Carrie Cordero, Georgetown’s Director of National Security Studies and a former Justice Department official, writes in with the following ruminations concerning lone wolf terrorist offenders:
No one really wants to talk about the lone offender.
If the violent events and subsequent reactions to those events in recent years are any indication, the law and policy communities would much prefer to mourn the dead, look for missed signs and signals, and then quickly move on to something—anything—else. Why? Because tackling the lone offender represents a very hard problem, possibly a futile one. It spans the international-domestic terrorism divide, as well as the terrorism-law enforcement divide. It involves rethinking the labels that we place on activity. Is it an act of international terrorism? (arguably Ft. Hood). Mental illness? (probably Aurora, Arizona and Virginia Tech). Domestic terrorism? (most likely the Sikh Temple in Wisconsin). Simply defies explanation or categorization? (Columbine). The results are the same; the origins, motives and causes, all different, and therefore the law enforcement and investigative methods need to be different, too.
The problem of the lone offender is not a new one to law enforcement officials. In his September 30, 2009 statement before the Senate Committee on Homeland Security and Governmental Affairs, FBI Director Mueller noted that the FBI had created a task force aimed at identifying methods to proactively identify lone offenders. Indeed, there have been too many examples in recent years of the mass casualties and terror that lone offenders can inflict. Once again, with both the recent shootings in Aurora, Colorado and Oak Creek, Wisconsin, there were signs: Wade Page, the shooter at the Sikh Temple of Wisconsin was reportedly known to be affiliated with white supremacist groups. The shooting claimed six lives. According to press reports, the psychiatrist of the Aurora shooter, James Holmes, had raised red flags about his mental condition. The Aurora massacre claimed 12 lives and wounded 58. In January 2011, with the attempted assassination of U.S. Representative Gabrielle Giffords, it appears that gunman Jared Lee Loughner was known by acquaintances not just as an oddball, but as someone who was feared by classmates for potentially storming their classroom with a gun. In 2007, Seung Hui Cho went on a rampage at Virginia Tech, killing 32 and wounding 17; the review panel appointed by Virginia’s Governor determined that there were a number of warning signs of his mental instability including while he was enrolled at the school.
The year 2009 was a particularly brutal one. That summer, Carlos Bledsoe, a.k.a. Abdulhakim Mujahid Muhammed, shot two soldiers, killing one, outside an army recruiting station in Little Rock, Arkansas. Within weeks, James W. Von Braun opened fire in the entry of the Holocaust museum in downtown Washington D.C., killing a security guard. And, several months later, Maj. Nadal Hassan launched his one-man jihad against fellow soldiers at Ft. Hood in Killeen, Texas, killing 13 and injuring 30. Bledsoe, Braun and Hasan all appear to have had ideological motivation, if not specific inspiration, for their actions.
While we might wonder whether those who crossed any of the perpetrators’ paths either thought about or actually did report suspicious behavior, the more important question is what, if anything, federal law enforcement officials could have done if they had spoken up? The uncomfortable answer is that they probably could not have done much. Take the Tucson shooting, as an example. Speculation on whether political rhetoric inspired Loughner to launch his attack against Giffords obscured the early indications that he alone committed this act, and that there were warning signs that he was someone who might do something like this. The reality is that even if acquaintances had reported him to federal law enforcement, however, officials would have had negligible ability to conduct a serious investigation, including using techniques such as electronic surveillance and physical searches, unless there were specific facts indicating that he was about to commit a crime.
Similarly, since it does not appear that there was any international terrorism link to his activities, there would be no legal justification for electronic surveillance under the foreign intelligence surveillance laws. This is noteworthy, because following the September 11, 2001 attacks, and the ineffectiveness of the federal government in fully investigating Zacarias Moussaoui, Congress amended the Foreign Intelligence Surveillance Act intending to address so called “lone wolf” terrorists who could not be tied to a particular international terrorist organization. However, this provision is only available for non-U.S. person subjects, and it still requires that there be probable cause that the target of the surveillance is engaged in international terrorism activities, not a purely domestic violent act—even if that act were reasonably characterized as domestic terrorism. Accordingly, the federal statutes do not provide for authority to obtain a court order for electronic surveillance or a physical search against a potential violent offender unless there is probable cause that a crime is about to be committed. So there’s one angle for further discussion and consideration: assessing whether there needs to be an electronic surveillance and/or physical search provision that is more useful in the domestic terrorism context when a threatening picture is emerging, but the crime is not yet clear. I am not at the point of suggesting that there is a good way to do this that would both provide a useful authority while maintaining appropriate protections for U.S. persons, but it certainly is worth thinking more about.
Perhaps there is also another path to consider on guns. There appears to be significant reporting requirements on weapons that are lawfully bought. And based on the information reported after the Aurora shooting, it seems that Holmes lawfully bought his weapons, and would not have triggered concern on the background investigation because he had no criminal record. That said, an individual purchasing three weapons, including an assault weapon, over a short period of time, might reasonably trigger concern. If there were a way to aggregate information revealing that he also purchased an unusual amount of ammunition and tactical gear, the combination of those facts would cause additional concern. So what if it were required by law that: (1) all gun purchase records must be reported to federal authorities electronically (if this is not already a requirement); (2) the data were retained by the appropriate agency in a competent, usable and modern digital format; and (3) the data is available to be sifted, sorted, data-mined—whatever we want to call it—with the purpose of identifying anomalies. Once certain transactions, or series of transactions, or purchasers are identified through this analytic process, this would trigger an assessment, which would authorize a certain degree of follow up by appropriate investigative authorities. Additional consideration should be given to whether there is a way to electronically track purchases for high volumes of ammunition and other tactical gear. Certainly a number of leads would fizzle out, but that is the nature of a lot of investigative work. And, of course, this would all be done in accordance with proper guidelines, protocols, and training. In short, there might be something we can at least try—using sophisticated analytics to make better use of data already lawfully acquired—that is better than throwing our hands up yet short of going down the gun control rat hole.