discuss our review of how the Federal Government
uses the terrorist watchlist when checking the backgrounds of
individuals who want to buy a firearm or obtain certain firearm
or explosives licenses or permits, as well as the results of
these checks.
---------------------------------------------------------------------------
\1\ The prepared statement of Ms. Larence appears in the Appendix
on page 55.
---------------------------------------------------------------------------
As discussed earlier, being on the watchlist does not
automatically disqualify someone from possessing or receiving
firearms or explosives; rather, there must be a disqualifying
factor, such as a felony conviction or immigration violation.
Over the years, Mr. Chairman, as you recognized in your
opening statement, this condition has raised concerns about
individuals using firearms and explosive to conduct acts of
terror in the United States, concerns that have grown with
recent incidents. GAO began in 2005 to review the use of the
watchlist for these background checks and made a number of
recommendations which the FBI has implemented. For example, the
Bureau now handles all checks, including those from State and
local law enforcement agencies, that are potential or actual
matches to the watchlist.
My testimony today will give an update on three areas of
our work. First, I will provide current statistics on how often
individuals on the watchlist have been deemed eligible to
possess or receive firearms or explosives. Second, I will
describe how the information from background checks is used and
shared to support investigations and counterterrorism
activities. And, finally, I will discuss factors to consider if
the Attorney General is given the authority to deem individuals
ineligible to possess or receive firearms or explosives based
on an assessment of the terrorist threat posed.
As has been stated, since February 2004, when the FBI began
running background checks against watchlist records, through
February of this year, in 1,119 cases, or about 91 percent of
the time, individuals on the watchlist were deemed eligible to
possess or receive firearms or explosives. Three of these cases
involved explosives. About 9 percent of the time, watchlisted
individuals were deemed ineligible or denied. Data the FBI
collected between April 2009 and February of this year show
denials were due most often to prohibiting factors in State
law, felony convictions, and indictments, among other things.
According to the FBI, the 1,119 cases involved about 650
unique people because 450 of them tried to make purchases or
obtain licenses or permits more than once and 6 of them more
than 10 times. In addition, we learned that several of the
individuals matched to the watchlist during background checks
were also on the Transportation Security Administration's No
Fly List. As you know, people on this list are deemed to be a
threat to civil aviation or national security and are,
therefore, stopped from boarding a plane. But none of these
individuals were deemed ineligible for firearms or explosives
because there were no legally disqualifying factors.
Our work also showed that the FBI does not check all
records in the watchlist, and we asked if this posed a security
vulnerability. According to officials with the FBI's Terrorist
Screening Center, the database used to conduct checks only
accepts those records from the watchlist that contain enough
biographic information to readily determine if the person being
checked is an exact match to the person on the watchlist. Not
all watchlist records contain sufficient information such as a
full name and date of birth. The officials stated that the
majority of records not checked, however, are related to
foreign nationals, who would not be prospective purchasers of
firearms or explosives within the United States. We are
continuing to assess this issue.
We also learned that if a check results in a positive match
to the watchlist, FBI counterterrorism officials can work with
FBI personnel who conduct the checks, the Bureau's Terrorist
Screening Center, ATF, gun dealers, and State and local law
enforcement agencies to obtain more information to verify a
match, confirm eligibility, and enhance case files and
investigations. The FBI issued guidance in 2005 to its field
units explaining how to do this.
We do know that once a dealer is informed that an
individual is deemed eligible to purchase a firearm, the FBI
section conducting the checks must destroy certain identifying
information about that individual within 24 hours, and if
deemed eligible for a permit within 90 days. Information on
denials can be retained indefinitely.
In contrast, information obtained by FBI case agents or
counterterrorism officials to support investigations and
counterterrorism efforts can be retained and shared. The 2005
guidance explains to case agents in the field how they can
share information with other Federal, State, and local entities
consistent with State law. In addition, the FBI
Counterterrorism Division now routinely analyzes background
check information for watchlisted individuals to identify
patterns and threats and disseminates monthly reports
throughout the Bureau. FBI officials noticed that the
individuals discussed in these reports range from those who are
somewhat of a concern to those who represent a significant
threat. Similarly, the Terrorist Screening Center shares
information on positive watchlist encounters daily with some
Federal, State, and local entities.
Finally, as the Congress debates whether to give the
Attorney General authority to deem individuals ineligible for
firearms or explosives because information indicates that the
person might use them in connection with terrorism, we continue
to maintain that the Attorney General should be required to
develop guidelines for these decisions. The development of such
guidelines delineating under what circumstances he would deem
someone ineligible would be consistent with the development of
standards, criteria, and examples used for determining when to
deny a person entry to the country or the boarding of a plane.
Guidelines would also provide a means for holding the Attorney
General accountable for using this authority carefully and help
to ensure that private and civil liberties are protected.
Mr. Chairman, that concludes my statement. I would be happy
to answer any questions.
Chairman Lieberman. Thanks very much.
I just want to draw attention to something you said, and we
will come back to it because it really is important, that
several--the term you used--of the people on the list that
applied to purchase a gun were on the No Fly List, and that is
a very small list. My recollection--I do not know if you know,
Mr. Roberts, but it is about 2,000. In other words, those are
the ones that if they show up to go on a plane, they are
immediately pulled aside, not for secondary screening but they
grab them. And it is amazing that some of those have not been
stopped from buying a gun. So I will come back to that because
I want to get into the inner workings of what happens after the
hit is made.
The next witness is Sandy Jo MacArthur, Assistant Chief of
the Los Angeles Police Department (LAPD). I really appreciate
your taking the time and making the effort to come across the
country. LAPD has another great counterterrorism program and a
great police department, and I thank you for representing all
the members of the department here this morning.
TESTIMONY OF SANDY JO MACARTHUR,\1\ ASSISTANT CHIEF, OFFICE OF
ADMINISTRATIVE SERVICES, LOS ANGELES POLICE DEPARTMENT
Ms. MacArthur. Thank you. Good morning, Chairman Lieberman,
Senator Collins, and distinguished Committee Members. Thank you
for holding this hearing on firearms and terrorism.
---------------------------------------------------------------------------
\1\ The prepared statement of Ms. MacArthur appears in the Appendix
on page 69.
---------------------------------------------------------------------------
I represent the city of Los Angeles and the Los Angeles
Police Department. I have been an LAPD officer for 30 years,
and I am now an Assistant Chief. During the years that I have
served, we have dealt with extraordinary violence in the
streets of Los Angeles involving hard-core criminals, gang
members, and weapons. We have been the target of terrorist
threats, including threats to our airports and threats by
domestic terrorist groups. Our experience with responding to
and investigating such violent crimes has helped us define how
to most effectively stop such violence through prevention
efforts. Our efforts allow our city today to boast of crime
rates not seen in Los Angeles since the 1950s. This has not
occurred by accident but rather by using our experiences and
continuously improving our policing efforts. Today I am going
to address three issues of interest to this Committee.
First, there is a belief that it is not a matter of if, but
when, one of our national urban communities is once again
attacked either by a foreign or domestic terrorist in the form
of gang members, hardened criminals, Islamist terrorists, or
the lone wolf.
Second, I want to explain the scope of the term
``prevention'' and what the LAPD has incorporated into our
first responder training to address a terrorist incident or
multiple location attack.
And, third, I want to talk about the role legislation can
play in support of local law enforcement's fight against
terrorism and violence and closing the terror gap.
In February 1997, two armed gunmen held over 100 LAPD
officers at bay for nearly an hour in the infamous North
Hollywood Bank shootout. They utilized rifles and expended
hundreds of rounds of ammunition, similar to the weaponry used
by terrorist cells today. It was local law enforcement that
finally ended the confrontation.
In May 2005, four Muslim radical suspects, armed with
shotguns, went on a crime spree in Southern California. As a
result of local law enforcement and the Los Angeles Joint
Terrorism Task Force, they uncovered a larger and greater
conspiracy and prevented the suspects' planned attacks to
maximize the number of casualties in Southern California.
In November 2008, we watched in horror as terrorists
executed multiple attacks in Mumbai, India, with rifles and
explosives. This past week in Times Square, we had yet another
near miss, and thanks to vigilant citizens and the New York
police officers, the plot was foiled. In all cases, it was
local law enforcement who responded first.
The potential for an attack on the United States exists.
Continued threats from foreign or domestic terrorist groups or
a Mumbai-style attack is a real danger. Radical prison gangs
direct gang members not incarcerated to target innocent
individuals, law enforcement, and government entities for
violence. Individual extremists such as Timothy McVeigh
demonstrated just how violent and devastating one angry,
deranged individual can be.
After Mumbai, the LAPD realized that our street officers
were not prepared to respond to a simultaneous multi-event
attack on the City of Los Angeles and worked with other law
enforcement agencies to evolve the first responders'
capabilities to defend the region. We realized that local law
enforcement is the first line of defense to prevent and to
respond to violent or potentially violent incidents.
Prevention is far greater than simply preventing a crime
from occurring. It includes the mandate that during a violent
event patrol officers must prevent further mayhem or loss of
life. The patrol officer is key to preventing violent incidents
from escalating into events that end in mass casualties such as
Mumbai. We cannot solely rely on SWAT teams or counterterrorism
officers.
To address this gap in tactical patrol capabilities, we
embarked on a multi-agency, regional effort to evolve our first
responder tactics. We understand that our ability to react in
minutes rather than hours saves lives. The result of our
efforts are new patrol tactics we refer to as our Multiple
Assault Counter-Terrorism Action Capabilities (MACTAC). These
tactics are similar to our military's tactics that have been
perfected and are currently in use overseas as we fight
terrorism.
To date, we have trained over 6,000 of the LAPD's officers
and approximately 200 officers from around the country. We have
over 1,100 officers now trained in the use of patrol rifles.
This training can standardize local law enforcement's tactics
and allow seamless support in the event that a city has the
need to call in mutual aid to resolve an incident. These 21st
Century policing tactics are key to the successful prevention
of casualties during a violent encounter and to provide
officers the ability to engage indiscriminate shooters, respond
rapidly to an unfolding violent incident, and has significantly
raised the tactical competency of our street-level officers in
Los Angeles.
Finally, we need government to support the continued
development of an integrated intelligence capability and
standardized tactical training to keep our Nation safe.
Training is costly but critically important in the prevention
and the fight against terror and violence. The training we have
developed has the potential to standardize the tactics used by
over 700,000 local law enforcement officers throughout the
country.
As we know, the first several hours of any violent
terrorist incident will be the responsibility of the local law
enforcement who will be placed in harm's way and expected to
neutralize an attack. Providing these front-line officers
standardized tactical training will transform these first
responders into a coordinated team, able to prevent further
violence; a true force multiplier against domestic or
international terrorism. The cost of providing that training is
well worth the lives that are certain to be saved, and Federal
and financial support would be an investment in our Nation's
safety.
Training is only part of the equation. It is of paramount
importance that we continue to improve our information-sharing
capabilities between Federal, State, and local law enforcement
agencies regarding intelligence collection, to prevent weapons
from getting into the hands of the potential terrorist, while
offering law-abiding citizens their constitutional protections.
This can stop terrorist attacks in their tracks. Thank you for
this opportunity to speak today.
Chairman Lieberman. Thank you very much, Ms. MacArthur.
Thanks for being here representing the Liberty Coalition.
The Minority recommended you as a witness, and we are glad to
have you and look forward to hearing you now.
TESTIMONY OF AARON TITUS,\1\ PRIVACY DIRECTOR, LIBERTY
COALITION
Mr. Titus. Thank you, Chairman Lieberman, Ranking Member
Collins, and Members of the Committee. My name is Aaron Titus.
I am the Privacy Director for the Liberty Coalition.
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\1\ The prepared statement of Mr. Titus appears in the Appendix on
page 75.
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The Liberty Coalition works with more than 80 partner
organization from across the political spectrum to preserve the
Bill of Rights, personal autonomy, and individual privacy. The
Liberty Coalition works with but does not speak for our
partners.
I am aware that many in this audience have been personally
affected by gun violence. Managing guns and other weapons is a
matter of public concern. Regardless of one's position on gun
safety and gun control, the Supreme Court has unambiguously
ruled that the right to bear arms is an individual,
constitutionally enumerated right. The Second Amendment is not
absolute, and the government may regulate the right to bear
arms in many ways.
But S. 1317 goes too far. The bill should be titled ``The
Gun Owners Are Probably All Terrorists Act'' because it strips
citizens of their constitutional right to keep and bear arms
without any meaningful due process. And S. 2820 should be
called the ``National Firearm Registry Act'' because it creates
a national firearm registry. So I suggest that we call it what
it is. If you would like to make a national firearm registry,
then go through the proper process, call it what it is, and
have a meaningful public debate.
S. 2820 creates a massive database of names and detailed
personal information of every law-abiding citizen who purchases
a gun. The bill disingenuously purports to target terrorists.
But in fact, only one ten-thousandth of 1 percent of these
records belong to people on watchlists. Every year, only 200
new watchlist records will be created, but the system will
generate more than 14 million records on law-abiding citizens.
Once collected, there is no limit on what the information may
be used for and no legal requirement to ever delete it. At the
very least, we should call this bill what it is. It is a
National Gun Registry Act.
Reading S. 1317, one would think that it is lawful for
convicted terrorists to own guns. That is simply not true.
Convicted terrorists cannot own guns. Not only that, but
today's discussion totally misses the point. This Committee
should not spend time debating on whether to take away
terrorists' guns, bombs, cell phones, or any other instruments
of terror. If a person is a dangerous terrorist, then he should
be thrown in jail. The only things a real, convicted terrorist
should own are an orange jumpsuit and a pair of leg chains.
Assuming for a moment that everyone on a watchlist is a
terrorist, as this bill suggests, then I propose that this
Committee start throwing every single one of those hundreds of
thousands of people in jail, starting today. But you and I know
that the Constitution will not let you do that. And if you
cannot throw citizens in jail for being on a watchlist, you
cannot revoke their Second Amendment rights either.
Right now, a citizen who is denied a firearms purchase has
the right to know exactly why, and appeal. But S. 1317 changes
that. If a citizen's name is on a watchlist, the Attorney
General does not have to tell him why he was denied, if he
thinks that tipping off the citizen might compromise national
security.
If a citizen is able to appeal the decision in court,
things only get harder and more confusing. Neither the citizen
nor his attorney can see the evidence against him. They can
only see summaries and redacted versions. Not even the judge
may consider the unredacted evidence.
A citizen will lose his appeal if the Attorney General can
prove, by a preponderance of the evidence, not that the
individual poses a risk, or that the person is a terrorist, or
even that the person is under investigation; rather, the
Attorney General must only demonstrate that the citizen has
been placed on a watchlist. Once that has been proven, the
appeal is over, and the citizen loses his Second Amendment
right to keep and bear arms.
The citizen will not have a chance to introduce evidence of
innocence, abuse of executive discretion, or mount any other
meaningful defense. I have heard of this type of judicial
system being applied to non-citizens, but never to citizens of
the United States, and especially on a matter of constitutional
importance.
Times may have changed, Mr. Chairman, but fortunately the
Constitution has not.
Criminal and terrorist investigations must be kept
confidential. But S. 1317 misunderstands that investigation is
not guilt. Suspicion is not a conviction. And the law has a
technical word for people who have not been convicted of a
crime. It is called ``innocent.''
Terror watchlists have no meaningful element of due process
and are, therefore, fundamentally different from other lists
scanned by the National Instant Criminal Background Check
System. Terror watchlists by their nature are designed to be
overbroad. A name on a terror watchlist is evidence of
government interest in a person, not proof of terrorism.
The bald allegation of a suspicion of terrorist
inclinations is insufficient evidence to overcome an
individual's right to bear arms. Mr. Chairman, suspicion is not
a conviction.
S. 1317 takes away a citizen's right to face his accusers.
This bill takes away a citizen's right to appeal. This bill
takes away a citizen's right to due process. And if you cannot
throw them in jail because they are on a watchlist, then you
cannot revoke their Second Amendment rights either.
Mr. Chairman, this bill is unconstitutional, and I urge
this Committee to reject S. 1317 and S. 2820.
I am happy to respond to questions.
Chairman Lieberman. Thanks, Mr. Titus. You will not be
surprised to hear that I disagree with you, but I appreciate
the fact that you stated your case and did it thoughtfully.
Let me begin by picking up on your testimony, Mr. Roberts,
and using some of the numbers in the study that GAO and Ms.
Larence did of the 1,225 or 1,228 cases that we have talked
about where there was a match by a potential gun purchaser with
the terrorism watchlist, and this goes down--the 91 percent of
those who were not stopped because they hit some mandatory
rejection database like a criminal record, 650 unique people.
So what happened? And I would just state for the record, I
am not sure we have ever said this. As I understand it--and
please confirm it for me--it was by executive action that the
Department of Justice, not by legislative action, began to
apply the names of people applying for gun licenses to the
terrorism watchlist. Is that correct? In other words, it was
not legislatively mandated.
Mr. Roberts. In terms of the database that we check?
Chairman Lieberman. Yes.
Mr. Roberts. That is correct. There is no mandate that we
check certain databases. We are open to checking many of them.
Chairman Lieberman. Correct. And so to some extent, the
reason why this hit on the terrorism watchlist from a potential
gun purchaser is not reason of itself, as other hits are on
other watchlists, to deny the gun permit is because Congress
has never legislated on that. In other words, you do not have
the authority by executive order, without congressional
authorization, to not only apply to additional watchlists but
to then prohibit a gun purchase, correct?
Mr. Roberts. That is correct. We are limited to the 10
prohibitors that are in the Brady Act.
Chairman Lieberman. Now, as I mentioned, the Bush
Administration attempted, in 2007, to add that discretionary
authority, and obviously the legislation that we have discussed
today would do the same. What, generally speaking, happens to
those 650 unique people? In other words, when somebody on a
terrorism watchlist comes in to apply for a gun permit to buy a
gun, the FBI, we know now, cannot deny that purchase.
Mr. Roberts. That is right.
Chairman Lieberman. But what happens? I presume that some
extra attention is paid to those people. Can you talk about
that?
Mr. Roberts. That is absolutely correct. The FFL gets a
notice from our NICS section that they are to delay the
transaction, which buys us basically 3 days to do some
additional investigation, at which point we immediately notify
the Terrorism Screening Center of the KST hit that we found in
NCIC.
We work with the Terrorism Screening Center and then the
FBI's Counterterrorism Division to make sure everybody is in
the loop and that everybody knows that this person on the KST
list is attempting to buy a firearm.
We then talk to the FBI case agent, and find out if there
is additional information that he or she may have in his or her
possession that would preclude the firearms transaction. In
other words, the case agent may know that individual is under
sealed indictments, may know that there was an arrest that we
did not know about that was not in III or something to that
effect, a prohibitor that is under the Brady Act now. So we
would explore that, and we would also provide to him the
information about the KST attempting to purchase a firearm and
the FFL that he or she was using to do that.
Chairman Lieberman. Fine. Let me ask the next question. The
3 days passes. The individual on the terrorism watchlist
purchases the gun. For the information of the public, let alone
the Committee, I presume that is not the end of it for the FBI.
In other words, can the public have some reassurance that these
people are being watched, basically?
Mr. Roberts. That is absolutely correct. It could be a key
piece of evidence for the JTTF agent who is working that case.
And let me just say that of the times that we have had the 3-
day waiting period expire and the individual on the KST list
was subsequently transferred a firearm, we have never had to go
back to ATF to have that gun retrieved for a KST hit. We have
in other instances, but not in a KST hit.
Chairman Lieberman. So the question was raised earlier,
what has happened to those people? In other words, we have no
evidence that they have gone ahead and committed a terrorist
act. Is that a fair conclusion or do we not really know?
Mr. Roberts. Well, I think it is a case-by-case basis, and
I think it is up to the individual case and the individual case
agent to determine where it goes from there and whether the
fact that the individual on the KST list is attempting to buy a
firearm is relevant to his or her case or not. Each case is
going to be completely different. It could very well be that
the JTTF agent decides that additional scrutiny is necessary of
that individual and, for example, put additional surveillance
on that individual or some other investigative technique.
Chairman Lieberman. I presume that if somebody who had
risen to a high enough level of concern to be on the No Fly
List comes in to buy a gun, the FBI is going to pay special
attention to that.
Mr. Roberts. I can assure you that all of these KSTs get
special attention and are immediately dealt with, both at our
office in the CJIS Division as well as at the Counterterrorism
Division.
Chairman Lieberman. Do I understand that today you are not
authorized to say whether the FBI is in favor or against this
legislation?
Mr. Roberts. I am not authorized to do that. That is a
Department of Justice call, and I have not been authorized to
do so.
Chairman Lieberman. I gather from previous testimony and
just hearsay that Attorney General Holder has said he would
support such legislation, but I gather that that has not been
specifically conveyed to you.
Mr. Roberts. It has not. I have not been part of those
discussions.
Chairman Lieberman. Let me ask you then the next question,
which I asked Commissioner Kelly. Maybe it is self-evident. To
what extent can one conclude that the purchase of a firearm by
somebody who is a terrorism suspect and, therefore, on the
watchlist may indicate that person is moving to activate, to be
operational, to actually carry out a terrorist attack?
Mr. Roberts. It is probably a better question for our
Counterterrorism Division to answer than me, but I will say
that it could very well be or it may not be. There is a whole
host of range of answers there regarding each separate case.
But I think I would have to defer to the Counterterrorism
Division of the FBI for a better answer to that question.
Chairman Lieberman. Am I right that everybody who is a KST
has a case officer?
Mr. Roberts. It may not be an FBI case officer, but most of
them are.
Chairman Lieberman. Yes. So presumably somebody on the No
Fly List who came in to purchase a gun----
Mr. Roberts. Should have an FBI case agent.
Chairman Lieberman. Would have an FBI case officer.
Mr. Roberts. Or a JTTF case agent.
Chairman Lieberman. Yes, exactly. So, in other words, if
this was a person being followed and the gun was purchased,
there would be up to each case officer to determine whether
that was an indication that this individual, based on the full
range of information they had, was about to go active.
Mr. Roberts. That is correct, because it is my
understanding that many or at least some of the individuals on
the KST list may be those types of cases where they are
providing material support in the form of funding to, say,
Hezbollah and not necessarily an operational type of case.
Chairman Lieberman. Right. Let me ask you a different kind
of question, which is about potentially expanding the list that
the FBI runs the potential gun purchasers against, which is
cases--I used the words ``active investigation.'' I know that
is a term of art, and I may have overused it. But those are
cases where there is some interest in an individual, but not to
the level that they have made it to the terrorism watchlist.
And here, mindful of the kinds of constitutional concerns, it
just seems to me that knowing that any action here can
ultimately be brought to court by a defendant, that you would
want to know whether that person has gone in to buy a gun.
So I do not know whether you are able to indicate what you
think about the idea that we have been talking about, about
urging the FBI to expand the list that runs the potential gun
purchasers against.
Mr. Roberts. Well, I will start by saying that the law does
not preclude us or limit us to checking any databases. The
challenge here is--and I think you are generally talking about
querying the FBI's Automated Case Support (ACS) system.
Chairman Lieberman. The ACS list, and I gather you are
going to a new system called Sentinel.
Mr. Roberts. At some point, right. The problem there is
that, as I mentioned in my testimony, several of the States do
the gun checks themselves, Point of Contact States such as
Connecticut. They would not have access to ACS. There are
security issues, there are a host of technical concerns, but
mostly security issues since ACS is a classified network and
contains classified information. So it is a difficult question
and a very technically challenging question.
Chairman Lieberman. We will continue this discussion. I may
send a letter over just asking some questions about it to see
if it can be helpful in preventing terrorists from obtaining
guns.
Ms. MacArthur, let me ask a related question. I understand
that the LAPD has been tracking purchases of weapons and
ammunition for purposes of developing intelligence regarding
imminent violence and criminal use of firearms. I wonder if you
could describe what the Department has been doing and whether
your results have been successful, and obviously particularly
whether they have all been related to attempts to prevent
firearms from being acquired by terrorists.
Ms. MacArthur. We have been tracking both the firearms
purchases as well as the ammunition purchases, and the
ammunition purchases are not yet automated in the State. So
what we have right now is several of our task forces that are
particularly successful have been our violent crime task forces
that actually will go out to various dealers on a random basis
and sometimes not so random basis, depending on the
investigations that may be going on, pull their files and bring
them in, and then we begin to run who has purchased the
ammunition. What we have found in particular is that there are
many times when we have actually been able to flag people who
have criminal convictions that would prevent them from buying
the ammunition if they had been run into a system.
We do follow-ups. We have arrested people. We have sent
people back to prison. We find people on felony probation and
parole, people who have domestic violence, which is a big
problem in Los Angeles--I think it is across the country--that
have purchased ammunition and should not have been able to
purchase it.
So we find that these lists have become very valuable in
terms of not just the terrorism front, but the violence front
in general.
Chairman Lieberman. Very good. In your testimony, you
described how the Mumbai attacks demonstrated to the LAPD that
reliance on SWAT teams would not be sufficient to prevent a
violent event like Mumbai from escalating. I wonder if you
could explain what the LAPD has done to better prepare front-
line police officers to respond to that kind of attack.
Ms. MacArthur. Yes. As we watched Mumbai, and several
incidents, actually, across the world over the last 10 or 15
years, we started to understand--as you know, we developed the
SWAT team. We are the first one in the country to have it. We
are very proud of it, and we find it very useful.
However, watching Mumbai in particular, having multiple
incidents occur is really counter to what SWAT teams are
designed for. We have a SWAT team, and they respond to one
incident at one time, contain, control, and manage it hopefully
in a safe manner.
What you saw with Mumbai is multiple attacks almost
simultaneously, and we saw the first responders were the people
who were going to run into harm's way.
Typically, what we have trained our officers in law
enforcement across the country for years is to get to the
situation, assess it, contain it, control it, and then
hopefully call in additional units for assessment. We
understand that is where we are going to lose lives. So what we
did is we brought together a multi-agency and multidisciplinary
approach when we were developing the new tactics. We brought in
law enforcement from across Southern California, including Las
Vegas. We brought in tactical team members from our SWAT teams.
And we also brought in several of our officers who have just
returned from Iraq and Afghanistan. And we looked at how to
better police in an urban environment in a terrorist attack
situation.
What we found was typically our officers, as most officers,
either ride as a one-person car or a two-person car, and two
people are not sufficient to go down range to deal with the
threat. But at the same time, we do not have the opportunity to
wait for 40 people to respond in a SWAT configuration. So we
are utilizing the tactics that are used by our military. We
have designed a total different approach for what we now ask
officers to do when you have a violent incident unfolding, is
to assess, announce through communications what you have,
assemble a team of no less than four, and then act, which is
quite different than what we have been training in the past.
We have now been doing training with our region, and it
allows an officer from Los Angeles Police Department with our
port police, with our school police, with our sheriffs, and
with Las Vegas, as officers arrive on scene, to marry up with
other officers from other agencies, all being trained in the
same tactics in what we consider going down range and dealing
with the threat, neutralizing the threat, and hopefully
preventing additional mayhem and loss of life.
What we also found when we were looking at this is that we
were sorely underrepresented in the weapons system. We have
officers out there with sidearms, and we had very few officers
that were out there with rifles. So we have really stepped up
our approach to arming our officers so that our officers can
meet the terrorists with equal or superior weaponry.
So as I stated earlier, we have over 1,100 officers that
are now trained with the police rifle. They carry them in their
police cars every single day. And we understand that they are
going to probably have to use those in an environment that we
have described earlier.
So we have presented at the International Association of
Chiefs of Police and several other agencies throughout the
country, and everybody from our police administrators to our
tacticians have acknowledged that this was a gap for some time
now. So we invite people to come into our agency to do the
training. We have sent people to other agencies, to the East
Coast as well, to do training. And we see this as protecting
our line officers and protecting the citizens who will be
victims of such attacks.
Chairman Lieberman. Very impressive and reassuring.
Ms. Larence, just one question. I appreciate the
recommendations that GAO made from its study in this regard,
and I was interested in your call for some guidelines for the
action of the Justice Department here. And I wanted to ask you
to just talk a little bit more, flesh out a little bit the
general idea that you have here.
Ms. Larence. Well, as you know, people can be nominated to
the terrorist watchlist based on a reasonable suspicion they
pose a terrorist threat but are not necessarily directly linked
to terrorism. And so the concept of guidelines would be for the
Department of Justice to determine what kinds of links, what
kinds of evidence, or what information in the record would
raise to the level of concern that the person would be a threat
that would merit a denial of a firearm or explosive.
We have guidelines, criteria, and examples that the
Department uses to place people on the No Fly List. So
depending, for example, on a person's affiliation with certain
organizations, the strength of that affiliation might determine
what level of threat the person poses.
I think sometimes people may be concerned if someone has
unfettered discretion, so we think guidelines on using this
discretion would be consistent with the way the government
operates other screening processes.
Chairman Lieberman. Mr. Roberts, what do you think about
that?
Mr. Roberts. It is not my call. It is a policy call at the
Department of Justice, and we will be glad at the NICS process
to handle it any way that the policy and the law requires.
You had asked earlier about the numbers on the No Fly List,
and the number is about 8,600 people on that No Fly List, which
is quite a bit smaller than what is on the KST list currently,
which is some 270,000 on the KST list right now.
Chairman Lieberman. Right. Thanks. I am afraid that I have
to go on to another meeting. I thank all of you for your
prepared testimony and for your delivered testimony. It has
been to me an interesting, informative hearing. There is some
disagreement, but it is healthy, and I think we have had a good
airing of it here today.
As I mentioned briefly earlier, this is for our Committee a
subject matter oversight hearing pursuant to our homeland
security authority. The actual legislation in this regard is in
the Judiciary Committee, and so what happens to it depends on
that committee. But I hope that they will see fit to bring it
out soon.
The record of the hearing will remain open for 15 days for
additional statements or questions from the witnesses or the
Members of the Committee. Usually it is the Members of the
Committee who ask the questions and the witnesses who provide
the answers and statements. But I thank you very much for your
testimony, and with that the hearing is adjourned.
[Whereupon, at 12:25 p.m., the Committee was adjourned.]
A P P E N D I X
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