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

The guidelines underwhichFBI agents can investigate potential terrorismsuspects andplace them on awatchlistare "absolutely"too restrictive, aformer top official with the agency's counterterrorism unit says.

Nevertheless, in the case of the Orlandogunman,Omar Mateen, who was investigated twice by the FBI, less-restrictive ruleswould 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 spentmore than 30years with the agency in different roles, including as assistant director for the FBI's counterterrorismdivision 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 isbeing investigated, McJunkin said.

There is a bar here, there is a standard youhave to meet beyond just yourpoliticalor religious views,even if they're hateful.- Tim Edgar, formerfirst 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 asthe Terrorist Screening Database,an individual has to be"nominated" by a U.S. government securityagency 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 youhave to meet beyond just yourpoliticalor religious views even if they're hateful," said Tim Edgar,who served in the Obama administration asthe first deputy for civil liberties for the director of national intelligence.

"You have to be suspected ofbeinginvolved 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 ifno evidence has been found to substantiate any terror links.

Remarks tocolleagues prompted investigation

The FBI began investigatingMateen inMay 2013.That 10-monthinvestigation was prompted by concerns fromhis co-workersover remarks he made in support ofal-Qaedaand Hezbollah, both of which are designated asterrorist organizations in the U.S.

FBI director JamesComeysaid investigators introduced Mateen to confidential sources,followed him and reviewed some of his communications but thatMateenclaimed 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 watchlist 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 timeover 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 andMateenwas removed from the Terrorist Screening Database.

Hampered byquality of information

When investigating potential terrorist suspects, McJunkin said, theFBI must follow the broader guidelines oninvestigative procedures set by the attorney general, whichgovern 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] aretoo restrictive? Absolutely, I do.- Jim McJunkin, former FBI assistant director forcounterterrorism

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

"Do I believe the attorney general guidelines and the [domestic intelligence operations guide] aretoo 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 evidencebut 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.

McJunkinsaid the guidelines don't allow agents to"go far enough or wide enough" to determine whether there might beadditional information of concern about anindividual on their radar.

FBI in tight spot

Edgarsaid the FBI isin a tight spot when dealing with a U.S. citizenwho has what appearsto be distasteful or violent views but hasn't committed any crime or been involvedin a specific plot.

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"They have to both stopterrorismand arrest people that arecommittingthose types ofcrimesat an early enoughstage to stop it, but they alsohaveto deal with a free society in whichpeopleon thesubculturesofvarious groupsmay have veryhateful ideas but haven't actuallycommittedany crime," he said. "And mostof those people never will."

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

It's possible that the FBI could have tried to bemore aggressive with Mateenandattempted some kind of sting operation to lure him into a fake terrorist plot, Edgarsaid. Butthose operations are controversial, he said,as they risk entrapping the individual ina crime henever fully intended to commit.

"I do think there are civillibertyissues with these lists, and we should address them so thatpeoplewho are wrongly put ontheselistscan clear their name," he said."But as you can see from this case, even people who should really be on this list aregoingto getoff it if the FBI closes an investigation."