In January 2005, the Government Accountability Office (GAO) reported that during a sampled period between February 3 and June 30, 2004, “a total of 44 firearm-related background checks handled by the FBI and applicable state agencies resulted in valid matches with terrorist watch list records. Of this total, 35 transactions were allowed to proceed because the background checks found no prohibiting information, such as felony convictions, illegal immigrant status, or other disqualifying factors.”

A decade earlier, on January 25, 1993, 28-year-old Mir Aimal Kansi, a Pakistani living in Virginia on a terrorist watch list, opened fire with an AK-47 assault rifle on cars stopped at a red light waiting to make a turn in McLean. Some were waiting to enter the grounds of the Central Intelligence Agency headquarters. Kansi killed two people, both employees of the CIA, and wounded three others. He then fled to Pakistan.

Despite being on a terrorist watch list, Kansi was able to legally purchase the semi-automatic assault rifle he used in the attack from a dealer in Chantilly, Virginia three days before the shooting. Kansi had produced identification to prove his Virginia residency and passed a Virginia State Police computerized background check.

Four years after Kansi fled the United States, after chasing down hundreds of leads that took the FBI and CIA to the four corners of the world, lead FBI Special Agent Brad Garrett had Kansi pinned on a bed in the seedy $3-a-night Shalimar Hotel in Dera Ghazi Kahn, Pakistan, near the Afghanistan border.

Kansi was executed November 14, 2002 by lethal injection in Virginia.

In 2007, two years after the GAO’s report, the Bush Justice Department drafted remedial legislation that it dutifully sent to Congress for consideration.

Acting Assistant Attorney General Richard A. Hertling wrote to Vice President Dick Cheney as president of the Senate to explain that existing laws allow known or suspected terrorists on the terrorist watch list to buy firearms, and proposed a new law that would prohibit them from being able to do so.

Hertling explained that “the criteria for prohibiting the receipt or possession of a firearm are established by 18 U.S.C. 922(g) and (n) and state law. Similarly, the criteria for prohibiting the receipt or possession of explosives are established in 18 U.S.C. 842 and the requirements for federal explosives licenses and user permits are set forth in 18 U.S.C. 843. Pursuant to Brady Handgun Violence Prevention Act of 1993, the Attorney General conducts background checks on individuals purchasing or otherwise receiving firearms from a federal firearms licensee and on individuals seeking firearms or explosives licenses or permits.”

However, Hertling noted, “absent one or more of the prohibiting criteria, there is currently no legal basis for the Attorney General to deny a firearm transfer or a firearms or explosive permit or license based merely on a person's inclusion on a terrorist watch list.”

Hertling stated “there are situations in which it would be counterproductive to mandate the denial of a firearm transfer or a firearm or explosives license or permit to an individual on a terrorist watch list. For example, mandatory denial could in some cases compromise an ongoing investigation or intelligence-collection operation. At the same time, there may be circumstances in which it is important for the Attorney General to have the discretionary authority to deny such transfers, licenses or permits.”

“Accordingly,” Hertling wrote, “the Department of Justice has drafted the … bill titled ‘Denying Firearms and Explosives to Dangerous Terrorists Act of 2007’ for consideration by Congress. The draft legislation provides the Attorney General with discretionary authority to deny the transfer of a firearm or the issuance of a firearm or explosives license or permit when a background check reveals that the candidate is a known or suspected terrorist and the Attorney General reasonably believes that the person may use a firearm or explosives in connection with terrorism. It also establishes appropriate procedures for when an individual seeks to challenge such a determination by the Attorney General.”

Apparently Cheney had no objections to the Bush Justice Department's desire for the legislation. Based on the department’s draft lawmaking, New Jersey Democrat, Sen. Frank Lautenberg, introduced the "Denying Firearms and Explosives to Dangerous Terrorists Act of 2007." Meanwhile, GOP Rep. Peter King from New York, chairman of the House Committee on Homeland Security, introduced companion legislation in the House.

Both bills died in committee. But this past April, King introduced H.R.2159,  the "Denying Firearms and Explosives to Dangerous Terrorists Act of 2009.”

As in 2007, King’s bill has bipartisan support and last week was sent to the Subcommittee on Crime, Terrorism, and Homeland Security.

On Monday, Lautenberg introduced a companion bill (S. 1317) in the Senate, the same day a May GAO report to lawmakers updating its 2005 report was made public. The report concluded that under the current system of background checks for purchasing firearms, people who are on the terrorist watch list can still get away with buying guns as long as there are no “disqualifying” factors that crop up in the National Instant Criminal Background Check System (NICS) inquiry on the person.

According to the new GAO audit, FBI data shows 963 NICS background checks since 2004 resulted in “valid matches with terrorist watch list records.”

Out of these “matches,” approximately 90 percent were allowed to proceed in buying firearms because no other prohibiting information presented itself. Of the ten percent who were denied, they were done so because of other information that prevented the applicants from buying firearms. Federal law states that felons, fugitives, unlawful controlled substance users and persons addicted to a controlled substance and illegal aliens are prohibited from buying firearms in the United States.

“The use of terrorist watch list records in agency screening processes is an integral component of the US government’s counterterrorism efforts,” GAO told lawmakers.

GAO isn't a congressional agency that takes its recommendations lightly or without substantive thought. GAO concluded that “providing the Attorney General with the flexibility to deny firearm purchases or firearm or explosives licenses or permits to subjects of terrorist watch list records when information suggests the purchase could pose a threat to national security would help address concerns that such transactions cannot be denied now unless the subject is otherwise prohibited by federal or state law.”

GAO stated “it would be important to consider the extent to which any new authorities to deny firearm or explosives transactions should include guidelines on the basis for making denials, which would help to ensure that terrorist watch list records are used as intended and that privacy and civil liberties protections are in place.”

GAO recommended that in the event Congress goes ahead with a legislative remedy, it should consider including certain provisions that would require the Attorney General to establish guidelines explaining under what circumstances such authority could be exercised.

"This new report is proof positive that known and suspected terrorists are exploiting a major loophole in our law, threatening our families and our communities," said Lautenberg, one of the lawmakers who requested the May GAO update of its 2005 audit.

Continuing, Lautenberg said “the special interest gun lobby has so twisted our nation’s laws that the rights of terrorists are placed above the safety of everyday Americans. The current law simply defies common sense … This ‘terror gap’ has been open too long and our national security demands that we shut it down.”

Rep. Robert "Bobby” Scott, Chairman of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, said the GAO “report is disturbing and certainly warrants consideration by Congress and the administration. One might reasonably ask what the purpose of a Terrorist Watch List is if those on it are free to acquire firearms and explosives.”

Both Lautenberg and King’s legislation would allow the Attorney General to deny the transfer of a firearm to an applicant if the nation’s top cop determines that the applicant or transferee is known (or appropriately suspected) to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support or resources for terrorism, and has a reasonable belief that the prospective transferee may use a firearm in connection with terrorism.

In response to Lautenberg's bill, the Citizens Committee for the Right to Keep and Bear Arms and the National Rifle Association (NRA) promptly came out against it.

The group said in a statement Monday that the bill “would place unprecedented authority in the hands of the Attorney General to deny someone their Second Amendment rights without having been convicted, or even charged, with any crime. Instead, under this legislation, someone whose name is added - for whatever reason - to a terrorist watch list can suddenly find himself or herself prohibited from exercising their constitutionally-protected rights based on nothing more than suspicion.”

The organization's chairman, Alan Gottlieb, said “Lautenberg has devoted his entire political career to stripping as many citizens as possible of their firearm civil rights.”

The group’s objections to Lautenberg’s bill said nothing about the nearly identical bill that Republican Pete King introduced in April, or that both lawmakers’ bills are similar to bills they’d previously sponsored based on the Bush Justice Department’s originally drafted legislation in 2007.

Similarly, NRA spokesman Andrew Arulanandam told the New York Times that “Senator Lautenberg has always been on the wrong side of the Second Amendment. His approach is not in the interests of public safety.”

“We’re concerned about the quality and the integrity of the list,” Arulanandam said, noting that “there have been numerous studies and reports questioning the integrity, and we believe law-abiding people who are on the list by error should not be arbitrarily denied their civil rights.”

Federal counterterrorist authorities HSToday.us frequently consults said they understand such objections, but that they ultimately must come down on the side of the intent of the legislation "for obvious reasons," as one said. They added that concerns about identified problems with the terrorist watch list are being rectified and that it's their understanding that the language of the bills would prohibit the purchase of guns only by individuals reliable intelligence indicates have some connection to, or involvement in, terrorist groups or activities.

"Not people who are mistakenly on the list ... Those aren't the ones we want to prevent from buying  firearms and explosives," the counterterror official said.