Due Process Might Let Some Bad People Go Free, Use It Anyway

One aspect of the Orlando Shooting that has been widely reported is the fact that the FBI interviewed shooter multiple times and found insufficient evidence to prove criminality. Indeed, we noted this in our own coverage, and it is a very important fact.

However, it’s a fact that’s easy to be misused. On the one hand, it shows the apparent futility of mass surveillance–this guy was flagged for additional investigation and nothing got through. Given that successful mass surveillance would likely look a lot like this, with a future terror suspect being well before the actual attack, it should make the argument for additional mass surveillance or policing powers thoroughly absurd. Here, existing tools worked in the sense of identifying a potential threat. But because predicting a future terrorist or terror attack is very difficult, it did not actually prevent the atrocity in this case.

The problem is that this argument can also be spun in the other way. Here, the focus is not on the apparent futility of counterterror efforts, but on the question of why exactly the FBI let this man go? There are several interesting possible explanations for this, in addition to the obvious one that he wasn’t a credible threat and had done nothing criminal. There’s also the suggestion that the FBI’s resources may have been distracted by some de facto terrorist entrapment jobs elsewhere in Florida, which have very little to do with keeping American safe. It has also been suggested that the FBI’s policy of pursuing every lead prevents them from focusing resources on the real threats that may unfold over a longer period. And of course, there’s the sentiment expressed by the reliably awful Senator Lindsey Graham, “The FBI closed this file because the Obama administration treats radical Islamic threats as common crimes.” Because, of course, everyone knows that responsible people Call It Radical Islam (TM) and would use the military to bomb people in countries on the other side of the world to solve it once and for all. Just like we solved terrorism after 9/11 by bombing Afghanistan and … wait, that didn’t happen.

Morbid joking aside, the Senator’s camp has emerged as a dominant one. Obviously, the argument goes, people like Mateen shouldn’t be released into society because look what happened. Thus, we should get rid of whatever restrictions prevented the FBI from holding him.

It’s not hard to follow the train of thoughts that gets you to the conclusion above. The issue is that those restrictions amount to basic due process, and they’re kind of the foundation of the criminal justice system, at least in theory. The assumption here is that expanding police powers in this way, by effectively allowing the government to hold people on mere suspicion of wrongdoing rather than any actual proof, the government would be able to prevent these attacks. This is unlikely to be true, but in a time of intense anxiety and fear after a very public attack, many people are desperate for anything to help.

All of which makes Glenn Greenwald’s recent article in The Washington Post a very timely and welcome defense of due process. The whole piece is exceptional and I’d encourage you to read it in full if you’re remotely on the fence on this subject. This excerpt offers a look into his conclusion:

…based on what we know, the FBI acted properly [in this case]. Agents have the power they need, and they were right to close the case on Mateen. Just because someone successfully carried out a violent mass attack does not prove that police powers were inadequate or that existing powers were misapplied. No minimally free society can prevent all violence. In the United States, we do not hold suspects for crimes they have not committed.

In some ways, it’s an old argument–there’s a trade-off between liberty and security, and in the wake of terror attack, people only look at one side of the coin. But as Greenwald himself notes, this argument needs to be rehashed in the wake of every terror attack. Because there will also be politicians willing to promise the impossible by sacrificing rights that ought to be off the table.

And with that, here’s the link to Greenwald’s article:

The FBI was right not to arrest Omar Mateen before the shooting

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