How Did the FBI Miss Omar Mateen?
If you follow social media on the topic of the FBI and terrorism, you will find two themes predominate whenever a terrorist incident occurs in the United States. The first is promulgated by conspiracy theorists, anti-law enforcement social activists, and progressive-minded publications that assert that the FBI manufactures terrorism-related crimes to entrap innocent individuals - primarily young Muslims. These are crimes that would-be terrorists are incapable of committing on their own, they say, without the help of an FBI informant or undercover agent. In these scenarios, the FBI leads the poor, unsuspecting proto-terrorist by the hand through the various stages of planning, commitment, obtaining a weapon of mass destruction, and ultimately pulling the fake trigger. When the proto-terrorist is finally arrested, certain segments of the public, press, and pundits howl about how the FBI abused its power and authority to railroad an innocent person.
The second theme that predominates is usually something like, "If you knew about this terrorist and investigated him, why wasn't he arrested and this horrible act prevented?" This theme was played over and over again during the Boston Marathon bombing investigation when it was revealed that Russian police had sought information from the FBI on Tamerlan Tsarnaev's activities in America. Many people thought the FBI should have continued to investigate Tsarnaev until the Boston plot was uncovered. Of course, this is never as simple as it seems - the FBI does not have free rein in a domestic terrorism investigation.
The same arguments are now again ringing out around the country with the revelation that the FBI investigated Orlando shooter Omar Mateen - not once, but twice - over the past several years for terrorism-related associations. Like Tsarnaev, Mateen wasn't arrested and both cases were closed for lack of evidence of a crime.
Is this because the FBI is bad at investigations? Or maybe it's because unless the FBI is playing puppet master, it's incapable of developing the evidence needed to investigate a potential terrorist? As the former head of the Seattle-based Puget Sound Joint Terrorism Task Force (JTTF), I know firsthand that neither of these assertions are true. Literally hundreds of assessments, preliminary inquiries, and full investigations are opened each year by the FBI with the intent of preventing a terrorist attack. But many other cases were not investigated simply because under the current Domestic Investigations and Operations Guide the FBI lacked probable cause to continue.
The fact is the FBI's ability to investigate any case is limited by the requirements of probable cause to open a full investigation, which stem from the Fourth Amendment to the Constitution. Probable cause is a belief based upon articulable facts that would lead a reasonable person to believe an individual has committed, or intends to commit, a crime. It is the standard from which all coercive police powers stem in the United States. Without probable cause based on fact, the FBI cannot open a case, execute a search warrant, or take other appropriate law enforcement action. Both of Mateen's investigations were closed when the FBI determined that he had committed no crime, and had no verifiable intent to commit one in the future. That would have required an overt act on the part of Mateen. But he remained a person of interest to many who knew him, including co-workers and associates.
Lack of probable cause is an important factor. It was one element that prevented the FBI from connecting the dots of the 9/11 plot. Some argue that it may be time to lower the probable-cause threshold in terrorist cases, especially when the Islamic State has so brazenly called for attacks on American civilian targets. On the other hand, staunch supporters of privacy and constitutional limitations on police power argue that nothing justifies changing the standard, arguing that those who compromise privacy for safety have neither. The problem is, as we have seen in Orlando, the price paid for missing these investigative opportunities is high.
So why was it so hard to develop probable cause to believe that Mateen had committed or was about to commit a crime? According to the Washington Post:
Some reasons for the closing of both cases stem from internal restrictions on FBI investigations. The FBI is precluded from opening an investigation on individuals solely based on their free speech. That is, no full investigation can be opened or continued merely on what people say, even if what they say is to pledge support for a terrorist group like the Islamic State. The only thing the FBI can do is conduct a limited review of public and FBI records and interview the subject. Extraordinary investigative techniques like wiretaps, undercover operations, and targeting by an informant are restricted absent probable cause for a full investigation.
Gomez is a former FBI counterterrorism executive in Seattle and current senior fellow at the George Washington University Center for Cyber & Homeland Security.
This story was originally published June 18, 2016 at 11:51 AM with the headline "How Did the FBI Miss Omar Mateen?."