Orlando shooting: FBI could not have 'done more' to keep Omar Mateen on watch list: ex-agent

The guidelines under which FBI agents can investigate potential terrorism suspects and place them on a watch list are "absolutely" too restrictive, a former top official with the agency's counterterrorism unit says.

Nevertheless, in the case of the Orlando gunman, Omar Mateen, who was investigated twice by the FBI, less-restrictive rules would not have allowed the agency to keep the 29-year-old man in its terror database, Jim McJunkin said.

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"When they close the investigation, he comes off the watch list," said McJunkin, who spent more than 30 years with the agency in different roles, including as assistant director for the FBI's counterterrorism division in 2008.

"Now, absent the proverbial crystal ball, or somebody else calling in and saying this guy is up to no good, I don't think they were in a position to have done more."

On watch list only when investigated

A U.S. citizen can remain on the watch list only as long as that individual is being investigated, McJunkin said.

There is a bar here, there is a standard you have to meet beyond just your political or religious views, even if they're hateful.- Tim Edgar, former first deputy for civil liberties for the director of national intelligence

"At some point in time, they had to make a decision — no evidence, no information to support the fact that he's a terrorist, he says he's not a terrorist. Do they continue to spend limited resources pursuing him using a limited investigative scope?" 

To be placed on the list, known as the Terrorist Screening Database, an individual has to be "nominated" by a U.S. government security agency that has a "reasonable suspicion that the person is a known or suspected terrorist," according to the FBI website. 

"There is a bar here, there is a standard you have to meet beyond just your political or religious views even if they're hateful," said Tim Edgar, who served in the Obama administration as the first deputy for civil liberties for the director of national intelligence. 

"You have to be suspected of being involved with terrorist activity."

Foreign nationals may remain on the list indefinitely, but U.S. citizens are supposed to be removed once an investigation has been completed if no evidence has been found to substantiate any terror links.

Remarks to colleagues prompted investigation

The FBI began investigating Mateen in May 2013. That 10-month investigation was prompted by concerns from his co-workers over remarks he made in support of al-Qaeda and Hezbollah, both of which are designated as terrorist organizations in the U.S.

FBI director James Comey said investigators introduced Mateen to confidential sources, followed him and reviewed some of his communications but that Mateen claimed he made the remarks in anger because co-workers were teasing him and discriminating against him because he was Muslim.

"At the end of the day, what do you have? It's likely nothing substantive was developed that pointed to this guy as an ISIS- or al-Qaeda-type terrorist," McJunkin said. "So, what are you going to do then? Should you hang him up forever on some watch list based on unsubstantiated information from a co-worker? Maybe open up a full investigation and keep this guy on the hook forever? The answer is no.

"The constitution doesn't permit such abusive behaviour on the part of government, and frankly, resources are too tight at the FBI."

The FBI investigated Mateen a second time over his connection to Moner Mohammad Abu-Salha, the first U.S. citizen to be involved in a suicide bombing in Syria, but found no ties of any consequence, Comey said. The investigation was brought to a close and Mateen was removed from the Terrorist Screening Database.

Hampered by quality of information

When investigating potential terrorist suspects, McJunkin said, the FBI must follow the broader guidelines on investigative procedures set by the attorney general, which govern how intrusive agents can be during the course of an investigation.

"It's all based upon the level and quality of information they have that suggests somebody is a bad person," said McJunkin.

Do I believe the attorney general guidelines and the [domestic intelligence operations guide] are too restrictive? Absolutely, I do.- Jim McJunkin, former FBI assistant director for counterterrorism 

In the case of the co-worker complaint, for example, there was probably very little the FBI could do, except ask Mateen questions about the statements he made, McJunkin said.

"Do I believe the attorney general guidelines and the [domestic intelligence operations guide] are too restrictive? Absolutely, I do," McJunkin said.

"In my opinion, they don't permit the FBI to act fully on intelligence that might not develop immediately into evidence but remains of concern. They can act on intelligence, but they must act on intelligence in measured ways, so, by extension, they are limited from conducting a truly thorough investigation.

McJunkin said the guidelines don't allow agents to "go far enough or wide enough" to determine whether there might be additional information of concern about an individual on their radar.

FBI in tight spot

Edgar said the FBI is in a tight spot when dealing with a U.S. citizen who has what appears to be distasteful or violent views but hasn't committed any crime or been involved in a specific plot.

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"They have to both stop terrorism and arrest people that are committing those types of crimes at an early enough stage to stop it, but they also have to deal with a free society in which people on the subcultures of various groups may have very hateful ideas but haven't actually committed any crime," he said. "And most of those people never will."

Although Mateen was not in the FBI's database when he reportedly purchased his weapons, one loophole that could be closed is to prohibit those who are on the watch list from acquiring guns, Edgar said. That, however, raises constitutional issues, as those under investigation haven't been found guilty of any crime.

It's possible that the FBI could have tried to be more aggressive with Mateen and attempted some kind of sting operation to lure him into a fake terrorist plot, Edgar said. But those operations are controversial, he said, as they risk entrapping the individual in a crime he never fully intended to commit. 

"I do think there are civil liberty issues with these lists, and we should address them so that people who are wrongly put on these lists can clear their name," he said. "But as you can see from this case, even people who should really be on this list are going to get off it if the FBI closes an investigation."