Timothy Pate

It’s now been widely reported that Omar Mateen, the gunman who massacred 49 people at an LGBT nightclub in Orlando last Sunday, had been investigated twice by the F.B.I. How Mateen somehow slipped through the cracks has aroused concern among many and conspiracy theories among a few.

The real explanations are, of course, more nuanced than what is swirling around the sewage of the internet’s comments sections. Matt Apuzzo and Eric Lichtblau report that the sheer volume of terrorism tips is holding up the Bureau:

Thousands of investigations are opened and closed. Right now, law enforcement officials say, the F.B.I. is investigating 1,000 potential “homegrown violent extremists,” the majority of whom are most likely tied to or inspired by the Islamic State. Fifty to 100 are considered the highest priority.

The flood of leads is so relentless that, years ago, counterterrorism agents hung an 18-inch section of fire hose outside their office suite in Northern Virginia as a symbol of their mission.

Trevor Aaronson comes to a similar conclusion:

Already, in the wake of the Orlando shooting, there are calls to provide the FBI with more resources and greater investigative powers. But neither is a problem for the FBI, in German’s view.

“I would simply suggest we take time to examine how the authorities and resources have already been used by the FBI,” he said. “Checking somebody’s work is the only way to make sure they’re doing it correctly.”

He also questioned the effectiveness of the bureau’s pursue-every-lead counterterrorism policy.

“There needs to be a reasonable threshold before they initiate investigations,” German said. “Right now, there really isn’t one.”

David Gomez points to a lack of probable cause, an explanation that is likely to anger Americans who point out that Mateen had expressed interest in terrorist organizations. Gomez correctly notes that simply expressing those beliefs is not a crime.

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. Zacarias Moussaoui was reported as wanting to learn to fly a jumbo jet, but not wanting to learn to take off or land, alarming his instructors. These suspicions alone, however, were not enough to enable the FBI to obtain a Foreign Intelligence Surveillance Court search warrant of his computer, which might have turned up evidence of the plot. Because of the Moussaoui case, the Syed Farook and Tashfeen Malik case in San Bernardino, and now the Mateen case, 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.

However, Gomez goes on to argue, in essence, for the eroding of Americans’ privacy in order to “[save] human life.” Zeynep Tufekci thoroughly disposes of that argument.

Intelligence agencies bear the blame for not predicting terrorist attacks, and they tend to defensively call for more surveillance and less encryption after each attack. But the real problems that need to be discussed involve far broader issues, like a destabilized Middle East; protracted wars; the huge outflow of desperate refugees; colonial pasts; homegrown religious fanatics; and the failures of assimilation.

We should acknowledge that it’s very hard to stop a few people who want to murder civilians in public places and are willing to die along the way. The challenge is not how to collect more data from everyone, but how to identify and track the few truly dangerous people.

In the meantime, law enforcement agencies should quit trying to weaken encryption. They can help harden all computer networks against all types of spying (including their own) or let them stay weak to make all spying easier (including by hackers and foreign powers). Just this year, we learned that sensitive files containing security clearance information for more than 20 million Americans, including many fingerprints, had been stolen by hackers probably working for a foreign government. Encryption cannot be wished away, and weakening it will hurt us all.