When Idaho Republican Sen. Larry Craig introduced his bill last month to shield the gun industry from lawsuits, he claimed it was nearly identical to a similar measure that went down in a series of parliamentary maneuvers on the Senate floor in March 2004. The bill would quash all suits against the gun industry, except where evidence proves a dealer knowingly broke the law. When lawmakers come back from Easter recess, they're expected to take up the legislation, and with Congress more Republican and more pro-gun than it was last year, the bill is considered more likely to pass this time.
But Craig has slipped in a so far widely unnoticed provision that gun industry experts say goes way beyond the one that died in the last Congress. It would bar "administrative proceedings" against the gun industry, which means that along with being immune from most lawsuits, dealers -- even unscrupulous ones -- would no longer have to worry about having their licenses revoked. The Bureau of Alcohol, Tobacco, Firearms and Explosives uses such administrative proceedings to regulate the gun industry. But under Craig's provision, the ATF's authority would be greatly curtailed.
When I showed the provision to some industry experts, they were stunned that Congress was poised to make gun dealers and manufacturers virtually free from the authority of both the courts and law enforcement. Robert Ricker, a gun control advocate and former gun industry lobbyist, said the new provision is a dream for the industry. "This is much broader than last year. The [National Rifle Association] has been able to sell this as protecting the Second Amendment. And it goes way beyond that."
The gun industry and its supporters defend the new bill, saying frivolous lawsuits threaten to bankrupt their companies and deal a blow to the economy as a whole -- all for manufacturing a legal product that works as advertised. "To blame [the gun industry] for the criminal misuse of firearms that are lawfully manufactured and sold is unjust," Rodd Walton, general counsel of gun manufacturer SIGARMS Inc., told a congressional panel this month.
But gun control advocates say they are dumbfounded by the timing of Congress' effort to indemnify the gun industry because it will come just weeks after the release of a troubling report on guns and terrorism. A Government Accountability Office report released earlier this month said that at least 36 individuals on the federal terrorist "watch list" have walked into gun shops and bought weapons. The report makes the current effort in Congress to provide immunity to the industry painfully ironic to the gun control crowd. "It really ought to be an embarrassment that Congress would push this bill in the wake of a report that terrorists are buying guns over the counter," said Dennis Henigan, legal action project director at the Brady Center to Prevent Gun Violence.
Observers say the strange juxtaposition speaks to the momentous clout of the National Rifle Association and the gun industry -- and may have exposed like never before a glaring blind spot in homeland security. Where the Bush administration's "war on terror" has conflicted with the interests and raw political power of the gun lobby, mounting evidence shows that the war consistently loses. Henigan noted that suspects on the government's terror watch list cannot board airplanes or cruise ships, but they can buy assault weapons. "There is no question that this radical pro-gun ideology trumps the war on terror," he said. "It is quite striking."
Some gun law experts say the Bush administration has shown a remarkable willingness to push the edge of the civil liberties envelope, citing the necessities of war -- the "sneak and peak" provisions of the USA PATRIOT Act and the naming of U.S. citizens as "enemy combatants" being prime examples. But as conservatives have consolidated power since 9/11, they have done little to stop would-be terrorists from arming themselves here in the United States. And as they have pursued an agenda that includes an ostensible dedication to preserving the sanctity of the Second Amendment, their success may have had the unintended consequence of making it easier, not harder, for terrorists to get guns.
"Nothing has been done, and in fact it has gone the other way," said Ricker. "Look at the whole way the administration has handled things since 9/11. There is a constitutional right to travel, for example, but [the administration is willing to] restrict rights to travel. They have [attacked terrorism] through banking and financial transactions. But as far as guns go -- the Second Amendment -- it is wide open."
We rarely first think of terrorists' connections with guns so much as their use of other weapons, like explosives or hijacked airplanes. Yet, remember the indelible image of the crouching Osama Bin Laden, aiming an AK-47 assault weapon; or gun-stockpiling Timothy McVeigh's obsession with "The Turner Diaries," in which a gun enthusiast blows up FBI headquarters to protest tighter gun laws. Should armed terrorists attack a domestic target with assault weapons tomorrow, it would not be as if we weren't warned. The "How Can I Train Myself for Jihad" manual, reportedly found in safe houses in Kabul, Afghanistan, recommends that terrorists arm themselves with assault weapons. "In other countries, e.g. some states of USA, South Africa, it is perfectly legal for members of the public to own certain types of firearms," the manual says. "If you live in such a country, obtain an assault rifle legally, preferably AK-47 or variations, learn how to use it properly and go and practice in the areas allowed for such training." According to the GAO report, that is exactly what is happening.
In the January/February issue of the Atlantic Monthly, former national coordinator for security and counterterrorism Richard Clarke looks back on potential terror attack scenarios. In one, he imagined four terrorists attacking the Mall of America in Minnesota, armed with TEC-9 submachine guns, street-sweeper 12-gauge shotguns and dynamite. They killed 300 and wounded 400. "It had not been hard for the terrorists to buy all their guns, legally, in six different states across the Midwest," Clarke warns.
And indeed, as the GAO reported, it seems that some potential terrorists are buying guns legally. I wanted to see what they could get their hands on. After a 15-minute written safety quiz at the local National Rifle Association range in Northern Virginia (answers are provided), I put 34 bullets into the head and neck of a human-shaped target from 150 meters away, using an M-16 propped on a table and fitted with a small scope. I missed four times. I had never shot a gun before in my life, but I can go to the local gun shop and buy one. And a frightening array of weapons is now on the market that would put the M-16 to shame. Last November, the Department of Homeland Security sent an "Officer Safety Alert" to agents warning them about the FN Herstal Five-Seven. It's a handgun that can penetrate body armor, a capability usually reserved for rifles. According to FN Herstal's Web site touting the gun: "Enemy personnel, even wearing body armor, can be effectively engaged up to 200 meters."
Tennessee-based Barrett Firearms Manufacturing makes the 82A1 .50 caliber sniper rifle. Accurate from a mile away, the rifle's huge round can go through an engine block or take down an airplane or helicopter. A May 2003 after-action report from an Army sniper team in Iraq with the 82nd Airborne describes the power of a Barrett .50 caliber sniper rifle. The report said the rifle was used "to engage both vehicular and personnel targets out to 1,400 meters." It said the snipers liked the rifle, in part, because of the "psychological impact on other combatants that viewed the destruction of the target." A sniper team using that rifle reported: "My spotter positively identified a target at 1,400 meters carrying [a rocket-propelled grenade] on a water tower. I engaged the target. The top half of the torso fell forward out of the tower and the lower portion remained in the tower." The report says that in some cases, targets were disintegrated when shot with the rifle. These guns are widely available, and no special license is needed to buy one.
If Craig's bill passes, the ATF will have little or no ability to take away the license of a dealer who unscrupulously allows Herstal Five-Sevens or .50 caliber sniper rifles to flow into the wrong hands. Joe Vince, the former chief of the ATF's Crime Gun Analysis Branch, said the bill's new provision barring "administrative proceedings" would severely hamper his old agency. "When they are talking about administrative, what that means is they cannot lose their license," Vince said. "So there is no regulatory power." The ATF reports that 1 percent of gun dealers are responsible for nearly 60 percent of the guns traced to a crime. Vince agreed that most gun dealers play by the rules. "So who are they protecting here?" Vince asked.
The sponsor of the House version of Craig's immunity bill, Florida Republican Cliff Stearns, said the new language means the ATF can only take away a license if it can prove that a gun dealer "willfully or knowingly" violates the law -- the same standard the bill sets up to let some lawsuits proceed. "If that's the case, the ATF can still revoke a license," Stearns said in a statement to Salon. A spokesman for Craig said the senator agrees with Stearns.
But Brian J. Siebel, a senior attorney at the Brady Center, disagrees. He said it is a "real admission" that Stearns admits he is curtailing the ATF's authority at all. He points out that the wording of the legislation does appear to tie the ATF's hands in all cases. "He is trying to pull the wool over your eyes," said Siebel.
Stearns and his supporters make a big deal out of the fact that their bill still holds dealers accountable to the ATF or the courts where it is clear a dealer purposely broke the law. But critics say gun dealers know the loopholes. In the case of the D.C. sniper, the bureau found that the dealer had lost 283 guns over three years, sparking allegations that that it was actually illegally selling guns to criminals off the books. The gun dealer's inventory magically shrank while its guns showed up in the hands of criminals. There were no records proving the dealer knew he was breaking the law. That dealer, Bull's Eye, was among the top 1 percent of dealers in numbers of guns traced to a crime.
If Craig's legislation passes, it will be the latest in a long line of actions since Bush took office making powerful guns easier to get and harder to trace, even as politicians on both sides of the aisle claim to be getting tough on terrorism. In a speech to the United Nations soon after 9/11, Bush had called on the world to crack down on terrorists' financing, improve intelligence, coordinate law enforcement and keep guns out of terrorists' hands. "In this war on terror, each of us must answer for what we have done or what we have left undone," Bush told the U.N. General Assembly on Nov. 10, 2001. "We have a responsibility to deny weapons to terrorists and to actively prevent private citizens from providing them."
Yet, under a law Bush signed in January 2004, the government now destroys in 24 hours all records from background checks of gun purchasers. Critics had said keeping the records would help the government track fraud and abuse. In his hypothetical scenario at the Mall of America, Clarke writes: "This meant that if a gun buyer subsequently turned up on the new Integrated Watch List, or was discovered by law-enforcement officials to be a felon or a suspected terrorist, when government authorities tried to investigate the sale, the record of the purchase would already be on the way to the shredder." Right after 9/11, then-Attorney General John Ashcroft refused to give the FBI access to records that might have helped determine if any of the 1,200 people detained immediately after the attacks had sought to buy weapons.
In September 2004, Congress allowed the ban on assault weapons to expire. President Bush has said he supports the ban, and has faced harsh criticism for expending little political capital to extend it. Gun rights groups say the ban was mostly aesthetic. But perhaps most important, the ban also outlawed ammunition clips larger than 10 rounds. Now, clips are unregulated, giving potential terrorists more continuous firepower for their high-powered weapons.
While the government's "war on terror" continues, Congress also has not yet closed the "gun show loophole." Sales at gun shows are completely unregulated in most states, and most purchases require no background checks. There is concern that the shows are open-air bazaars for criminals, and possibly terrorists. Congress also passed what is known as the "Tiahrt Amendment," named after Kansas Republican Rep. Todd Tiahrt. It keeps secret from the public ATF data tracing weapons used in crimes.
Congress and the White House have also failed to close the loophole that allows people on federal watch lists to legally buy guns. Congress has previously come up with a raft of reasons to bar a gun purchase, such as the 1968 ban for felons or illegal immigrant status. But more than three years after 9/11, being a suspected terrorist doesn't disqualify one from buying a gun. FBI Director Robert Mueller told a House panel this month that perhaps that should be changed. "We ought to look at what can be done to perhaps modify the law to limit that person's access to a weapon," Mueller said. Justice Department officials said no proposal to do that is forthcoming. Kevin Madden, a department spokesman, said preventing terrorists from buying guns might alert them that they were under surveillance. "The terrorist watch list is an intelligence watch list that is constantly evolving," Madden told me.
The ATF said it doesn't hunt terrorists, per se, but that it does go after gun criminals and hopes terrorists get caught in the net. "Our criminal efforts are also our terrorism efforts," said ATF spokesman Drew Wade. "We have to enforce the laws of the land. So hopefully enforcing the laws of the land will help with terrorism as well." The ATF said firearms investigations have increased 93 percent over the past five years, and the number of defendants referred for prosecution on firearms violations has increased 135 percent over the same period.
Ricker, the former gun show lobbyist, worries about indications that the new bill giving immunity to the gun industry will pass. He said he bets that few lawmakers even know about the provision that would hog-tie the ATF. "I think it is incredible that the Republicans are kowtowing to a strong political ally, the NRA. That is now spilling over to things like this immunity bill. They just say, 'This is [about] guns; I'm voting for it.' They obviously have not even read the bill."