[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 3069 Introduced in Senate (IS)]

<DOC>






114th CONGRESS
  2d Session
                                S. 3069

      To prevent terrorists from obtaining firearms or explosives.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 16, 2016

  Mr. Toomey introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
      To prevent terrorists from obtaining firearms or explosives.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. FIGHTING TERRORISM AND UPHOLDING DUE PROCESS.

    (a) Short Title.--This section may be cited as the ``Fighting 
Terrorism and Upholding Due Process Act''.
    (b) Preventing the Transfer of a Firearm and the Issuance or 
Maintenance of a Firearms or Explosives License or Permit to Dangerous 
Terrorists.--Chapter 44 of title 18, United States Code, is amended by 
inserting after section 922 the following:
``Sec. 922A. Attorney General's discretion to prohibit transfer of a 
              firearm and deny or revoke a license or permit
    ``(a) Definitions.--In this section--
            ``(1) the term `Foreign Intelligence Surveillance Court' 
        has the meaning given the term in section 701 of the Foreign 
        Intelligence Surveillance Act of 1978 (50 U.S.C. 1881);
            ``(2) the term `material support or resources' shall 
        include all actions prohibited by section 2339A;
            ``(3) the term `terrorism' shall include `international 
        terrorism' and `domestic terrorism', as defined in section 
        2331; and
            ``(4) the term `Terrorism Firearm Screening List' means the 
        list developed by the Attorney General under subsection (b)(4).
    ``(b) Development of Terrorism Firearm Screening List.--
            ``(1) In general.--The Attorney General may develop a list 
        of persons for whom the Attorney General determines, for each 
        person, that--
                    ``(A) there is probable cause to believe the person 
                is or has been engaged in conduct constituting, in 
                preparation for, in aid of, or in support of terrorism, 
                or providing material support or resources for 
                terrorism; and
                    ``(B) there is reason to believe the person may use 
                a firearm in connection with terrorism.
            ``(2) Requirement.--The Attorney General shall submit to 
        the Foreign Intelligence Surveillance Court--
                    ``(A) the list of persons developed under paragraph 
                (1); and
                    ``(B) the information and documents, in unredacted 
                form, supporting the Attorney General's determinations 
                as to which persons are included on the list.
            ``(3) Determination.--Using the list, information, and 
        documents submitted under paragraph (2), the Foreign 
        Intelligence Surveillance Court shall determine, for each 
        person on the list, whether--
                    ``(A) there is probable cause to believe the person 
                is or has been engaged in conduct constituting, in 
                preparation for, in aid of, or in support of terrorism, 
                or providing material support or resources for 
                terrorism; and
                    ``(B) there is reason to believe the person may use 
                a firearm in connection with terrorism.
            ``(4) Consolidated list.--The Attorney General shall 
        establish a list of persons whom the Foreign Intelligence 
        Surveillance Court determines meet the criteria described in 
        paragraph (3), to be known as the `Terrorism Firearm Screening 
        List'.
    ``(c) Periodic Updating and Review of Terrorism Firearm Screening 
List.--
            ``(1) Updates to the list.--The Attorney General may, after 
        the development of the Terrorism Firearm Screening List, add 
        additional persons to the Terrorism Firearm Screening List by 
        following the procedures set forth in subsection (b) for each 
        person to be added.
            ``(2) Periodic judicial review.--
                    ``(A) In general.--Not later than 1 year after the 
                date of enactment of this section, and once every year 
                thereafter, the Attorney General shall submit to the 
                Foreign Intelligence Surveillance Court the Terrorism 
                Firearm Screening List.
                    ``(B) Review.--The Foreign Intelligence 
                Surveillance Court shall review the Terrorism Firearm 
                Screening List submitted under subparagraph (A) to 
                determine whether any person on the list should be 
                removed by reason of no longer satisfying the 
                requirements described in subsection (b)(3).
                    ``(C) Production of information.--Upon request of 
                the Foreign Intelligence Surveillance Court, the 
                Attorney General shall provide to the Court any 
                information the Court determines necessary to conduct 
                the review required under subparagraph (B).
                    ``(D) Removal of names.--In conducting a review 
                under subparagraph (B), if the Foreign Intelligence 
                Surveillance Court determines that a person should be 
                removed from the Terrorism Firearm Screening List 
                because the person no longer satisfies the requirements 
                described in subsection (b)(3), the Attorney General 
                shall remove such person from the Terrorism Firearm 
                Screening List.
    ``(d) Authority To Prohibit Firearm Transfers and To Deny or Revoke 
Licenses and Permits.--In accordance with subsection (e), the Attorney 
General may prohibit a person who is listed on the Terrorism Firearm 
Screening List in accordance with subsections (b) and (c), or for whom 
there is probable cause to believe the person is or has been engaged in 
conduct constituting, in preparation for, in aid of, or in support of 
terrorism, or providing material support or resources for terrorism, 
and there is reason to believe the person may use a firearm in 
connection with terrorism, from--
            ``(1) participating in the transfer of a firearm under 
        section 922;
            ``(2) receiving or maintaining a firearms license under 
        section 923; and
            ``(3) receiving or maintaining a license or permit for 
        explosive materials under section 843.
    ``(e) Procedure for Prohibiting Firearm Transfer or Denying or 
Revoking a License or Permit.--
            ``(1) Procedure with regard to persons included on the 
        terrorism firearm screening list.--If the Attorney General 
        prohibits the transfer of a firearm or denies or revokes a 
        license or permit for firearms or explosive materials under 
        subsection (d) for a person who is listed on the Terrorism 
        Firearm Screening List--
                    ``(A) the Attorney General shall--
                            ``(i) not later than 7 days after the 
                        prohibition, denial, or revocation, file a 
                        petition to sustain the prohibition, denial, or 
                        revocation in the district court of the United 
                        States for the district in which--
                                    ``(I) the firearm transfer was 
                                attempted;
                                    ``(II) the licensee or permit 
                                holder is located; or
                                    ``(III) the applicant for a license 
                                or permit is located; and
                            ``(ii) submit to the district court of the 
                        United States in which the petition described 
                        in clause (i) is filed, the evidence the 
                        Attorney General relied upon in determining 
                        that the person should be added to Terrorism 
                        Firearm Screening List and any exculpatory 
                        evidence that the Attorney General possesses or 
                        has access to;
                    ``(B) the person to whom the prohibition, denial, 
                or revocation applies, shall be entitled to--
                            ``(i) a hearing at which the person may be 
                        represented by counsel and a final judgment by 
                        the district court of the United States not 
                        later than 60 days after the date on which the 
                        attempted transfer of a firearm occurred or the 
                        Attorney General denied or revoked a license or 
                        permit for firearms or explosive materials; and
                            ``(ii) in the case of an appeal of the 
                        decision of the district court of the United 
                        States, a decision by the reviewing court not 
                        later than 90 days after the date on which the 
                        district court of the United States issues the 
                        decision; and
                    ``(C) the district court of the United States in 
                which the petition described in clause (i) is filed--
                            ``(i) shall allow the Attorney General, for 
                        information the United States has determined 
                        would likely compromise national security, to 
                        submit summaries and redacted versions of 
                        documents;
                            ``(ii) shall review any summaries and 
                        redacted versions of documents to ensure that 
                        the person to whom the prohibition, denial, or 
                        revocation applies is receiving fair and 
                        accurate representations of the underlying 
                        information and documents;
                            ``(iii) shall ensure that any summaries and 
                        redacted versions of documents accepted into 
                        evidence are fair and accurate representations 
                        of the underlying information and documents;
                            ``(iv) shall provide copies of any 
                        summaries and redacted versions of documents to 
                        the person to whom the prohibition, denial, or 
                        revocation applies;
                            ``(v) shall not consider the full, 
                        undisclosed information or documents in 
                        deciding whether to sustain the Attorney 
                        General's decision to include the person on the 
                        Terrorism Firearm Screening List; and
                            ``(vi) shall issue an order that the 
                        Attorney General's action prohibiting the 
                        transfer of a firearm or denying or revoking a 
                        license or permit for a firearm or explosive 
                        material was not authorized unless the Attorney 
                        General demonstrates--
                                    ``(I) there is probable cause to 
                                believe the person is or has been 
                                engaged in conduct constituting, in 
                                preparation for, in aid of, or in 
                                support of terrorism, or providing 
                                material support or resources for 
                                terrorism; and
                                    ``(II) there is reason to believe 
                                the person may use a firearm in 
                                connection with terrorism.
                    ``(D) Relief.--If a person who was subject to a 
                prohibition, denial, or revocation described in this 
                paragraph prevails in a proceeding under this 
                paragraph, including on appeal, the person shall be 
                entitled to all costs, including reasonable attorney's 
                fees, and the Attorney General shall immediately remove 
                the individual from the Terrorism Firearm Screening 
                List.
            ``(2) Procedure with regard to persons not on the terrorism 
        firearm screening list.--If the Attorney General prohibits the 
        transfer of a firearm or revocation of a license or permit for 
        firearms or explosive materials under subsection (d) for a 
        person who is not listed on the Terrorism Firearm Screening 
        List, the following procedures shall apply:
                    ``(A) Temporary ex parte order prohibiting transfer 
                or sustaining revocation.--
                            ``(i) In general.--The Attorney General--
                                    ``(I) may deny the firearm transfer 
                                or revoke the license or permit for the 
                                period described in section 
                                922(t)(1)(B)(ii);
                                    ``(II) shall file an emergency 
                                petition to temporarily prohibit the 
                                attempted transfer or sustain the 
                                revocation of a license or permit for 7 
                                additional days, with such petition 
                                being filed with the Foreign 
                                Intelligence Surveillance Court or a 
                                Federal district court (provided that 
                                if the Attorney General files with a 
                                Federal district court, the Attorney 
                                General can and will comply with all 
                                the requirements of this paragraph, 
                                including the requirement to submit to 
                                the court the information and 
                                documents, in unredacted form, that 
                                support the Attorney General's 
                                petition); and
                                    ``(III) as part of the petition 
                                described in subclause (II), shall 
                                submit to the court the information and 
                                documents, in unredacted form, that 
                                support the Attorney General's 
                                petition.
                            ``(ii) Court requirements.--The court shall 
                        deny an emergency petition filed by the 
                        Attorney General under clause (i) unless the 
                        Attorney General demonstrates--
                                    ``(I) there is probable cause to 
                                believe the person is or has been 
                                engaged in conduct constituting, in 
                                preparation for, in aid of, or in 
                                support of terrorism, or providing 
                                material support or resources for 
                                terrorism; and
                                    ``(II) there is reason to believe 
                                such person may use a firearm in 
                                connection with terrorism.
                            ``(iii) Transfer allowed.--If an order is 
                        not issued under this paragraph within the 
                        period described in section 922(t)(1)(B)(ii), 
                        the firearm transfer may proceed or the 
                        revocation of the license or permit shall be 
                        canceled.
                    ``(B) Adversarial court proceeding to obtain a 
                final order prohibiting transfer of a firearm or 
                revoking a license or permit.--
                            ``(i) In general.--If the Attorney General 
                        wishes to extend an order that is issued under 
                        subparagraph (A)(ii)(II)--
                                    ``(I) the Attorney General shall--
                                            ``(aa) within 7 days after 
                                        the order was granted under 
                                        subparagraph (A)(ii)(II), file 
                                        a petition for a final order 
                                        prohibiting the transfer of a 
                                        firearm or sustaining the 
                                        revocation of a license or 
                                        permit, with such petition 
                                        being filed in the district 
                                        court of the United States in 
                                        which the firearm transfer was 
                                        attempted or the licensee or 
                                        permit holder is located; and
                                            ``(bb) submit to the 
                                        district court of the United 
                                        States in which the petition 
                                        described in item (aa) is 
                                        filed, the evidence supporting 
                                        the Attorney General's petition 
                                        and any exculpatory evidence 
                                        that the Attorney General 
                                        possesses or has access to;
                                    ``(II) the person whose attempted 
                                firearm transfer was blocked shall be 
                                entitled to--
                                            ``(aa) a hearing at which 
                                        the person may be represented 
                                        by counsel and a final judgment 
                                        by the district court of the 
                                        United States not later than 60 
                                        days after the date on which 
                                        the attempted transfer of a 
                                        firearm occurred or Attorney 
                                        General revoked a license or 
                                        permit for firearms or 
                                        explosive materials; and
                                            ``(bb) in the case of an 
                                        appeal of the decision of the 
                                        district court of the United 
                                        States, a decision by the 
                                        reviewing court not later than 
                                        90 days after the date on which 
                                        the district court of the 
                                        United States issues the 
                                        decision; and
                                    ``(III) the district court of the 
                                United States in which the petition 
                                described in subclause (I) was filed--
                                            ``(aa) shall allow the 
                                        Attorney General, for 
                                        information the United States 
                                        has determined would likely 
                                        compromise national security, 
                                        to submit summaries and 
                                        redacted versions of documents;
                                            ``(bb) shall review any 
                                        summaries and redacted versions 
                                        of documents to ensure that the 
                                        person to whom the prohibition 
                                        or revocation applies is 
                                        receiving fair and accurate 
                                        representations of the 
                                        underlying information and 
                                        documents;
                                            ``(cc) shall ensure that 
                                        any summaries and redacted 
                                        versions of documents accepted 
                                        into evidence are fair and 
                                        accurate representations of the 
                                        underlying information and 
                                        documents;
                                            ``(dd) shall provide copies 
                                        of any summaries and redacted 
                                        versions of documents to the 
                                        person to whom the prohibition 
                                        or revocation applies;
                                            ``(ee) shall not consider 
                                        the full, undisclosed 
                                        information or documents in 
                                        deciding whether to sustain the 
                                        Attorney General's prohibition 
                                        or revocation; and
                                            ``(ff) shall issue an order 
                                        rejecting the Attorney 
                                        General's petition unless the 
                                        Attorney General demonstrates 
                                        there is probable cause to 
                                        believe the person is or has 
                                        been engaged in conduct 
                                        constituting, in preparation 
                                        for, in aid of, or in support 
                                        of terrorism, or providing 
                                        material support or resources 
                                        for terrorism, and there is 
                                        reason to believe such person 
                                        may use a firearm in connection 
                                        with terrorism.
                            ``(ii) Effect.--The temporary, ex parte 
                        order issued under paragraph (A) shall remain 
                        in effect until the proceeding under this 
                        paragraph is resolved.
                            ``(iii) Relief.--If a person who was 
                        prohibited from participating in the transfer 
                        of a firearm or had a license or permit for 
                        firearms or explosive materials revoked 
                        prevails in a proceeding under clause (i), 
                        including on appeal, the person shall be 
                        entitled to all costs, including reasonable 
                        attorney's fees, and the Attorney General shall 
                        immediately remove the individual from the 
                        Terrorism Firearm Screening List.
                            ``(iv) Addition to terrorism firearm 
                        screening list.--If the Attorney General 
                        prevails in a proceeding under clause (i), 
                        including on appeal, the Attorney General may 
                        add the person to the Terrorism Firearm 
                        Screening List.''.
    (c) Transparency.--Not later than 60 days after the date of the 
enactment of this Act, and quarterly thereafter, the Attorney General 
shall submit to the Committee on the Judiciary and the Select Committee 
on Intelligence of the Senate and the Committee on the Judiciary and 
the Permanent Select Committee on Intelligence of the House of 
Representatives a report providing the following information:
            (1) The number of persons added to the Terrorism Firearm 
        Screening List established under section 922A of title 18, 
        United States Code, as added by this Act, during the reporting 
        period.
            (2) The number of persons whose names the Attorney General 
        submitted to the Foreign Intelligence Surveillance Court 
        pursuant to section 922A(b)(2) of title 18, United States Code, 
        as added by this Act, during the reporting period.
            (3) The number of persons described in paragraph (2) whom 
        the Foreign Intelligence Surveillance Court determined, 
        pursuant to section 922A(b)(2) of title 18, United States Code, 
        as added by this Act, that there was not--
                    (A) probable cause to believe the person is or has 
                been engaged in conduct constituting, in preparation 
                for, in aid of, or in support of terrorism, or 
                providing material support or resources for terrorism; 
                or
                    (B) reason to believe the person may use a firearm 
                in connection with terrorism.
    (d) Technical and Conforming Amendments.--
            (1) Table of sections.--The table of sections for chapter 
        44 of title 18, United States Code, is amended by inserting 
        after the item relating to section 922 the following:

``922A. Attorney General's discretion to prohibit transfer of a firearm 
                            and deny or revoke a license or permit.''.
            (2) Technical amendments.--Section 922(t) of title 18, 
        United States Code, is amended--
                    (A) in paragraph (1)(B), by striking clause (ii) 
                and inserting the following:
            ``(ii) 3 business days (meaning a day on which State 
        offices are open) have elapsed since the licensee contacted the 
        system; and
            ``(iii) the system has not notified the licensee that--
                    ``(I) the receipt of a firearm by such other person 
                would violate subsection (g) or (n) of this section or 
                State law; or
                    ``(II) that the transfer has been prohibited 
                pursuant to section 922A of this title;'';
                    (B) in paragraph (2), in the matter preceding 
                subparagraph (A), by inserting ``, and the transfer has 
                not been prohibited pursuant to section 922A of this 
                title'' after ``or State law'';
                    (C) in paragraph (3)--
                            (i) in subparagraph (A)(i)--
                                    (I) in subclause (I), by striking 
                                ``and'' at the end; and
                                    (II) by adding at the end the 
                                following:
                    ``(III) was issued after a check of the system 
                established pursuant to paragraph (1);''; and
                            (ii) in subparagraph (C)--
                                    (I) in clause (ii), by striking 
                                ``and'' at the end;
                                    (II) in clause (iii), by striking 
                                the period and inserting ``; and''; and
                                    (III) by adding at the end the 
                                following:
                    ``(iv) the State issuing the permit agrees to deny 
                the permit application if the applicant is included on 
                the Terrorism Firearm Screening List established by 
                section 922A of this title or to revoke the permit if a 
                court order is entered pursuant to section 922A(e) of 
                this title.'';
                    (D) in paragraph (4), by inserting ``, or that the 
                person is prohibited from participating in a firearm 
                transfer pursuant to section 922A of this title'' after 
                ``or State law''; and
                    (E) in paragraph (5), by inserting ``, or that the 
                person is prohibited from participating in a firearm 
                transfer pursuant to section 922A of this title'' after 
                ``or State law''.
            (3) Unlawful sale or disposition of firearm based upon 
        attorney general discretionary denial.--Section 922(d) of title 
        18, United States Code, is amended--
                    (A) in paragraph (8), by striking ``or'' at the 
                end;
                    (B) in paragraph (9), by striking the period at the 
                end and inserting ``; or''; and
                    (C) by adding at the end the following:
            ``(10) is prohibited from participating in a firearm 
        transfer pursuant to section 922A of this title.''.
            (4) Attorney general discretionary denial as prohibitor.--
        Section 922(g) of title 18, United States Code, is amended--
                    (A) in paragraph (8), by striking ``or'' at the 
                end;
                    (B) in paragraph (9), by striking the comma at the 
                end and inserting ``; or''; and
                    (C) by inserting after paragraph (9) the following:
            ``(10) who has received actual notice of an order entered 
        by a court pursuant to section 922A(e) of this title,''.
            (5) Attorney general discretionary denial of federal 
        firearms licenses.--Section 923(d) of title 18, United States 
        Code, is amended in paragraph (1)--
                    (A) in subparagraph (F), by striking ``and'' at the 
                end of clause (iii);
                    (B) in subparagraph (G), by striking ``device).'' 
                and inserting ``device); and''; and
                    (C) by adding at the end the following:
            ``(H) the applicant is not on the Terrorism Firearm 
        Screening List established by section 922A of this title or 
        subject to an order entered by a court pursuant to section 
        922A(e) of this title.''.
            (6) Discretionary revocation of federal firearms 
        licenses.--Section 923(e) of title 18, United States Code, is 
        amended--
                    (A) by inserting ``(1)'' after ``(e)'';
                    (B) by striking ``revoke any license'' and 
                inserting: ``revoke--
            ``(A) any license;'';
                    (C) by striking ``. The Attorney General may, after 
                notice and opportunity for hearing, revoke the 
                license'' and inserting the following:
            ``(B) the license; and''; and
                    (D) by striking ``. The Secretary's action'' and 
                inserting ``; or
            ``(C) any license issued under this section if the Attorney 
        General determines that the holder of such license (including 
        any responsible person) is on the Terrorism Firearm Screening 
        List established by section 922A of this title.
    ``(2) The Attorney General's action''.
            (7) Provision of grounds underlying ineligibility 
        determination by the national instant criminal background check 
        system.--Section 103 of the Brady Handgun Violence Prevention 
        Act (18 U.S.C. 922 note) is amended--
                    (A) in subsection (f), by striking ``date of the 
                request'' and inserting ``date of the request, provided 
                that if the individual is ineligible by virtue of being 
                included on the Terrorism Firearm Screening List 
                established under section 922A of title 18, United 
                States Code or being subject to a court order under 
                section 922A(e) of title 18, United States Code, the 
                system shall state only that the individual is barred 
                by section 922A of title 18, United States Code.''; and
                    (B) in subsection (g), in the first sentence, by 
                inserting ``or that the individual is prohibited from 
                engaging in a firearm transfer pursuant to section 922A 
                of title 18, United States Code,'' after ``or State 
                law,''.
            (8) Unlawful distribution of explosives based upon attorney 
        general discretionary denial.--Section 842(d) of title 18, 
        United States Code, is amended--
                    (A) in paragraph (9), by striking the period and 
                inserting ``; or''; and
                    (B) by adding at the end the following:
            ``(10) who has received actual notice of an order entered 
        by a court pursuant to section 922A(e) of this title.''.
            (9) Attorney general discretionary denial as prohibitor.--
        Section 842(i) of title 18, United States Code, is amended--
                    (A) in paragraph (7), by inserting ``; or'' at the 
                end; and
                    (B) by inserting after paragraph (7) the following:
            ``(8) who has received actual notice of an order entered by 
        a court pursuant to section 922A(e) of this title,''.
            (10) Attorney general discretionary denial of federal 
        explosives licenses and permits.--Section 843(b) of title 18, 
        United States Code, is amended--
                    (A) in paragraph (6) by striking ``and'';
                    (B) in paragraph (7) by striking ``valid.'' and 
                inserting ``valid; and''; and
                    (C) by adding at the end the following:
            ``(8) the applicant is not disqualified pursuant to section 
        922A of this title.''.
            (11) Attorney general discretionary revocation of federal 
        explosives licenses and permits.--Section 843(d) of title 18, 
        United States Code, is amended by inserting after ``is included 
        on the Terrorism Firearm Screening List established by section 
        922A of this title or subject to an order entered by a district 
        court of the United States pursuant to section 922A(e) of this 
        title,'' after ``this chapter,''.
            (12) Attorney general's ability to withhold information in 
        explosives license and permit denial and revocation suits.--
        Section 843(e) of title 18, United States Code, is amended in 
        paragraph (1), by inserting after the first sentence the 
        following: ``However, if the denial or revocation is based upon 
        the person being disqualified pursuant to section 922A of this 
        title any information which the Attorney General relied on for 
        adding the person to the Terrorism Firearm Screening List 
        established by section 922A of this title or obtaining a court 
        order under section 922A(e) of this title, this determination 
        may be withheld from the petitioner if the Attorney General 
        determines that disclosure of the information would likely 
        compromise national security.''.
            (13) Ability to withhold information in communications to 
        employers.--Section 843(h)(2) of title 18, United States Code, 
        is amended--
                    (A) in subparagraph (A), by inserting ``or in 
                subsection (j) of this section (on grounds of 
                terrorism)'' after ``section 842(i)''; and
                    (B) in subparagraph (B)--
                            (i) in the matter preceding clause (i), by 
                        inserting ``or in subsection (j) of this 
                        section,'' after ``section 842(i),''; and
                            (ii) in clause (ii), by inserting ``, 
                        except that any information that the Attorney 
                        General relied on for adding the person to the 
                        Terrorism Firearm Screening List established by 
                        section 922A of this title or obtaining a court 
                        order under section 922A(e) of this title may 
                        be withheld if the Attorney General concludes 
                        that disclosure of the information would likely 
                        compromise national security'' after 
                        ``determination''.
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