[Congressional Record Volume 162, Number 96 (Thursday, June 16, 2016)]
[Senate]
[Pages S4312-S4314]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 4740. Mr. TOOMEY submitted an amendment intended to be proposed by
him to the bill H.R. 2578, making appropriations for the Departments of
Commerce and Justice, Science, and Related Agencies for the fiscal year
ending September 30, 2016, and for other purposes; which was ordered to
lie on the table; as follows:
At the appropriate place, insert the following:
SEC. __. 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:
``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;
``(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,
[[Page S4313]]
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; and
``(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);
``(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 cancelled.
``(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
``(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; and
``(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
[[Page S4314]]
(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'';
(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''
(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''.
______