After Orlando, can the government protect us?

When it comes to homegrown terrorism, true safety is illusory.

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Early on Sunday morning, 29-year-old Omar Mateen shot his way into a gay nightclub in Orlando, Florida, ultimately gunning down 49 people and injuring 53 others in the deadliest terrorist attack on American soil since the September 11th hijackings.

In the aftermath of this despicable act of violence, federal and state law enforcement organizations began the herculean task of piecing together the shooter’s past and his motives. But it was soon revealed that Mr. Mateen was no stranger to this intense scrutiny.

In May 2013, the Federal Bureau of Investigation (FBI) opened an investigation into the shooter after he boasted about his ties to terrorist organizations in the company of co-workers. After a ten-month inquiry, during which Mr. Mateen was placed on two separate terrorist watchlists, FBI investigators closed the case, only to examine him briefly again when an acquaintance of his joined a terrorist organization.

Pulse Shooting Orlando

In the aftermath of the shooting, Orlando police maintain a perimeter around the Pulse nightclub as family members look on. (Phelan M. Ebenhack/AP)

Mr. Mateen also raised suspicion among his loved ones and acquaintances. His ex-wife, who divorced him after two years of marriage, recounted his hot temper and violent behavior to the Washington Post. “He would just come home and start beating me up because the laundry wasn’t finished,” she recalled. “He was not a stable person.” A regular attendee of the mosque which Mr. Mateen frequented described him as an “aggressive person.”

But sadly, it is only in the aftermath of the shooter’s depraved act that these signs, big and small, have become clear. For the FBI, which is charged with sifting through tens of thousands of counterterrorism tips and tracking thousands of potential terrorists, limits on resources and personnel make it difficult to justify the long-term surveillance of people like Mr. Mateen, who was law-abiding until he committed his grievous act of violence.

Constitutional restrictions also present a challenge. Due to the Fourth Amendment’s restrictions upon “unreasonable searches and seizures,” the FBI is unable to surveil the electronic or physical communications of people under preliminary investigation. A full investigation, which allows the FBI to employ more extensive surveillance powers, may only be opened when “there is an ‘articulable factual basis’ that reasonably indicates” that “[a]n activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur.”

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The criteria for opening a full investigation, as per the FBI’s Domestic Investigations and Operations Guide.

But for many people whom the FBI watches, this “articulable factual basis” never presents itself. These people are just like Mr. Mateen—reported by co-workers for comments which, though discomfiting and disturbing, do not reveal any underlying criminal behavior when investigated. Barring a dramatic reduction of the due process rights of American citizens, future homegrown terrorists—even those who find themselves under preliminary investigation—may defeat the system designed to catch them by staying on the right side of the law until they choose to strike.

The Islamic State (ISIS) is unlike any enemy which the United States has battled. The ubiquity of social media has enabled the organization’s poisonous and seductive rhetoric to reach millions of people across the world and to turn American citizens against their countrymen, leaving federal and state law enforcement agencies, bound by the Constitution to respect our civil liberties, in a race against time to identify radicals before disaster strikes.

But before we cry out for greater police powers in the aftermath of the terrible tragedy which unfolded on Sunday, we must recall that our liberty comes at a cost which we must be willing to bear. To entrust to the government the ability to search your mail and your text messages, even when you are under no criminal investigation, or the power to bar you from exercising your fundamental constitutional rights without due process, would degrade our most foundational liberties beyond repair. What good is a right to due process if the government may ignore it? If law enforcement may confiscate a person’s firearms on the basis of any “‘allegation or information’ indicative of possible criminal activity or threats to the national security,” what ensures that the government may not restrict a person’s speech or his right to a fair trial on the same basis?

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Though well-intentioned, Senator Chris Murphy (D-Conn.), who has led the minority party’s push for more restrictions on gun rights in the aftermath of the Orlando shooting, does not realize the dramatic constitutional implications of removing due process rights for American gun owners in the name of greater security. (Andrew Harnik/AP)

We must come to terms with a world ridden with imperfections and recognize that there is no absolute safety to be found. There will always be evil in the world, and no amount of government or law will extinguish the darkness which takes refuge among us.

Sometimes, evil wins the day. When it does, we must mourn, grieve, and bury our dead. But when the next day comes, we must rise in defense of the liberties which enable our good to shine to the world and rescue the weak from evil’s embrace. We can never be safe, but we can always be free.

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