[Congressional Record Volume 170, Number 51 (Friday, March 22, 2024)]
[Senate]
[Pages S2612-S2614]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 1805. Mr. MURPHY submitted an amendment intended to be proposed by 
him to the bill H.R. 2882, to reauthorize the Morris K. Udall and 
Stewart L. Udall Trust Fund, and for other purposes; which was ordered 
to lie on the table; as follows:

       At the appropriate place, insert the following:

     SEC. __. DISCRETIONARY AUTHORITY TO DENY TRANSFERS OF 
                   FIREARMS, EXPLOSIVES, AND FIREARMS AND 
                   EXPLOSIVES LICENSES AND PERMITS TO TERRORISTS.

       (a) Authority.--
       (1) In general.--On and after the date of enactment of this 
     Act, in accordance with the procedures under this section, 
     and without regard to section 842, 843, section 922(g) or 
     (n), or section 923 of title 18, United States Code, the 
     Attorney General may deny the

[[Page S2613]]

     transfer of a firearm, not later than 3 business days after a 
     licensee under chapter 44 of title 18, United States Code, 
     contacts the national instant criminal background check 
     system established under section 103 of Public Law 103-159 
     (34 U.S.C. 40901), deny the transfer of an explosive, or deny 
     the issuance of a Federal firearms or explosives license or 
     permit, if either of the following are met:
       (A) No fly list.--The Attorney General determines that the 
     transferee or applicant--
       (i) based on the totality of the circumstances, represents 
     a threat to public safety based on a reasonable suspicion 
     that the transferee or applicant is engaged, or has been 
     engaged, in conduct constituting, in preparation of, in aid 
     of, or related to terrorism, or providing material support or 
     resources therefor; and
       (ii) based on credible information, poses--

       (I) a threat of committing an act of international 
     terrorism or domestic terrorism with respect to an aircraft 
     (including a threat of piracy, or a threat to airline, 
     passenger, or civil aviation security);
       (II) a threat of committing an act of domestic terrorism 
     with respect to the homeland;
       (III) a threat of committing an act of international 
     terrorism against any United States Government facility 
     abroad and associated or supporting personnel, including 
     United States embassies, consulates and missions, military 
     installations, United States ships, United States aircraft, 
     or other auxiliary craft owned or leased by the United States 
     Government; or
       (IV) a threat of engaging in or conducting a violent act of 
     terrorism and is operationally capable of doing so.

       (B) Selectee list.--The Attorney General determines that 
     the transferee or applicant--
       (i) based on the totality of the circumstances, represents 
     a threat to public safety based on a reasonable suspicion 
     that the transferee or applicant is engaged, or has been 
     engaged, in conduct constituting, in preparation of, in aid 
     of, or related to terrorism, or providing material support or 
     resources therefor; and
       (ii) based on credible information, is--

       (I) a member of a terrorist organization (including a 
     foreign terrorist organization designated pursuant to a 
     statute or Executive order); and
       (II) associated with terrorist activity, unless information 
     exists that demonstrates that the application of secondary 
     screening to such individual is not necessary.

       (2) NICS.--Solely for purposes of sections 922(t) (1), (2), 
     (5), and (6) of title 18, United States Code, and section 
     103(g) of Public Law 103-159 (34 U.S.C. 40901(g)), a denial 
     by the Attorney General under paragraph (1) shall be treated 
     as equivalent to a determination that receipt of a firearm 
     would violate subsection (g) or (n) of section 922 of title 
     18, United States Code. During the 3-business-day period 
     beginning when a licensee under chapter 44 of title 18, 
     United States Code, contacts the national instant criminal 
     background check system established under section 103 of 
     Public Law 103-159 (34 U.S.C. 40901), and notwithstanding 
     section 922(t)(2) of title 18, United States Code, the 
     Attorney General may delay assigning a unique identification 
     number to a transfer of a firearm in order to determine 
     whether the transferee or applicant meets the requirements 
     under paragraph (1).
       (b) Notification of Prospective Firearms and Explosives 
     Transfers to Known or Suspected Terrorist.--The Attorney 
     General and Federal, State, and local law enforcement shall 
     be immediately notified, as appropriate, of any request to 
     transfer a firearm or explosive to a person who is, or within 
     the previous 5 years was, identified in the Terrorist 
     Screening Database maintained by the Terrorist Screening 
     Center of the Federal Bureau of Investigation.
       (c) Review of Denial.--
       (1) Remedial procedures and petition for review.--
       (A) In general.--An individual who is a citizen or lawful 
     permanent resident of the United States and who seeks to 
     challenge a denial by the Attorney General under subsection 
     (a)(1) may--
       (i) pursue the remedial procedures under section 103(g) of 
     Public Law 103-159 (34 U.S.C. 40901(g)); or
       (ii) file a petition for review and any claims related to 
     that petition in the United States District Court for the 
     District of Columbia or in the district court of the United 
     States for the judicial district in which the individual 
     resides.
       (B) Exhaustion not required.--A petitioner is not required 
     to exhaust the remedial procedures authorized under clause 
     (i) of subparagraph (A) before filing a petition for review 
     under clause (ii) of subparagraph (A).
       (C) Procedures.--Notwithstanding any other provision of 
     law, the Attorney General may promulgate regulations 
     governing proceedings under subparagraph (A)(i) to prevent 
     the unauthorized disclosure of information that reasonably 
     could be expected to result in damage to national security or 
     ongoing law enforcement operations.
       (2) Deadlines for filing.--
       (A) In general.--Except as provided in subparagraph (B), a 
     petition for review under paragraph (1)(A)(ii), and any 
     claims related to that petition, shall be filed not later 
     than the earlier of--
       (i) 1 year after the petitioner receives actual notice of 
     the reason for the denial by the Attorney General; or
       (ii) 5 years after the petitioner receives notice of the 
     denial by the Attorney General.
       (B) Exception.--The district court in which a petition for 
     review is to be filed under paragraph (1)(A)(ii) may allow 
     the petition to be filed after the deadline specified in 
     subparagraph (A) only if there is good cause for not filing 
     by that deadline.
       (3) Authority of district courts.--The district court in 
     which a petition for review is filed under paragraph 
     (1)(A)(ii)--
       (A) shall have--
       (i) jurisdiction to decide all relevant questions of law 
     and fact; and
       (ii) exclusive jurisdiction to affirm, amend, modify, or 
     set aside any part of the denial of the Attorney General that 
     is the subject of the petition for review; and
       (B) may order the Attorney General to conduct further 
     proceedings.
       (4) Exclusive jurisdiction.--
       (A) In general.--No district court of the United States or 
     court of appeals of the United States shall have jurisdiction 
     to consider the lawfulness or constitutionality of this 
     section except pursuant to a petition for review under 
     subsection (c)(1)(A)(ii).
       (B) Noncitizens.--No district court of the United States or 
     court of appeals of the United States shall have jurisdiction 
     to hear any claim by an individual who is not a citizen or 
     lawful permanent resident of the United States related to or 
     arising out of a denial by the Attorney General under 
     subsection (a)(1).
       (d) Requirement for an Administrative Record and Procedures 
     for Judicial Review.--Notwithstanding any other provision of 
     law, the following procedures shall apply with respect to a 
     petition for review filed in a district court under 
     subsection (c)(1)(A)(ii):
       (1) The United States shall file with the court an 
     administrative record, which shall consist of--
       (A) the information the Attorney General relied upon in 
     denying the transfer or application;
       (B) a summary of known material mitigation information;
       (C) any information the petitioner has submitted pursuant 
     to any administrative process; and
       (D) any information determined relevant by the United 
     States.
       (2)(A) The petitioner may file with the court any 
     information determined relevant by the petitioner.
       (B) With leave of the court, the United States may 
     supplement the administrative record with additional 
     information.
       (3) All information in the administrative record that is 
     not classified and is not otherwise privileged or subject to 
     statutory protections shall be provided to the petitioner.
       (4) No discovery shall be permitted, unless the court shall 
     determine extraordinary circumstances requires discovery in 
     the interests of justice.
       (5) Sensitive security information contained in the 
     administrative record may only be provided to petitioners 
     counsel, pursuant to a protective order.
       (6)(A) The administrative record may include classified 
     information, which the United States shall submit to the 
     court in camera and ex parte. The court shall review all 
     classified information in camera and ex parte unless it 
     enters an order under paragraph (C).
       (B) The United States shall notify the petitioner if the 
     administrative record filed under paragraph (1) contains 
     classified information.
       (C) The court is authorized to determine the extent to 
     which cleared counsel shall be permitted to access classified 
     information necessary to protect the due process rights of a 
     petitioner and enter an appropriate order.
       (D)(i) If the court enters an order under subparagraph (C) 
     providing for the disclosure of information and the United 
     States files with the court an affidavit of the Attorney 
     General objecting to the disclosure, the court shall order 
     that the information not be disclosed.
       (ii) If information is not disclosed under clause (i), the 
     court shall enter such an order as the interests of justice 
     require, which may include an order quashing the denial by 
     the Attorney General under subsection (a)(1).
       (iii) An order under subparagraph (C) or clause (ii) of 
     this subparagraph shall be subject to review by a court of 
     appeals pursuant to section 1292 of title 28, United States 
     Code.
       (iv) An order under clause (ii) shall be administratively 
     stayed for 7 days.
       (v) The functions and duties of the Attorney General under 
     this subparagraph--
       (I) may be exercised by the Deputy Attorney General, the 
     Associate Attorney General, or by an Assistant Attorney 
     General designated by the Attorney General for such purpose; 
     and
       (II) may not be delegated to any other official.
       (E) Any information disclosed under subparagraph (C) shall 
     be subject to an appropriate protective order.
       (7)(A) The administrative record may include information 
     obtained or derived from an order issued under the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
     seq.), without regard to subsections (c), (e), (f), (g), and 
     (h) of section 106 (50 U.S.C. 1806), subsections (d), (f), 
     (g), (h), and (i) of section 305 (50 U.S.C. 1825), 
     subsections (c), (e), (f), (g), and (h) of section 405 (50 
     U.S.C. 1845), and section 706 (50 U.S.C. 1881e) of that Act. 
     If the United States intends to use such information against 
     an aggrieved

[[Page S2614]]

     person (as defined in section 101, 301, or 401 of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801, 1821, 
     and 1841)), it shall provide in camera and ex parte notice to 
     the court concerning such use.
       (B) If the court receives a notice under subparagraph (A), 
     the court shall review, in camera and ex parte, the order 
     described in that subparagraph and any other materials that 
     may be submitted by the United States.
       (C) If the court determines that the order described in 
     subparagraph (A) was not lawfully authorized, or the 
     information was not obtained in conformity with the order, it 
     shall exclude such information from consideration as part of 
     the administrative record.
       (8) Any classified information, sensitive security 
     information, law enforcement sensitive information, or 
     information that is otherwise privileged or subject to 
     statutory protections, that is part of the administrative 
     record, or cited by the court or the parties, shall be 
     treated by the court and the parties consistent with the 
     provisions of this subsection, and shall be sealed and 
     preserved in the records of the court to be made available in 
     the event of further proceedings. In no event shall such 
     information be released as part of the public record.
       (9) The court shall award reasonable attorney fees to a 
     petitioner who is a prevailing party in an action under this 
     section.
       (10) After the expiration of the time to seek further 
     review, or the conclusion of further proceedings, the court 
     shall return the administrative record, including any and all 
     copies, to the United States. All privileged information or 
     other information in the possession of counsel for the 
     petitioner that was provided by the United States under a 
     protective order shall be returned to the United States, or 
     the counsel for the petitioner shall certify its destruction, 
     including any and all copies.
       (e) Scope of Review.--The district court shall quash any 
     denial by the Attorney General under subsection (a)(1), 
     unless the United States demonstrates, based on the 
     administrative record, on a de novo review of fact and law--
       (1) that the transferee or applicant--
       (A) based on the totality of the circumstances, represents 
     a threat to public safety based on a reasonable suspicion 
     that the transferee or applicant is engaged, or has been 
     engaged, in conduct constituting, in preparation of, in aid 
     of, or related to terrorism, or providing material support or 
     resources therefor; and
       (B) based on credible information, poses--
       (i) a threat of committing an act of international 
     terrorism or domestic terrorism with respect to an aircraft 
     (including a threat of piracy, or a threat to airline, 
     passenger, or civil aviation security);
       (ii) a threat of committing an act of domestic terrorism 
     with respect to the homeland;
       (iii) a threat of committing an act of international 
     terrorism against any United States Government facility 
     abroad and associated or supporting personnel, including 
     United States embassies, consulates and missions, military 
     installations, United States ships, United States aircraft, 
     or other auxiliary craft owned or leased by the United States 
     Government; or
       (iv) a threat of engaging in or conducting a violent act of 
     terrorism and is operationally capable of doing so; or
       (2) that the transferee or applicant--
       (A) based on the totality of the circumstances, represents 
     a threat to public safety based on a reasonable suspicion 
     that the transferee or applicant is engaged, or has been 
     engaged, in conduct constituting, in preparation of, in aid 
     of, or related to terrorism, or providing material support or 
     resources therefor; and
       (B) based on credible information--
       (i) is a member of a terrorist organization (including a 
     foreign terrorist organization) designated pursuant to a 
     statute or Executive order; and
       (ii) is associated with terrorist activity, unless 
     information exists that demonstrates that the application of 
     secondary screening to such individual is not necessary.
       (f) Effect of Quashing.--If the district court quashes a 
     denial by the Attorney General under subsection (e), 
     notwithstanding any other provision of law, the Attorney 
     General shall--
       (1) for a denial of the transfer of a firearm, cause a 
     unique identifier to issue pursuant to section 922(t)(2) of 
     title 18, United States Code, not later than 3 days after the 
     issuance of the order under subsection (e); and
       (2) for a denial of a license or permit, expeditiously 
     issue a license or permit under chapter 40 or 44 of title 18, 
     United States Code, as applicable.
       (g) Review of Decision of District Court.--A final decision 
     of a district court under this section shall be subject to 
     review by a court of appeals in accordance with section 1291 
     of title 28, United States Code.
       (h) Exclusive Remedies.--The remedial procedures and a 
     petition for review authorized under subsection (c)(1)(A) 
     shall be the sole and exclusive remedies for a claim by an 
     individual who challenges a denial under subsection (a)(1).
       (i) Expedited Consideration.--
       (1) Courts.--Not later than 14 days after the date on which 
     a petition is filed challenging a denial under subsection 
     (a)(1), a district court shall determine whether to quash the 
     denial, unless the petitioner consents to a longer period.
       (2) Of quashing.--If the district court quashes a denial by 
     the Attorney General under subsection (e), a petitioner may 
     submit the order quashing the denial to the Department of 
     Homeland Security for expedited review, as appropriate.
       (j) Transparency.--Not later than 60 days after the date of 
     enactment of this Act, and quarterly thereafter--
       (1) 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--
       (A) the number of individuals denied a firearm or 
     explosives transfer or a license or permit under subsection 
     (a)(1) during the reporting period;
       (B) the number of petitions for review filed under 
     subsection (c)(1)(A)(ii); and
       (C) the number of instances in which a district court 
     quashed a denial by the Attorney General under subsection 
     (e); and
       (2) the Secretary of Homeland Security shall submit to the 
     Committee on Homeland Security and Governmental Affairs, the 
     Select Committee on Intelligence, and the Committee on the 
     Judiciary of the Senate and the Committee on Homeland 
     Security, the Permanent Select Committee on Intelligence, and 
     the Committee on the Judiciary of the House of 
     Representatives a report providing--
       (A) the number of individuals--
       (i) with respect to whom a district court quashed a denial 
     by the Attorney General under subsection (e); and
       (ii) who submitted the order quashing the denial to the 
     Department of Homeland Security under subsection (i)(2); and
       (B) a description of the actions taken and final 
     determinations made by the Department of Homeland Security 
     with regard to submissions described in subparagraph (A)(ii) 
     respecting the status of individuals on the No Fly List or 
     Selectee List, including the length of time taken to reach a 
     final determination.
       (k) Definitions.--In this section:
       (1) Classified information.--The term ``classified 
     information'' has the meaning given that term in section 1(a) 
     of the Classified Information Procedures Act (18 U.S.C. 
     App.).
       (2) Domestic terrorism.--The term ``domestic terrorism'' 
     has the meaning given that term in section 2331(5) of title 
     18, United States Code.
       (3) International terrorism.--The term ``international 
     terrorism'' has the meaning given that term in section 
     2331(1) of title 18, United States Code.
       (4) Military installation.--The term ``military 
     installation'' has the meaning given that term in section 
     2801(c)(4) of title 10, United States Code.
       (5) National security.--The term ``national security'' has 
     the meaning given that term in section 219 of the Immigration 
     and Nationality Act (8 U.S.C. 1189).
       (6) Sensitive security information.--The term ``sensitive 
     security information'' has the meaning given that term by 
     section 1505 of title 49, Code of Federal Regulations, or any 
     successor thereto.
       (7) Terrorist activity.--The term ``terrorist activity'' 
     has the meaning given that term in section 212(a)(3)(B) of 
     the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)).
       (l) Rule of Construction.--Nothing in this section shall be 
     construed to--
       (1) except as set forth in this section, authorize the 
     Attorney General to modify the length of period before a 
     firearm may be transferred under section 922(t) of title 18, 
     United States Code; or
       (2) apply to any claim other than a claim challenging the 
     denial of a firearm, explosive, or issuance of a firearm or 
     explosives permit or license by the Attorney General.
                                 ______