Three years before he killed 49 people at the Pulse nightclub in Orlando, Omar Mateen was under investigation for 10 months by the FBI, which suspected that he might have ties to terrorism. But agents found no evidence of a so-called nexus to any terrorist groups or planning.
It apparently wasn’t for a lack of trying. The investigation was based on a “reasonable suspicion” that he might be connected to terrorism and used surveillance of Mateen’s movements, recordings of his conversations, inspection of his communications records, and even a confidential source. But the FBI’s shadowing of the future mass-murderer was also restricted by a set of investigative rules and procedures meant to protect the privacy and civil liberties of U.S. citizens.
Now, in the wake of the worst mass-shooting in U.S. history, FBI officials are poring over the records of that 10-month investigation, to see what—if any—clues agents may have missed. And the administration is considering whether to loosen some of those rules, in order to make it easier to spot potential attackers even after they’re no longer on the government’s radar.
The timeline of the Mateen investigation, based on interviews with six current and former U.S. officials and FBI agents, shows both the significant range and limits of investigative tools at the FBI’s disposal when tracking potential terrorists, as well as the highly subjective nature of such investigations.
Mateen first came to the FBI’s attention in May 2013, after making a series of “boasts” to co-workers about his various ties to terrorist groups, a U.S. official told The Daily Beast, speaking on condition of anonymity to discuss the particulars of the case. “That triggered FBI to investigate.”
FBI Director James Comey told reporters on Tuesday that Mateen had claimed to have “family connections to al Qaeda,” and that he was also “a member of Hezbollah.” (As Comey pointed out, these seemed to be contradictory claims since al Qaeda is a Sunni terrorist organization and Hezbollah is a Shiite organization.)
It remains unclear who reported Mateen, then 26 years old and working as a private security guard at a Florida courthouse. But based on the reports, the FBI’s Miami field office opened a “preliminary investigation,” Comey said.
A preliminary investigation has a specific meaning and attendant set of rules under guidelines for domestic FBI operations. As compared to a “full investigation,” agents were restricted in the kinds of procedures and methods they could use.
Notably, in preliminary investigations the FBI cannot employ electronic surveillance under the Foreign Intelligence Surveillance Act, which allows the government to obtain warrants for intelligence-gathering that can be easier to get than a traditional criminal wiretap order. Physical searches, including opening a suspect’s mail, are also prohibited.
That’s not to say that the FBI has no tools at its disposal—there are at least 10 other “authorized methods”—or that intelligence-surveillance or a physical search would have yielded significant information tying Mateen to terrorist groups. Indeed, Comey said that the FBI introduced a confidential source to Mateen, recorded conversations with him, followed him, reviewed “transactional records” from his communications, and searched “all government holdings for any possible connections…”
But if Mateen had been in communication with foreign terrorist groups, it’s possible that investigators might have missed that fact, current and former officials acknowledged.
And yet the FBI clearly found information that prompted some concern. A second U.S. official, likewise speaking on condition of anonymity to discuss the case, told The Daily Beast that Mateen’s name was placed in two government databases: the Terrorist Identities Datamart Environment (TIDE), a classified repository that is a kind of “first stop” for the names of suspected terrorists or their associates, as well as the Terrorist Screening Database (TSDB), a more refined database that is also the main “watchlist” used by the FBI.
Exactly when the FBI asked for Mateen’s name to be placed in the two databases is unclear. But getting a name into TIDE is a “pretty low bar” compared to a name being placed in the TSDB, the official said. In that case, the FBI had to meet a higher standard and articulate a “reasonable suspicion” that someone might be planning terrorist activity or have ties to terrorist organizations. It can’t be done solely on a hunch.
“Individuals who merely ‘may be’ members, associates or affiliates to a terrorist organization may not be accepted into the TSDB, unless the reasonable suspicion standard is met and particularized derogatory information accompanies the nomination,” according to the government’s “watchlisting guidance,” a copy of which was published by The Intercept.
The guidance describes examples of derogatory information, but it purposely avoids trying to list every potential category.
“Watchlisting is not an exact science,” the guidance states. “There are inherent limitations in any primarily name based system and analytic judgments may differ regarding whether subjective criteria have been met.”
Officials still haven’t said whether it was solely Mateen’s boasts about ties to rival terrorist groups or some other piece of information that got him put on the list. But the mere fact that he was in both databases suggests that the agents investigating him, at least initially, thought there might be something to his claims.
Listing Mateen was not a trivial exercise. There are stricter rules for putting U.S. civilians, as Mateen was, and permanent residents in either database than there are for foreigners.
“The vast majority of records in TIDE are for known or suspected international terrorists,” according to the watchlisting guidance. “Only a small percentage of terrorist records in TIDE concern U.S. persons.”
Furthermore, “Special handling is warranted for U.S. persons,” the guidance states, when names are suggested for the TSDB. “Nominations of U.S. persons shall be made based on sources of information from sources of known reliability or where there exists additional corroboration or context supporting reasonable suspicion.”
There were other restrictions on the FBI’s work. The bureau cannot continue a preliminary investigation for more than six months without getting special approval from a special agent in charge. Mateen’s investigation lasted for 10 months, which suggests that agents believed there was information worth pursuing, or that they needed more time to track down leads.
Now, agents and FBI officials are question if they could have done anything differently after Mateen first came to the FBI’s attention. “So far, the honest answer is: I don’t think so,” Comey said. “I don’t see anything in reviewing our work that our agents should have done differently, but we’ll look at in an open and honest way, and be transparent about it. Our work is very challenging. We are looking for needles in a nationwide haystack, but we are also called up to figure out which pieces of hay might someday become needles.”
One gap that has already emerged between what the rules allow and what information might help investigators concerns Mateen’s purchase of a handgun and a rifle used in his deadly rampage. The store where he bought the gun was required by federal law to run Mateen’s name against an FBI system that checks that main watchlist, the TSDB.
But Mateen wasn’t on it at the time of the purchase last week. In 2014, having found no nexus to terrorism, the government removed his name from both of the terrorism databases, the second U.S. official said.
Deputy Attorney General Sally Yates told reporters on Monday that the Obama administration would give a “thoughtful look” at new rules for notifying the FBI that someone who was once on the watchlist is buying a gun, even if he’s no longer on the list.
“Certainly in retrospect in this case we would have liked to have known about it,” Yates said of Mateen’s weapons purchases, which occurred over a three-day period, adding that she was unaware if there was any legal obstacle to changing the policy.
Rep. Adam Schiff, the top Democrat on the House intelligence committee, also said he wants to explore a system that would alert authorities when someone previously on a watchlist tries to buy a gun.
FBI agents eventually interviewed Mateen twice. But he seemed to have a credible explanation for why he’d made the claims about his ties to terrorists—which the FBI, in any event, was unable to corroborate.
“He admitted making the statements that his co-workers reported, but explained that he did it in anger because he thought his co-workers were discriminating against him and teasing him because he was Muslim,” Comey said.
Those tasked with finding potential terrorists and stopping future attacks expressed empathy with the FBI agents who once tracked Mateen and decided to stop investigating him.
“Remember you are dealing with an American. So you are dealing with a lot with a lot of oversight,” Peter J. Ahearn Sr., a retired senior FBI agent who oversaw the investigation of the so-called Lackawanna Six, in which six Yemeni-American friends were convicted in 2003 of providing material support to al Qaeda, told the Daily Beast. “How long are you going to go on investigating someone? You can’t leave everything up and running until something happens because that could be a violation of an American citizen rights.”
With no regular contact with suspected terrorists, Mateen was “a good definition of a lone wolf. That is the most dangerous thing. You can prevent things when there is communication,” Ahearn said.
A third U.S. official told The Daily Beast there often are not enough personnel to monitor every suspect for long period of times, and the decision to end an investigation can be subjective. How many times must a seemingly otherwise law-abiding suspected terrorist interact with someone in Syria or sympathetic imam at a radical American mosque for an investigation to remain open?
With limited resources and subjective criteria for monitoring U.S. citizens, the result is often that agents attempt to triage threats. In doing so, many live in a state of constant anxiety about people who once raised a red flag but yet have committed no clear crime.
“The things that scared me more than anything was what I didn’t know. You always wondered,” Ahearn said.
