Pantybomber Abdulmutallab didn't meet FBI's "reasonable suspicion" test
Umar Farouk Abdulmutallab's father dropped a dime on him. The NSA picked up communications chatter about a Nigerian attacker. The UK had refused him a visa and the British intelligence service, MI5, had some dope on him. Nonetheless, the pantybomber walzed onto a Detroit-bound Delta flight using his own name. Why didn't all this info get him onto the no-fly list or at least the larger list of people to be subjected to added scrutiny? The President wants to know and has ordered a thorough review. The media are alive with theories about which agency failed to "connect the dots." Right and left are furiously spinning to somehow blame each other's favored politicians.
But the answer appears to be really simple: following a major finding of the 9/11 Commission, the FBI's Terrorist Screening Center "maintains the U.S. government’s consolidated Terrorist Watchlist—a single database of identifying information about those known or reasonably suspected of being involved in terrorist activity." But before putting anyone on any of the subsets of that watch list, the FBI insists on meeting the same "reasonable suspicion" standard of evidence required for a law enforcement officer to search your house. As L. Gordon Crovitz wrote in the Wall Street Journal:
Timothy Healy, the head of the FBI's Terrorist Screening Center, explained the unit's "reasonable suspicion" standard like this:
"Reasonable suspicion requires 'articulable' facts which, taken together with rational inferences, reasonably warrant a determination that an individual is known or suspected to be or has been engaged in conduct constituting, in preparation for, in aid of, or related to, terrorism and terrorist activities, and is based on the totality of the circumstances. Mere guesses or inarticulate 'hunches' are not enough to constitute reasonable suspicion."
If this sounds like legalistic language, it is. Indeed, a quick Web search was a reminder that this language is adapted from Terry v. Ohio, a landmark Supreme Court case in 1968 that determined when Fourth Amendment protection against unreasonable searches allows the police to frisk civilians or conduct traffic stops. In other words, foreign terrorists have somehow now been granted Fourth Amendment reasonableness rights that courts intended to protect Americans being searched by the local police. Thus was Abdulmutallab allowed on the airplane with his explosives.
The difference between law-enforcement procedures and preventing terrorism could not be clearer. If a well-respected banker takes the initiative to come to a U.S. embassy in Nigeria to report that he thinks his son is a terrorist, we expect intelligence officers to make "hunches," such as that this person should have his visa reviewed and be searched before getting on a plane. Information is our defense against terrorism, but evidence of terror plots is often incomplete, which is why intelligence requires combining facts with hunches.
The result of prohibiting hunches was that Abdulmutallab was waved through. Information about suspected terrorists flows into a central Terrorist Screening Database, which is then analyzed by the Terrorist Screening Center, where FBI agents apply the "reasonable suspicion" standard to assign people to various watch lists including "selectee" lists and the "no-fly" list. It's at this point where an approach based on domestic law enforcement trump prevention, undermining the use of information.
Of course, it's also true that the others in the intelligence community might have connected the dots. And it's beyond doubt that smarter standards for screening passengers at the gates would have nailed Abdulmutallab. But the big unanswered question remains: why is the FBI using a law enforcement standard instead of an intelligence standard to "watch" possible terrorists?
In fairness to the FBI, it may feel it has to use a rigorous standard because of years of complaints and media stories like this.
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