June 16, 2016
TSG IntelBrief: Preventing the Next Orlando
• The rising threat of Islamic State-inspired attacks combined with overwhelmed law enforcement agencies and increasingly dysfunctional politics makes preventing another Orlando-style attack nearly impossible
• Though some measures to mitigate the impact of similar attacks may be achievable, larger issues such as the overwhelming availability of guns in the U.S. will remain unresolved
• Absent probable cause, the FBI cannot sustain investigations simply on the basis of suspicious behavior or inflammatory speech
• In light of the important constitutional limitations on counterterrorism investigations, policymakers should look to make reasonable compromises, where possible, to limit the lethality of future attacks.
In the aftermath of the devastating attack in Orlando on June 12, the focus of the investigation is not just to determine what happened, but on how it can be prevented from happening again. Unfortunately, several factors all but ensure that similar attacks could take place in the future. These factors include the availability of guns with high-capacity magazines, the limits to investigatory protocols, and the sheer number of potential threats law enforcement must assess and prioritize at a time when the so-called Islamic State is calling for more attacks. There will be lessons learned from Orlando, but it is uncertain if those lessons will translate into strategies that are both effective and constitutional.
The availability of semi-automatic rifles with high-capacity magazines is an undeniable factor in attacks such as Orlando or San Bernardino. It is also the most politically charged; there are limited prospects for changes that would result in a meaningful reduction in the availability of such weapons. Still, some measures that would have positive impact may be achievable even in a highly divisive political environment. Under current laws, individuals on U.S. terrorism watch lists can legally purchase firearms. Prohibiting them from doing so until they are cleared of suspicion and removed from the list may be politically achievable, though it would likely bring unwanted attention to how unwieldy and massive these lists have become. Though closing this ‘loophole’ would not have prevented the tragedy in Orlando—the shooter was no longer on any watch list—it is one possible proactive measure.
Though reducing the capacity of magazines used in semi-automatic firearms would undoubtedly face greater political hurdles, it would help reduce the total number of casualties in mass-shooting incidents by forcing the shooter to reload more frequently. In an active shooter incident, the briefest pause in gunfire can be lifesaving, allowing people to rush the shooter or flee while the attacker reloads.
In addition to the gun debate that follows any mass-shooting incident, the FBI has faced considerable questions as to whether it should have done more in light of the tips it received regarding Omar Mateen. The limits on law enforcement investigations into suspicious behavior can be incredibly frustrating in the wake of an attack carried out by a ‘known wolf’ of terror, but such limits are vital in a free and democratic society. Short of probable cause that a crime has been committed, law enforcement agencies in the United States face constitutional limitations on the actions they are allowed to take. The FBI interviewed and investigated Omar Mateen several times, but those investigations did not reveal anything that rose to the level of probable cause. The FBI has stated it is reviewing the handling of Mateen’s case to determine if any errors were made.
The FBI handles thousands of preliminary investigations each year—many involving similar characteristics as the case of Omar Mateen. Holding extremist views is grounds for an initial inquiry, but absent criminal behavior or intent, such views are not grounds for arrest. The manpower requirements involved in surveillance are staggering, and even cursory surveillance is too labor intensive to apply to every individual that comes across the FBI’s radar. If the initial investigation does not cross the necessary legal threshold, the FBI closes the case and moves on to the next in an ever growing pile. While Mateen’s previous suspicious behavior provides tragic context in hindsight, the paramount importance of protecting civil liberties and American democratic principles means that not much can change. Therefore, the most effective way to prevent future tragedies along the lines of Orlando is to overcome political barriers and work collaboratively to develop ways to limit the ability of those determined to kill to do so with such ease, while protecting the constitutional rights of law-abiding citizens.
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