– And what must be done to truly reform the agency
HARRY G. HUTCHISON, ACLJ
On Feb. 14, 2018, Nikolas Cruz entered Marjory Stoneman Douglas High School in Parkland, FL and murdered 17 students and teachers. Before that horrific day, the FBI had at least twice received tips about Cruz and his plans to attack a school. The first tip was 5 months ago, and the most recent tip was on Jan. 5, 2018. In both cases, the FBI failed to follow its own processes.
Tragically, this is not the first time the FBI has failed to act on a credible tip to prevent an attack despite its reliance on its tip process.
Although the FBI has a specific centralized process for tip intake and analysis, this mishap highlighted the risks of moving tip collection from the FBI’s individual offices around the country to a single call center. According to the FBI’s own website, all public leads, either by phone or email, are made through the Public Access Line (PAL), which was established as a national clearinghouse for tips in 2012. PAL is based in a central office in West Virginia and staffed with more than 150 FBI employees and operates 24 hours a day. According to their records, they receive over one million tips a year and “about 100 ‘actionable’ tips every day”.
The FBI received two tips warning them about Mr. Cruz.
The first indicated that Mr. Cruz wanted to be a professional school shooter. After the September 2017 report by a concerned citizen, Ben Bennight, about a comment from a “nikolas cruz,” the next morning, agents from the FBI field office in Mississippi contacted him and came to his house to conduct an in-person interview. He did not hear from the FBI again, until the tragic mass shooting in Parkland, FL, five months later.
When asked about this tip, FBI Special Agent in Charge of the Miami Division, Robert Lasky confirmed that his office received a tip from the Mississippi filed office. He said they “conducted database reviews” but were “unable to further identify the person who actually made the comment.”
In handling this tip, the FBI may have acted within 24 hours as required by their own procedures, but they failed to fully follow their own process and contact local law enforcement. In this case, local law enforcement knew of Cruz, having responded to calls relating to him at his residence at least 20 times. If the FBI followed through on its own process, perhaps that would have made a difference.
The second tip was provided on January 5, 2018, which was more than 5 weeks before the Parkland shooting occurred. According to FBI Director Christopher Wray’s Feb. 16, 2018 Statement:
On January 5, 2018, a person close to Nickolas Cruz contacted the FBI’s Public Access Line (PAL) tipline to report concerns about him. The caller provided information about Cruz’s gun ownership, desire to kill people, erratic behavior, and disturbing social media post, as well as the potential of him conducting a school shooting.
Director Wray admitted that this was sufficient information to judge that Mr. Cruz was a credible “potential threat to life”:
Under established protocols, the information provided by the caller should have been assessed as a potential threat to life. The information then should have been forwarded to the FBI Miami Field Office, where appropriate investigative steps would have been taken.
Yet, Director Wray admits that the FBI failed to follow its own protocols. In this case, they failed to accurately complete Step 3:
We have determined that these protocols were not followed for the information received by the PAL on January 5. The information was not provided to the Miami Field Office, and no further investigation was conducted at that time.
Admissions of failure by the FBI are welcome, but they are not enough in light of the horrific loss of life in Florida. Such admissions sound particularly hollow in light of the federal government’s other recent failures to stop attacks. There are at least five other times the FBI or other federal agencies have failed to act on or report credible Intel that could have prevented an attack over the past seven years:
- On Jan. 6, 2017, Estaban Santiago shot up the Ft. Lauderdale-Hollywood airport, leaving five dead and eight injured. In Nov. 2016, Santiago walked into the FBI Anchorage Field Office and told the agents he was being forced to watch ISIS videos. They conducted an initial assessment, an interview, and database reviews, and then let him go.
- On June 12, 2016, Omar Mateen attacked the Orlando Pulse Nightclub, killing 49 people and injuring 58 others. The FBI had investigated and interrogated Mateenon three separate occasions over three years on suspicious of radicalization.
- On June 17, 2015, Dylann Roof, a white supremacist, attacked an African Methodist church, killing 9 and injuring one other. He should never have been allowed to purchase the gun he used in the attack. However, there was a failure to thoroughly complete his background investigation through the National Criminal Background Check System “because of mistakes by F.B.I. agents” and others, allowing him to purchase the gun.
- A similar error, this time by the Air Force, allowed Devin Patrick Kelley to obtain the weapon he used to attack the Church in Sutherland Texas in November 2017.
- On April 22, 2011, two years before the deadly Boston Marathon bombing, the FBI interviewed Tamerlan Tsarnaev and his brother Dzhokhar Tsarnaev over concerns of radicalization. They did not hold them. Two years later, they set off bombs during the 2013 Boston Marathon, killing three people and injuring several hundred.
This record indicates that the FBI is lacking in accountability and competence. As ACLJ Chief Counsel Jay Sekulow has argued in his book, Undemocratic: how Unelected, Unaccountable Bureaucrats are Stealing Your Liberty and Freedom, the federal government is neither constructed for proficiency nor susceptible to full-blooded reform.
Full-blooded reform means that public servants, including FBI officials connected to the FBI PAL should not enjoy greater job security than the public they serve. Accountability demands that public officials who make mistakes, which lead to the loss of human life, should be subject to immediate and unconditional termination from employment. This is an essential first step to restoring accountability and democratic governance to the FBI.
Admissions of failure by FBI Director Christopher Wray are largely meaningless without real reform at the FBI. The PAL, standing alone, cannot fully protect school children. Instead, the FBI must hold itself accountable, terminate employees who commit egregious errors, and begin the process of restoring the public’s trust in its ability to do its one job: protecting the American people.
Anything less is simply insufficient.
Used with the permission of the American Center for Law and Justice.
Harry G. Hutchison is Senior Counsel and Director of Policy for the ACLJ. He has served as a Professor of Law at the Antonin Scalia Law School, George Mason University, a Visiting Fellow at Harris Manchester College, the University of Oxford, and a Founding Fellow at the Oxford Centre for the Study of Law & Public Policy. His research interests include international affairs, corporate governance, labor and employment law, religious liberty and the application of economics to a variety of topics.