WASHINGTON — The U.S. intelligence official was troubled.
Intelligence agencies around the world were struggling to get an adequate hold on the increasing number of decentralized lone wolf attacks, often done in the name of ISIS. The official didn’t reference any specific warning, but something wasn’t sitting right. It had been over two months since three ISIS-linked bombings had killed 32 people in Brussels and half a year since a coordinated attack in Paris killed 130.
“Something big is going to happen,” the official told BuzzFeed News last week. It would only be a matter of time until another attack, though the official was skeptical it would happen on U.S. soil.
In hindsight, it was an ominous conversation; just days later, gunman Omar Mateen, who pledged allegiance to ISIS in his final moments, would shoot his way through an Orlando gay club and kill 49 in the worst mass shooting in modern U.S. history.
The official’s foreshadowing underscores a deep-seated unease that has permeated the U.S. intelligence community in the wake of so-called lone-wolf attacks. The rise of this ISIS-inspired terror — attacks that are committed by someone who pledges allegiance to the group and is inspired by online propaganda, but aren’t directed by the group itself — has laid bare challenging pores in the domestic U.S. counterterror dragnet, which is often criticized for being too wide-reaching.
Mateen, the 29-year-old Florida security guard who opened fire in Pulse nightclub early Sunday morning, had been on the FBI’s radar before. Twice, he was investigated, once for claiming to have extremist ties, once for attending the same mosque as the first American suicide bomber in Syria. And twice, those cases were closed without federal findings. Mateen’s name was removed from all watchlists.
The FBI was following protocol, and doing exactly what civil liberties advocates say it should: If evidence against someone doesn’t amount to a chargeable crime, they shouldn’t be watched by the government. How the FBI should have known about Mateen — and if it should explore changing practice — gets into very difficult constitutional territory.
“[Mateen] went off the watchlist. They automatically go on the watchlist when an investigation starts, and he went off. [After that] he’s not deprived of any other right,” Sen. Richard Burr, the chair of the Senate Intelligence panel, told a group of journalists this week. “He’s an American citizen, and to apply it differently…I think that’s very dangerous.”
So it only took about 15 minutes for Mateen to be cleared to buy the assault rifle, originally reported as an AR-15 and later as a Sig Sauer MCX, that he would use to murder 49 people. The store clerk, under typical Florida practice, would have picked up the phone and called a hotline for the Florida Department of Law Enforcement, and waited to hear either “A” for approved, “CN” for conditional, or “N” for non-approval.
If Mateen had still been on an FBI watchlist, his attempt to purchase a high-powered assault weapon might have, if nothing else, paused there. The FBI would have at least been notified that a former suspect was trying to buy firearms.
Instead, Omar Mateen walked out of a Florida gun shop, legally cleared to buy his high-powered assault rifle within minutes. The FBI was not notified, outside of the standard background check that wouldn’t have tied him to any prior inquiry. Both investigations into his terror ties had been closed without federal findings, and his name had been long scrubbed off any watchlist. Until early Sunday morning, the feds had no idea that a twice-investigated terror suspect had picked up what would become a fatal arsenal.
The gun shop, St. Lucie Shooting Center, followed protocol. Its owner, Ed Henson, a former NYPD police detective, told NBC the store did “everything by the book.”
“For our gun store, we’re all blown away at how he was allowed to purchase that gun when the FBI had interviewed him that many times,” said David Shoopman, a National Rifle Association instructor at Boom Boom’s Guns and Ammo, a weapons store in central Florida, just inland from the St. Lucie Shooting Center. “We have cops that come in that aren’t allowed to take their gun the same day because they got in trouble for something stupid as a kid. But then somebody that the FBI has actively investigated a couple times for terrorism…that should’ve been a red flag somewhere.”
But, it wasn’t, and since Mateen was never charged with any crime, under current law, it shouldn’t have been.
“Our extraordinary personnel...have prevented many attacks and saved many lives,” President Barack Obama said in an address Tuesday afternoon. “We work to succeed 100 percent of the time. An attacker…only has to succeed once.”
Somewhere, the system to catch potential attackers in the U.S. has a pinch point. Gun control advocates say it’s at the gun shop counter. Republican presidential candidate Donald Trump and some of his supporters say it’s at the borders, though Mateen, for one, was a native-born U.S. citizen. Some intelligence officials say it’s in the interrogation room, or at the FBI’s counterterror division, or in a loosely-patrolled cyberspace.
“We don’t have a list of suspicious people. We may not like what he says, we may not like how he acts, but if the investigation ends and there are no federal findings…at this point, there is no investigation, so there are no more barriers [on the federal side],” one federal law enforcement official said, requesting anonymity as he wasn’t authorized to discuss the matter publicly. “That appears to be what happened here.”
The FBI declined to comment on the record about Mateen’s status on a watchlist, and deferred all questions related to Mateen’s status to its Terrorist Screening Center.
“The Terrorist Screening Center does not publicly confirm nor deny whether any individual may be included in the U.S. Government’s Terrorist Screening Database (TSDB) or a subset list,” TSC spokesman Dave Joly said. “Disclosure of an individual’s inclusion or non-inclusion in the TSDB or on the No Fly List would significantly impair the government’s ability to investigate and counteract terrorism, and protect transportation security.”
Wherever that gap is, Mateen isn’t the first former-suspect-turned-attacker to slip through the FBI’s fingers. The bureau was previously tipped off about Boston bomber Tamerlan Tsarnaev — to whom Mateen reportedly claimed ties in his last moments — and had investigated him for extremist connections nearly two years before Tsarnaev, joined by his brother Dzhokhar, brought a bloody carnage to the finish line of the Boston marathon. And Syed Farook and Tashfeen Malik, who shot and killed 14 people in San Bernadino last December, were never on the bureau’s radar until they opened fire, despite having exchanged private messages online about jihad and martyrdom before Malik emigrated to the US in 2014.
“Yeah,” there’s a gap here, said Sen. Ron Wyden, (D-Ore.), a member of the Senate’s Intelligence panel.
Democratic presidential candidate Hillary Clinton called Monday morning for an “intelligence surge,” and stressed the need for tech companies to help government officials disrupt terror plots. That battle, though, has been fought before — in the wake the San Bernardino terror attack, both Clinton and Obama urged tech companies to be more cooperative in shutting down and flagging extremist activity online.
The coming weeks will show just how hairy a potential solution to this gap could be. Congress has tried multiple times to legally force tech companies to not only shut down, but report terror activity on their platforms to government officials, a mandate that tech companies and civil liberties groups have fought in the past, saying it mutes internet freedom. And Democrats said Tuesday that they planned to revive a bill that would keep individuals on a government terror watchlist from legally purchasing firearms, a measure that has been blocked by the GOP and opposed by the National Rifle Association in the past — despite more than 2,000 terror suspects legally purchasing firearms from 2004 to 2014.
The FBI, meanwhile, has come under fierce criticism for its handling of domestic counterterror stings in the past, accused by civil liberties and human rights groups of inventing plots and entrapping otherwise benign, albeit hate-filled suspects in a tangled web of undercover FBI informants.
“What I want are policies that make us safer and protect our liberties,” Wyden said. “And too often, particularly when there’s a knee jerk response after a tragedy, America gets policies that do less of both.”