David Gomez: How did the FBI miss Orlando shooter Omar Mateen?

[Valin]

Allentown Morning Call:

David Gomez

June 14 2016

 

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.

 

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.

 

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The fact is the FBI's ability to investigate any case is limited by requirements of probable cause to open a full investigation, which stem from the Fourth Amendment. 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.

 

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There are many valid legal, constitutional and privacy arguments for maintaining strong restrictions on the FBI's ability to investigate terrorism. But as more terrorists become successful in hiding from the FBI using encryption and other means, perhaps it is time to revisit the probable-cause standard to open investigations in potential terrorism cases.

 

It's too late for the Orlando victims, but a change in what allows for opening a full FBI investigation may assist in preventing future acts of terrorism. Perhaps it is time for a return to the pre-9/11 standard for investigating terrorists — particularly if the need for the prevention of terrorist acts in the homeland is how the FBI is going to be judged in the future.

 

David Gomez is a former FBI counterterrorism executive in Seattle and current senior fellow at the George Washington University Center for Cyber & Homeland Security. This column initially appeared in Foreign Policy.

 

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H/T Jim Geraghty