Is the FBI Afraid of Being Seen As Anti-Muslim?

June 16, 2016

Morning Jolt reader Nick writes in with a fair question:

I get the Jolt in the mornings, listen to the Three Martini Lunch after work, and get caught up on pop culture with you and Mickey every week. Most of the time I agree with what you're saying, and on the rare occasion I don't it's generally on something where reasonable people can disagree. All that said, you made two arguments today that really contradict each other.

First, you've pointed out several times this week that you think the FBI and other a security agencies really dropped the ball on the Orlando shooter (as well as other high profile terrorist incidents of late). Yes, we know they missed opportunities to stop these atrocities before they happened. But what we don't know is how many potential threats they did stop. I'm sure you don't expect perfection, but how far do you think they should go to prevent attacks? Omar Mateen was (sadly) an American citizen. Should the FBI have ignored his rights just because he was an a------ with an unhealthy interest in Islamic terrorism? From everything I've read they had no hard evidence that he was planning this attack. I don't disagree that there have been failures here and in other incidents, but I'm of the opinion that some failures are inevitable unless we give up all liberty and live in a police state. (Cue the old quote about giving up freedom for security and all that.)

Now the second position you took (in today's crazy martini) I agree with completely. Denying people's Second and Fourth Amendment rights because they've ended up on the no fly list or a watch list is wrong (and Donald Trump is no conservative). But what I don't see is how you reconcile that position about the watch lists with the one that the FBI should have "done more", whatever more is, to stop Mateen because he was a suspected potential terrorist. Either you keep all your rights as a citizen when you're on one of these watch lists, or you don't and the government can do whatever they feel is needed to stop you from being a terrorist. There's not much middle ground here in the arguments you've made.

A fair question, but I don't think my views are that contradictory.

Part of the problem is that the compiling, maintenance and alteration of the terror watch list is done in secret, so we on the outside don't have a clear picture of how all of these systems, rules, guidelines and protocols work.

On the terror watch list, we've never had a good sense of what, exactly, gets you on that list -- or, for that matter, the much-larger no-fly list. Is it that your phone number pops up in a known bad guy's phone or your e-mail in his e-mail address book? Can someone just call up and make an anonymous tip that you've expressed extremist views? Suspicious purchases? Travel patterns? There are apparently 10,000 or so Americans on the terror watch list. Are they 9,999 genuine bad guys who should never be allowed near a gun, or 1,000 genuine bad guys and 9,000 folks who just happened to be in the wrong place at the wrong time, and/or bad data, or something in between? (When Stephen Hayes, Ted Kennedy and toddlers end up on the no-fly/extra scrutiny list, we've got some reasons to be wary.) The government obviously wants to keep the specific criteria for the list secret, so aspiring terrorists won't learn what actions to avoid, but this leaves us having to take them at their word. Anyone who is on the list erroneously is in for a Kafkaesque nightmare of proving their innocence to a system with no appeal or recourse.

Donald Trump puts this argument so crudely he usually mangles it, but it's hard not to wonder whether our government agencies operate with some amount of fear of CAIR protests, lawsuits, and/or bad press about Muslim-profiling. As mentioned earlier this week, a lot of American jihadists pop up on the government's radar for a while, get interviewed, and are deemed not a threat. We're left wondering whether the FBI walks away thinking, "Yeah, no way that guy's a threat" or "Eh, that guy's probably not a threat, but either way, we don't have the resources to keep watching him."

Former NSA analyst John Schindler, writing in the New York Observer:

There's the rub. In 21st-century America, we have created a perverse incentive structure where fear of accusations of Islamophobia and/or racism takes priority over anything else, even preventing violence. While nobody could have foreseen the exact attack that Omar Mateen perpetrated, it's abundantly clear that he was on track to do something awful, including murder. Yet nothing was done, even though warnings were abundant. Simply put, any American today who is accused of Islamophobia faces a ruined life with loss of employment and social stigma. Whereas the cost of not preventing mass murder is merely hurt feelings and regret.

In such an era, it's difficult to find too much fault with the FBI. Per the cliché, they were only following orders. All the same, it bears asking why the Bureau went for the direct approach, bringing Mateen in for questioning, instead of watching him from a distance. Any time you bring a possible suspect in for interrogation, you're showing your hand—which isn't always wise. Particularly given Mateen's known ties to a notorious Orlando jailbird-turned-radical-imam, there were investigative avenues of approach here that were apparently not taken, with fateful consequences.

However, the FBI was following the lead of its political masters. It's hardly a big secret that President Obama from the moment he arrived at the White House put the kibosh on any discussion of radical Islam as a security problem, even in classified channels. In 2009, the administration banned politically loaded words like "jihad" even in classified Intelligence Community assessments discussing terrorism —a message that was received loud and clear in the counterterrorism community. Missing the next 9/11 could be survived, career-wise, while accusations of Islamophobia would not be with Barack Obama in the White House.

Now, after the fact, we're hearing that the Orlando shooter's foreign travel looks suspicious, that his co-worker claims he reported him to his bosses and that he did nothing, and now this morning, we learn this:

Sources familiar with a classified briefing that Comey and National Counterterrorism Center Director Nicholas Rasmussen gave to House members this week said Mateen had also told his co-workers that he wanted to become a "martyr" in an operation. If the FBI "raided his house and killed his wife and child, that would free him to martyr himself in an operation," Mateen had told co-workers, according to two sources who attended the briefing.

That and other comments Mateen made — including that he had obtained a car from another "martyr" (an apparent reference to American suicide bomber Moner Mohammad Abusalha ) so alarmed co-workers in 2013 that they reported it to the local sheriff's office, which in turned alerted the FBI. The bureau then launched a "preliminary investigation" into Mateen that lasted 10 months — six months longer than the standard preliminary probe — as FBI agents struggled to figure out what to make of Mateen.

Just how much of "an a------ with an unhealthy interest in Islamic terrorism" can you be before the government deems you a threat to others? For that matter, what's a "healthy" interest in Islamic terrorism? "Oh, I don't play the game, I'm just a fan of the Raqaa jihadists!" Maybe it's easy for me to say as a non-Muslim, but after an event like this, monitoring this guy's mosque doesn't sound invasive at all. I criticized the NSA for vacuuming up all metadata from all Americans with no limits or criteria, but if someone said, "Can we look at the phone, computer records, and metadata for a guy who told his coworkers he wanted to become a martyr?" I'd say, "Hell, yes."

These perspectives aren't that contradictory. I think the "bar gun sales to terror watch list suspects" is a placebo, meant to establish the precedent that the government can restrict your Second Amendment rights based on secret evidence without judicial review. (It appears Mateen was no longer on the terror watch list, so he would have been free to make his purchases.)

The FBI is flooded with too many cases, and maybe looking over its shoulder, worried about being seen as anti-Muslim. If so, some brilliant investigators are missing a key fact: the bureau is likely to be accused of being anti-Muslim no matter what it does.

There Is No New Trump

Over on the home page, I try, once again, to get perpetually deluded congressional Republicans to recognize that Donald Trump will never "pivot." He is who we thought he was. To paraphrase former Arizona Cardinals coach Dennis Green, "He is who we thought he was. If you want to crown him, then crown him. But he is who we thought he was! And we let him off the hook!"

CIA: 'ISIL Has a Large Cadre of Western Fighters'

Going to be a long, hot summer:

CIA Director John Brennan will tell Congress on Thursday that Islamic State (ISIS) militants are training and attempting to deploy operatives for further attacks on the West and will rely more on guerrilla-style tactics to compensate for their territorial losses.

In remarks prepared for the Senate Intelligence Committee, Brennan says ISIS has been working to build an apparatus to direct and inspire attacks against its foreign enemies, as in the recent attacks in Paris and Brussels — ones the CIA believes were directed by ISIS leaders.

"ISIL has a large cadre of Western fighters who could potentially serve as operatives for attacks in the West," Brennan said, using another acronym for the group. He said ISIS probably is working to smuggle them into countries, perhaps among refugee flows or through legitimate means of travel.

ADDENDA: This morning, CBS News reports the shocking news that their producer, a U.S. citizen with valid identification, no criminal record, no restraining orders and no record of being found legally incompetent or mentally incapacitated, who passes the instant-check system, can purchase a gun in just 38 minutes!

What, was there a long line at the store?