The mass slaughter at an LGBT nightclub in Orlando was performed by a man known for years to federal law enforcement but whose connections to terrorism were found to be insubstantial, highlighting a vexing problem for counter-terrorism investigators and privacy advocates.
US officials, former FBI agents and counter-terrorism experts say the FBI retains significant data on people it interviews even after it determines they do not pose a security threat, and caution that spreading that information beyond the bureau carries with it a “profound” risk to privacy rights.
US officials have for years warned that so-called “lone wolf” terrorists, unconnected to established and monitored extremist groups, are notoriously difficult to identify in advance of an attack. But in the case of Orlando shooter Omar Mateen, the apparent lone wolf was a known quantity to the FBI.
FBI counter-terrorism officials “pursue all possible leads and once that’s been exhausted, it’s closed”, said Erroll Southers, a former FBI counterintelligence and terrorism agent.
“If there’s nowhere else to go, there’s nowhere else to go, and it appears in Mr Mateen’s case, there was nowhere else to go and they closed it. That was the appropriate action.”
Acrimony over the shooting, which left 50 dead and 53 wounded, is likely to spark new debate about whether someone interviewed by the FBI but not considered a threat ought to be able to board an airplane or purchase a gun, or should fall under continued surveillance.
US officials, particularly from the FBI, called the Orlando massacre an “act of terror” but emphasized that an investigation was just beginning and did not issue definitive statements about Mateen’s motive. His father told NBC News that he was incensed after seeing two men kiss and that his slaughter was not religiously motivated. But, reportedly, Mateen called 911 ahead of the attack and declared fealty to Islamic State.
Ron Hopper, the FBI special agent on scene in Orlando, told reporters on Sunday afternoon that the bureau had on three occasions in 2013 and 2014 interviewed Mateen. In 2013, Mateen was suspected of making “inflammatory comments” to co-workers at the security firm GS4 that employed him since 2007, and called in to talk with the FBI twice. For a time, he was placed under surveillance. Yet the investigation was closed after agents were unable to verify any suspicious ties.
The following year, the FBI interviewed Mateen concerning a connection with a Florida man who travelled to Syria and became a suicide bomber for al-Qaida’s local affiliate. But it concluded that Mateen’s ties to Moner Abu-Salha were “minimal” and did not represent a substantive link, Hopper said.
According to FBI veterans, the bureau is permitted to keep sheafs of data on people it interviews even after it discounts them as a security or public-safety risk. Formal rules, including the federal Privacy Act, bar the bureau from widely disseminating that data to partner agencies or private firms, although experts caution that recent FBI partnerships have opaque or unclear rules about shareable information.
“The implications for an individual’s privacy are profound if that type of information is shared,” said Michael German, a former FBI investigator now with New York University’s Brennan Center. “If a cloud of suspicion surrounds an individual, you can never prove you’re not a terrorist.”
Civil libertarians have expressed concern that the FBI’s “assessments”, as described in a declassified 2009 bureau document, provide the bureau with extensive data on people for whom it lacks sufficient factual predication to open an investigation, let alone to seek indictment. The document permits such assessments to include employment information, phone and email accounts, passport data, social security numbers and “any other unique identifying numbers relevant to database checks, such as alien registration number, driver’s license, etc”.
The document encourages bureau field offices to “close PIs [preliminary investigations] that, based on the Baseline Collection and intelligence developed, do not warrant the commitment of further investigative resources”. But it does not mandate the purging of data from those preliminary investigations.
A spokesman for the FBI’s Terrorist Screening Center, which maintains the bureau’s watchlists, would not say if Mateen was on a bureau watchlist or had been removed from one.
“The Terrorist Screening Center does not publicly confirm nor deny whether any individual may be included in the US Government’s Terrorist Screening Database (TSDB) or a subset list,” spokesman Dave Joly said in an email.
“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.”
Former bureau officials said that keeping even preliminary inquiries open past the point where they established substantive connections to security threats risked overtaxing law enforcement resources and missing genuine threats in the shuffle.
Experts in homegrown terrorism said that a prerequisite for finding domestic lone-wolf extremists before they commit acts of terrorism is robust trust between local communities and the government – something lacking in US Muslim communities that see themselves treated as undifferentiated threats, through FBI and police infiltration of mosques, surveillance and compelled informants.
“You can’t do these programs without some level of trust beforehand,” said Seamus Hughes, who studies homegrown extremism at George Washington University.
Southers, who will brief TSA and state department officials this week on homegrown extremism, said the FBI’s investigative rules provided sufficient flexibility to reopen investigations when additional evidence warranted it. He said he could only think of one prior case where the bureau came to close investigations on people who subsequently committed acts of terrorism: the Tsarnaev brothers, the architects of the 2013 Boston Marathon bombing.
“What this illustrates is the difficulty in trying to identify people who would do things like Mr Mateen did today,” Southers said. “There is no profile.”
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