Why the Orlando shooter fell off the FBI’s radar screen

The jumbled picture emerging of Orlando shooter Omar Mateen — his statements to friends and coworkers and his tangled personal history — lay bare the dilemma for law enforcement in confronting the growing threat of home-grown lone wolf terrorists.

FBI Director James Comey summed it up this week. The Bureau isn’t only looking for “needles in a national haystack,” he said. “We are also called upon to figure out which pieces of hay might someday become needles.”

That transformation is not easy to detect, not lawfully at least.  It’s not against U.S. law to criticize the U.S. government in violent terms, or to watch jihadist videos, or even to express support for what terrorists are doingIt’s only illegal when a citizen takes steps to act on these extremist views.

“The key challenge is to figure out, when does an individual move from being aspirational to operational?” says Fran Townsend, former Homeland Security Advisor and counter-terrorism expert in the George W. Bush White House.  And that is much harder when the U.S. individual is a self-starter, or, more specifically, not directed from overseas through communications the government can monitor.

According to FBI director James Comey, the bureau’s 10-month probe into Mateen from May 2013 to March 2014, didn’t produce enough evidence to move him up to the next level of a full-field investigation, much less a prosecution.

“This has been a fear we’ve worried about for a long time — that terrorist violence here would move to the Israeli model,” said a former top legal official at the National Security Agency, or NSA. “Low level attacks, by self-starters, with no overseas connection, attacks that cost the perpetrator little but have a huge impact in loss of American lives and the public’s sense of security.”

But ferreting out an individual’s intent, or predicting his evolution, is hard to do in a nation that’s constitutionally and historically averse to government surveillance of its citizens.  “Changing policy is very complicated,” this same official said. “It’s important not to delude ourselves into thinking we can prevent every attack. That could lead us down a path that perversely leads to more alienation and more attacks.”

Still, in the case of the Orlando shooter, Americans are asking two common-sense questions:

  1. Why wasn’t the FBI even alerted when Omar Mateen — investigated for 10 months for suspected terrorist links or sympathies — tried to buy an assault weapon after the case was “closed?”
  2. Why didn’t the FBI continue to monitor at least his social media postings after it “closed” the case?

The answer to both is the same: after a preliminary FBI investigation is “closed,” the Bureau has no authority to continue scrutiny of a suspected individual’s activities.

It’s worth noting that the closing of the probe doesn’t mean the FBI has cleared the individual of all suspicion; it just means there’s no evidence to move toward prosecution.

“It does in many ways fail the common sense test,” a senior FBI official conceded to me.  “But when we investigate someone at any of the three levels, if after a reasonable time there’s not enough evidence to move it to the next level, we have to close it.  That’s the law, that’s our fundamental system.”

The rules for each level of scrutiny are firmly laid out in a document called “The Attorney General’s Guidelines for Domestic FBI Operations.

Former deputy attorney general Jamie Gorelick notes that the AG guidelines first came into effect after revelations by the 1970s era Church Committee of excesses by the FBI and other intelligence agencies that violated the privacy of American citizens.

The attorney general can change them at any time, and in fact they have been relaxed over the decades. But still, Gorelick says, the hangover remains. “The bureau has been criticized in the past for being too zealous, but that risks their being too mechanical when they close an investigation. If you can’t check a box, you can’t proceed further. There are times that can undermine the use of common sense.” 

“This has become a real topic within the FBI, and a source of frustration,” said a former senior counter-terrorism official. “Agents will say, reporters can monitor someone’s Twitter account or Facebook postings. Why can’t we?  The answer, of course, is that the guidelines reflect the basic principle of protecting freedom of speech.”

“Once the bureau closes an investigation, there is no gray area to use investigative techniques on that person,” said a former senior DOD legal official.  “You can’t justify it by saying Facebook is public. So is walking down the street. But the government isn’t allowed to follow you down a public street without a warrant.  Historically it’s rooted in efforts to balance law enforcements’ interest in preserving security, and the right of citizens to their privacy.”

Yet if, as law enforcement sources tell me, investigators are now discovering a treasure trove of incriminating material in Mateen’s digital trail, including Internet searches, the question will arise again. Why wasn’t law enforcement aware of these clues?

Former FBI deputy director Timothy Murphy appreciates the rationale for ending scrutiny once an investigation is closed — even if the agents have “a spidey sense” or investigative intuition, that something remains suspicious.  “There are agents who say, ‘I don’t feel good about it, but we have to go with the guidelines, if we cannot quantify our suspicions.’ We can’t have endless surveillance of our citizens.”

But Murphy also thinks  the guidelines have to be reviewed and possibly revised. ”Right now the rules aren’t conducive to meet this evolving threat,” he said. “I think there needs to be an expansion of the guidelines and authorities when it comes to home-grown violent extremists, even if they are U.S. citizens.”

Changes may be in the works. Deputy Attorney General Sally Yates said this week the Justice Department would consider a new policy, to have the FBI  alerted if people previously under terrorism investigation try to buy guns.

No doubt that will raise the ire of the National Rifle Association.  And any move to enhance the FBI’s surveillance powers on a once-investigated suspect will face a tough push-back from civil liberties advocates, and many Americans.

How to balance the conflicting security needs and constitutional protections in facing this new threat?  It is, as Winston Churchill once said about Russia, “a riddle, wrapped in a mystery, inside an enigma. But perhaps there is a key.”