Can We Predict a Mass Shooting?

                                                         By David K. Shipler 

                 Hindsight is 20/20, so looking back, the warning signs seem crystal clear: the online postings, the violent drawings, the fascination with guns, the peculiar conduct, the disquiet of his peers, even the overt threats, which were missed or minimized by educators, police, and parents. The FBI calls those advance indicators “leakage,” a common characteristic of mass shootings. The coming danger should have been obvious. Or should it?

In recent decades, threat assessment has developed into a sophisticated methodology. So why wasn’t 18-year-old Payton Gendron stopped before he murdered ten people last Saturday at a Buffalo supermarket in a mostly Black neighborhood? Why wasn’t 15-year-old Ethan Crumbley stopped before he killed four and wounded six last November in his Michigan school?

The general answer lies in the failures of many local authorities to follow a 22-year-old FBI recommendation to appoint threat assessment coordinators and teams of skilled professionals on call for quick mobilization to assess risks. The FBI’s 46-page report from back then, “The School Shooter: A Threat Assessment Perspective,” is a nuanced analysis that ought to be in the top desk drawer of every school administrator and police commander.

“These threat assessment teams have to be multidisciplinary,” said former Supervisory Special Agent Mary Ellen O’Toole, who led the FBI’s project. “The reason is this: A single person looking at these warning signs might deem them to be not too significant, or they may inflate them, or they may not know what to do with them.” So, she told me, the team should include specialists from the school, the mental health profession, juvenile justice, law enforcement—and ideally, an attorney who could advise on whether, say, a backpack can be legally searched.

Threat assessment is not a perfect art, and over-zealous reactions carry risks to civil liberties. Preventive arrest in advance of a crime would be egregious. But short of that, measured interventions may have prevented mass shootings in “dozens of cases across the country,” according to Mark Follman, author of  Trigger Points: Inside the Mission to Stop Mass Shootings in America, a new book reporting on a team in an Oregon school district. In the case of one boy making threats, the professionals embraced him in a “wraparound” approach of counseling, academic help, and programs in and out of school.

The Next Trump

 

By David K. Shipler 

                Whether Donald Trump runs again in 2024 or fades from politics, his enigmatic hold on tens of millions of Americans will be a lesson to the next demagogue. Much will be learned from Trump’s successes in manipulating huge swaths of the public, and also from his failures to translate his autocratic desires into practical power.

                Just the fact that 72 percent of Republicans tell pollsters that they believe Trump’s discredited claim that he won the 2020 election is a mark of his perverse success in selling the Big Lie. His outsized personality, his ridiculous assertions, his coarse and insulting talent for channeling resentments felt by masses of alienated citizens placed him so far above reproach in so many minds that his obvious corruption and damage to the country’s reputation and national security made no impact on the committed. After four years of falsehoods, incompetence, and immorality, he won eleven million more votes than in 2016 (up from 63 to 74 million).

                He has deftly played the dual role of tough guy and victim, of swaggering bully and persecuted prey. This is a skillful embodiment of the wishes and fears of the millions, mostly white working class, who feel marginalized and dishonored while yearning for the wealth and strength that Trump appears to possess. He has given them the dignity that many feel they have been denied by the liberal, urban, multiethnic society that their country is becoming.

Despite his serial fabrications, his lack of moral boundaries made him seem authentic and unscripted. He was a paradox: an outsider but a pampered part of the corporate elite, a non-politician whose every move was politically calculated for his own benefit, a drainer of the “swamp” who wallowed in corrupt self-dealing. He was right when he said that he could shoot somebody on Fifth Avenue and not lose voters.  

But because Trump did not understand government and antagonized authoritative agencies, he was often stymied as he tried to rule dictatorially, above the law. He crudely attacked the intelligence agencies, the military, the FBI, and other power centers, precisely those that an autocrat would need to muster under his control. His impatience and incompetence stymied many of his efforts to shortcut the due process built into the regulatory system.

The FBI and the Trouble With Secret Warrants

By David K. Shipler

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

--The Fourth Amendment to the US Constitution

               

 The FBI, yet again, lied to the court, whose chief judge didn’t do her job properly and then excoriated the FBI. Republicans, who enacted and defended the secret system that permits such abuse, are suddenly in high dudgeon since the victim is one of their own. That’s the brief summary of the controversy over surveillance done on Carter Page, a campaign aide to Donald Trump. Whether something good comes out of the episode is an open question.

  There are basically two legal ways for the government to listen to your phone calls, read your emails, search your house, and invade other areas of your private life. One is with a traditional search warrant, signed by a judge after law enforcement swears that probable cause exists to believe that certain evidence of a specific crime will be found at a particular place and time. The other is with a secret court order under the Foreign Intelligence Surveillance Act (FISA), which requires something quite different: probable cause that you are an agent of a foreign power, meaning either a government or a terrorist organization. No crime need be involved, and the standard of particularity is largely waived.

                Other differences are notable. In a criminal case, the warrant is eventually disclosed and might be presented to the target at his door if he’s home as police arrive to do the search. He ultimately learns details of the searches. Theoretically, he should be able to see the affidavit on probable cause that the police submitted to the judge, so his lawyer can challenge the warrant’s basis and move in court to suppress the resulting evidence. However, in the experience of Richard Foxall, a defense attorney in California, judges rarely allow the defense to inspect the affidavits. (See Foxall's comment below.) That check on law enforcement doesn’t prevent all official wrongdoing, but it helps.

                No such transparency exists in FISA warrants. Not only are they issued in secret by judges in a secret court, they are executed without notice to the target and are never disclosed unless the government chooses to use the resulting evidence in a criminal trial, and even then the affidavits themselves are usually considered classified. Occasionally the FISA material is used as a basis for an ordinary criminal warrant, but defense lawyers are usually blocked from seeing the original application.

Spying on Americans

By David K. Shipler

            The truly serious problem behind the controversial memo released by the House Intelligence Oversight Committee is not so much political as it is constitutional. It is the flawed process of secret intelligence warrants that enable government authorities to do end runs around the Fourth Amendment. That broader issue underlies the question of how the FBI got a warrant to eavesdrop on Carter Page, one of President Trump’s campaign aides.

            Now that Republicans have suddenly discovered their keen interest in civil liberties (albeit for political reasons), they might well revisit their unyielding support of the loosened standards for obtaining warrants that they pushed through in a panic right after 9/11. With the acquiescence of Democrats, the Patriot Act—opposed by only one senator, Russ Feingold of Wisconsin—shot holes through the sensible restrictions on monitoring Americans’ communications.

            First, a bit of history. The Framers, reacting to the British use of writs of assistance to search whole towns for contraband in colonial times, wrote the Fourth Amendment to guard against government intrusion into a citizen’s zone of privacy. Although the word “privacy” does not appear in the Constitution, it is heavily implied and is woven into numerous court opinions.

            Significantly, the Bill of Rights assumes that the people possess rights inherently, not that they are given rights by the government. The Fourth Amendment declares: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

            The terms “unreasonable,” “probable cause,” and “particularly” are among the most commonly debated in criminal cases where searches produce evidence that defense attorneys seek to suppress. Did the police officer act reasonably? Did she have probable cause to believe that such evidence of a crime would be found at a specific time and place? Was the search narrowly tailored to focus only on that purported evidence? And so on.

Politicizing the FBI

By  David K. Shipler

            The FBI has never been entirely insulated from politics, especially during the long tenure of J. Edgar Hoover, who in his 48 years as director (1924-72) compiled compromising dossiers on government officials and private Americans that gave him enormous leverage. His agency tried to provoke Martin Luther King Jr. to suicide by threatening to publicize the civil rights leader’s womanizing. It sent phony letters to wives of Black Panthers, purporting to be from their mistresses. It conducted surveillance of labor leaders, members of Congress, and at least one Supreme Court justice, funneling information to presidents from Eisenhower to Kennedy to Johnson. (During the 1964 presidential campaign, LBJ had the FBI report on the staff of his opponent, Barry Goldwater.)

            The road back to those days would be long and difficult, even with a President Trump who lacks ethical and constitutional brakes. But it’s possible, and Trump’s next moves will be telling. The first question is whom he’ll nominate to replace James Comey, fired just days after Comey requested more assets for the FBI’s investigation of Russian involvement in Trump’s campaign. The second question is whether enough Senate Republicans will demand that the new director be unassailably independent.

Because, make no mistake: Trump wants to swing his weight around as decisively as possible, and no more dramatically than in security and law enforcement. This is not only about covering up a Russia connection; it is to set the stage for draconian measures against Muslims after the next domestic terrorist attack, to emasculate investigations into police brutality, and to turn the power of the FBI against political dissent. Comey would probably have stood in the way. As bumbling as he was in his public disclosures about the Clinton emails, he was also known as a defender of the rule of law.

The FBI has a sordid history of hunting for phantom communists, keeping loyalty files on hundreds of thousands of Americans, wiretapping without warrants, and infiltrating and disrupting antiwar and civil rights groups—especially under what the bureau called COINTELPRO during the Cold War. Only in the 1970s, after the Church committee exposed the broad swath of wrongdoing, were protections imposed. These included restricting the FBI director to a 10-year term to preclude another Hoover phenomenon. But the position has no job security, obviously, since the president may fire at will.

Can the FBI Be Trusted?

By David K. Shipler

            On a March weekend in 2004, senior fingerprint examiners were called urgently into work at the FBI crime lab in Quantico, Virginia. A print had come in from the Spanish National Police, found on a blue plastic bag of detonators discovered after ten bombs had blown up on trains in Madrid, killing 191 passengers and wounding more than 1,400. Under stress, the examiners hastily matched the print—erroneously—to Brandon Mayfield, an Oregon lawyer who had converted to Islam.

This case is worth recalling in light of the current uproar over Hillary Clinton’s emails, because it provides rare insight into the FBI’s capacity for circular reasoning and sloppy forensics—even downright intellectual dishonesty. Time and again over the years, Americans have seen that alongside the many fine FBI agents are lazy thinkers who filter evidence to suit their imagined theory of a crime, and who prejudge people based on religion and ethnicity.

The agency is less nefarious than under Director J. Edgar Hoover, when it launched covert operations against civil rights and antiwar activists, but it remains well below its mythical high standards. Given the rules-be-damned posture of its current director, James Comey, it needs to be watched closely.

Mayfield was arrested as a material witness, his reputation was shredded, his family was traumatized, and his law practice was severely damaged before he was cleared—not by the FBI but by the Spanish police, who kept insisting that the print was not a match at all. In the end, the FBI’s misdeeds cost taxpayers $2 million to settle Mayfield’s lawsuit.

The Privacy Problem: Security vs. Security

By David K. Shipler

            We might be approaching a tipping point about privacy, as dramatized by the Apple-FBI dispute over decrypting a terrorist’s iPhone. After years of seeing privacy and safety as opposites in the war on terrorism, important segments of American society seem to be recognizing personal security and national security as parts of the same whole, not as a dichotomy in a zero-sum game. If this evolution continues, it could eventually produce a significant correction to the surveillance state that developed after the trauma of Sept. 11, 2001.

In the meantime, however, the two versions of security are colliding: the government’s rising concern about security from crime and terrorism in an age of digital encryption on the one hand, and, on the other, the public’s heightened interest in security from hackers, identity thieves, cyber-ransom demands, and—yes—government surveillance. Both sets of anxiety are justified. How to resolve the clash intelligently is far from clear.

The FBI’s effort to force Apple to create new software to disable an iPhone’s security features is propelling the courts forward in time at a faster speed than they typically travel. They usually lag well behind technology. But now they and Congress need to catch up quickly. That phone and hundreds of others sit in evidence lockers waiting to be cracked by law enforcement, requiring a creative effort by judges, legislators, prosecutors, and high-tech companies to make it possible—legally and technically—to execute a legitimate search warrant on a particular device without the risk of compromising security on all such devices.

The Navy Yard and the NSA

By David K. Shipler

            With Congress locked in an ideological impasse, the U.S. government may look weak and bumbling, but it has never been more powerful in collecting personal information about Americans and foreigners—the guilty and the innocent alike. So how was it that the Navy knew less about Navy Yard shooter Aaron Alexis than the press was able to learn in a few hours? How come Alexis kept his Secret clearance despite police reports that he twice fired a gun, claimed to be hearing voices, and thought his brain was being manipulated by extra-low frequency radiation?

How did the Boston Marathon attackers escape detection, when one of them had been called to the FBI’s attention? And the would-be Christmas Day “underwear” bomber after his father warned the U.S. embassy in Nigeria? And—given the global reach of the National Security Agency—the al-Shabab squad in Nairobi’s Westgate Mall? The answers are specific to each case, but among them is this: A dozen years after the 9/11 attacks, the government has still not learned the central lesson of that failure, which is not about amassing information but, rather, how to connect the dots among disparate points of data that have been filtered and focused. The lesson has remained unlearned partly because the indiscriminate collection accumulates unprocessed information so rapidly in such volume as to be practically useless.

Obama's Search For the Next Era

By David K. Shipler

            Perhaps the most salient element in President Obama’s speech on national security last week was his attempt to begin weaning the United States from its post-9/11 mindset. If he pursues the effort and revises policy accordingly, he might help the country move away from fear and back toward the constitutional principles that have been sacrificed unnecessarily. This would end an era that is begging to be left behind.

            But his record has not been encouraging, and the environment he faces is not helpful. The problem is a mixture of reality and beliefs. Fear has to abate, but it won’t when real terrorism maims and kills at a Boston Marathon, or when the word “terrorism” is applied too broadly, as Republicans and some conservative pundits demand. Hardly anyone is comforted to learn, as Obama explained, that the threats now come from atomized al-Qaeda offshoots and radicalized individuals, rather than by centralized direction.

Yes, as he noted, that looks more like the baseline of terrorism the world has endured since long before 9/11. But it is not enough for Obama to say so. As he may have learned from earlier attempts to change emotional dynamics through speechmaking, actions speak louder than words. His well-crafted 2009 Cairo speech extending an open hand to the Muslim world was not followed by intensive, inventive policy. Four years later, on the other hand, his recent address in Jerusalem on Israeli-Palestinian peace is being followed by Secretary of State John Kerry’s shuttle diplomacy—a good effort whose outcome is not yet clear.

So let’s see if Obama follows his words on national security. He might consider how his administration’s behavior contributes to the problem of belief—namely, the public’s belief that we are still in the war whose end he now wishes to declare.

Terrorist Plots, Hatched by the F.B.I.

By David K. Shipler
(as published in The New York Times Sunday Review Apr. 29, 2012)

THE United States has been narrowly saved from lethal terrorist plots in recent years — or so it has seemed. A would-be suicide bomber was intercepted on his way to the Capitol; a scheme to bomb synagogues and shoot Stinger missiles at military aircraft was developed by men in Newburgh, N.Y.; and a fanciful idea to fly explosive-laden model planes into the Pentagon and the Capitol was hatched in Massachusetts.


But all these dramas were facilitated by the F.B.I., whose undercover agents and informers posed as terrorists offering a dummy missile, fake C-4 explosives, a disarmed suicide vest and rudimentary training. Suspects naïvely played their parts until they were arrested.