How The FBI's Wiretaps And Sting Operation Failed To Stop The Orlando Shooter
TERRY GROSS, HOST:
I'm Terry Gross. The bombing of the airport in Turkey and the mass shooting at the Pulse nightclub in Orlando are the latest tragedies showing how difficult it is to catch terrorists before they attack. The FBI twice investigated the Orlando shooter, Omar Mateen, as a potential terrorist and decided to close his case.
The FBI has always faced a tough challenge in tracking terrorist threats. But it's even harder now that lone actors are committing mass murders using guns in a nation filled with easily-accessed firearms. On today's show, we're going to talk about how the FBI tries to identify suspected terrorists and foil their plots and whether watch lists are an effective tool.
Our guest is Eric Lichtblau. He's an investigative reporter at The New York Times Washington Bureau, covering national security and the Justice Department. In 2006, he and James Risen won the Pulitzer Prize for national reporting for breaking the story of the Bush administration's warrantless wiretapping program.
Lichtblau spoke yesterday with FRESH AIR contributor Dave Davies.
DAVE DAVIES, BYLINE: Well, Eric Lichtblau, welcome back to FRESH AIR.
ERIC LICHTBLAU: Great to be here. Thank you, Dave.
DAVIES: Let's start by talking about Omar Mateen, the shooter in the massacre in Orlando. The FBI, we know, did investigate him. What drew their attention to Omar Mateen?
LICHTBLAU: Right. They actually looked at him twice in the years before the shooting. The first time was an investigation into some disturbing comments that he had made to co-workers of his.
He worked as a security guard for a private security company, G4, and was working the courthouse duty and was heard making a whole string of comments claiming that relatives were tied to terrorism - al-Qaida - that he wanted to martyr himself - you know, some troubling and disturbing and incendiary remarks.
So these were passed on to the FBI. And that alone was grounds enough to open an investigation - preliminary investigation - into him. And they worked that pretty hard. They used an undercover informant to try and see whether he was really planning anything. They did surveillance. They did wiretapping. They interviewed the co-workers, obviously. They extended the investigation past the six months that they were originally allowed to go.
And after about 10 months, they closed it down. They said they did not have enough evidence to indicate that he was supporting terrorism or planned to act on his earlier comments. In fact, they interviewed him, and he claimed that this was said out of anger in response to what he thought was ridiculing from his co-workers. So he said he was making this stuff up, essentially, because he wanted to respond to their ridicule.
And the FBI kind of threw up its hands and closed the investigation. So that was the first time. That was in 2012, 2013 into 2014. And then just a few months after that, through really coincidence, his name surfaced in a much more serious investigation, at that point, into a suicide bomber from Florida, a guy by the name of Abdul Salah, the first American suicide bomber in Syria as part of ISIS.
And Mateen's name surfaced there as someone who had gone to the same mosque as Abdul Salah and had known him apparently casually. So they looked at him again. And they interviewed him again. They interviewed him a total of three times between that first investigation and the second time. And he said he didn't know much about him. And there was no evidence to contradict that.
So yeah, you had this difficult situation where the FBI had this guy on the radar twice within a period of about two years before the shootings in Orlando and did not and was unable to act on it.
DAVIES: Was he on a watch list over the course of this?
LICHTBLAU: He was on a watch list. He was on a watch list for almost a year until about 2014. He was on the FBI's watch list. He was on a no-fly list. But what happened at the end of that once the investigation was closed - his name was taken off the watch list.
Now that's actually a sign of the progress in the watch list - where lots of people complained for years and years that their names were improperly put on watch lists. And they remained on those list for years afterwards. And it was almost impossible to get your name off.
The fact that he was taken off the watch list so quickly was a sign of progress in terms of civil liberties.
DAVIES: So once that investigation was closed, it was a matter of Justice Department policy to take him off the list?
LICHTBLAU: Exactly. The FBI had been criticized before that for keeping people on those lists too long, even though they had been cleared, in effect, of any criminal charges. And so in the last few years, the FBI had gone to great lengths to do a better job of taking people's names off those lists once the investigations were closed.
And he was one of thousands and thousands of people whose names were then much more quickly and efficiently taken off those lists. And so at the end of the day, we're left with this sad and ironic situation.
DAVIES: If he had still been on the list, would that have affected his ability to buy the weapons that he did?
LICHTBLAU: Yes and no. Under the law, he still would have been able to walk into a gun shop, even if his name was on a terrorist watch list, and still buy a gun. That's been a matter of intense debate in Washington for the last few years. The critics call it the terror gap.
The fact that you can be on a terror watch chart or watch list and be prevented from getting on a plane - but you could still buy a gun. What could have happened if you were still on that terror watch list, as of earlier this month, was that the FBI at least would have been pinged - would have been notified, in theory, when he went in to buy that semi-assault weapon and a 9 mm pistol.
And at least they would have known. Would that have done any good? Impossible to say - but someone on the Joint Terrorism Task Force who had looked at him earlier would have at least been cognizant that - hey, this guy who we looked at two years ago just went in to buy some pretty serious firepower. What does that mean?
They couldn't have stopped it because, remember, being on a terrorist watch list is not a prohibited category. If at the end of three days, there is nothing stopping the sale, it can automatically go through. Once that happens, the process is over. There's no registry that can be kept after the fact.
And the NRA and gun rights people have fought very hard to make sure that there is not a national registry, per se, of firearms. The process is all front-ended to see whether or not someone is allowed to buy a gun or not. And after that - after the sale goes through - those records are then destroyed.
DAVIES: We hear a lot about terrorism watch lists. Can you clarify? How many lists are there? What distinguishes them?
LICHTBLAU: Yeah. There's really not a single list. There's a whole catalog of lists, if you will. There's a master list that's kept by the intelligence community by the National - NCTC, the National Counterterrorism Center, which has, believe it or not, 1.5 million names on it. Most of those are overseas.
Only about 15,000 at last count were U.S. residents. And most of those are what are seen as foreigners with terrorist ties - most of them in the Middle East or in countries seen as supporting terrorism. Now, within different agencies, such as the FBI, which we talked about, or DHS - its component agencies - TSA being a big one - those in charge of flights. They all have their own lists.
So this has been an enormous growth industry, really, since 9/11 in the last 15 years. At the time of the 9/11 attacks, there were a total of 16 names on the no-fly list. Now there are anywhere from 80 to 90,000 just on the no-fly list portion and then hundreds of thousands more on other lists.
So the result of 9/11 was to err on the side of caution whenever possible. And if you're not sure whether someone could be a threat, put their name on the list. And as we talked about earlier, the civil liberties implications were huge because lots of people ended up on the lists who probably should never have been in the first place.
And it was very, very difficult - and still is, in some cases, very difficult to get your name off of that. There are Muslim Americans who have sued and are continuing to sue the Justice Department and the federal government because they believe they've been racially profiled - that their names are on there just because - in some cases, just because of their religion or their names. There have even been members of Congress. Ted Kennedy - the late Ted Kennedy - was one famous example.
LICHTBLAU: His name was apparently similar to someone overseas, and he was put through secondary screening at the airport. John Lewis, civil rights icon, another person who showed up on one of the lists. It's oftentimes difficult to tell why someone ended up on the list in the first place, whether it was because of a case of mistaken identity, that they had a name similar to someone else's, or was it racial or ethnic profiling or was this person a real terrorist threat. But the bottom line is that there are now, as I said, 1.5 million names on the biggest of all lists.
DAVIES: You know, the Orlando case presents this troubling example of someone who was investigated and apparently cleared by the FBI, felt they didn't have enough information to go forward to keep him even on a watch list. And then, of course, the massacre occurred afterwards. How many FBI terrorism investigations are open at any one time? Do we know?
LICHTBLAU: There are about a thousand open investigations at the FBI right now into what they call homegrown violent extremists, which are people that they believe were inspired by foreign terrorists, and that's overwhelmingly Islamic radicals. And people who are being watched because they fear that they may become lone wolves or may become Omar Mateens who act out in terrorist attacks. So that number has grown quite a bit in the last few years.
DAVIES: Eric Lichtblau is an investigative reporter at the Washington bureau of The New York Times. We'll continue our conversation after a short break. This is FRESH AIR.
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DAVIES: This is FRESH AIR, and we're speaking with Eric Lichtblau. He is a Pulitzer Prize-winning reporter for The New York Times covering national security matters and the Justice Department. We're talking about FBI investigations into potential terrorism suspects in the wake of the Orlando shootings.
You know, it's ironic that just a few days before the Orlando shootings you had a major piece in The Times about the expanded use of undercover operations by the FBI, particularly in cases of suspected involvement of terrorists associated with ISIS. Let's talk about that again. Let's just start with a very basic, simple question. When we say an undercover operation, how is that different from a standard investigation?
LICHTBLAU: Sure. These are basically stings where the FBI has identified someone they see as a potential threat, in this case because of support for ISIS. Now, overwhelmingly these people have been identified because of things they have said or done on social media through either semi-public forums, through Twitter or Facebook or Snapchat or Instagram. Or what they're seeing more and more is encrypted communications that the FBI has been able to break. And they want to know are these people serious about some of the things they said.
Now, it's not a crime to say I hate America or you go ISIS, but if that's taken to the next level, if you are pledging allegiance and support for ISIS that could conceivably be a crime. So the FBI, depending on how much of a threat they think someone is, has been resorting more and more to undercover operations, not just monitoring these people but sending in either actual FBI agents to pose as jihadists or ISIS sympathizers or sometimes even gun dealers or bombmakers or using informants in an undercover capacity. Those aren't FBI employees, but they're sort of acting as agents of the FBI to really determine their intentions. And what we found was that with ISIS occupying a greater place of concern for the FBI in the last 18 months, they have resorted increasingly to these undercover operations.
Now, about 2 out of every 3 FBI investigations into suspected ISIS supporters, they are approving undercover investigations to do that, which is a much higher percentage than we saw just a few years ago with these ISIS cases. So they are using very aggressive methods, not just as undercover observers but really as participants in cases to say, you know, here, help us out in buying some guns for an attack. Help us out with setting up a bomb to attack a synagogue.
DAVIES: You know, it must be much more time consuming and expensive to do an undercover sting where you have to give someone a false identity and take all this care and time with it. Is that being done more frequently now because terror networks have changed and the way they connect or operate with international accomplices has evolved?
LICHTBLAU: Well, I think - I think it reflects a couple of things. It reflects, first of all, the concern about ISIS, which has risen tremendously in the last 18 months or so as its prominence in the Middle East has risen. It reflects the difficulties of social media encryption. And what the FBI says is their frustration with going dark, that the terrorists on social media have found encrypted platforms - WhatsApp or or other platforms - where it is much more difficult than it was before to find out what they're really saying and doing.
So they feel that they need to send in these undercover operatives to develop a relationship of confidence where they can actually communicate with them in unencrypted ways and find out their intentions. So those are two of the biggest factors that explain why they have been moving so aggressively in these undercover investigations.
DAVIES: You know, there's also the phenomenon of the lone wolf, the person who is acting on their own with inspiration, perhaps, from other terrorists. And I thought we would play a clip here. This is from Adam Gadahn. Do I have the name right? I think...
LICHTBLAU: Gadahn, yes, yes.
DAVIES: An al-Qaida spokesman. And this is a video from 2011 where he is encouraging Americans to take action.
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ADAM GADAHN: America is absolutely awash with easily obtainable firearms. You can go down to a gun show at the local convention center and come away with a fully automatic assault rifle without a background check and most likely without having to show an identification card. So what are you waiting for?
DAVIES: Well, that's pretty chilling (laughter) you know, and...
LICHTBLAU: Right, right, he's clearly trying to sort of exploit the debate in America over access to guns and for purposes of ISIS propaganda.
DAVIES: Right, and I guess the challenge for the FBI is you're not just looking for people who may be getting finances or instructions from someone in the Middle East, but you have to figure out among those who have radical feelings and passions who among them are going to undertake an act like this. And the way to do it apparently is to have a, you know, someone in a sting operation suggest something and see who bites.
LICHTBLAU: Right, right, so who is actually going to act on these beliefs. There may be many thousands of people who have sort of sympathies for radical extremism or for ISIS, but who is actually going to act on it?
DAVIES: You describe a number of cases where this was done. You want to - you want to take one of them and tell us what the FBI did and what resulted?
LICHTBLAU: Sure. There was a case in Rochester, N.Y., last December where a local homeless man was thought to have been espousing views in support of ISIS. And they sent in several undercover operatives, and one of them even took the target of the investigation to Wal-Mart. He drove him there to buy tools to be used in the attack. He had wrist bindings and a machete and ski masks. And the guy had no money, so the undercover agent had to spot him the $40 to cover the cost of his his weapons and equipment for the attack.
And then they arrested him, and there are cases like that all around in North Carolina, in Florida, where the FBI undercover agents were playing very, very aggressive roles. This is something we talked to the FBI about, and they make no bones about it, the fact that they believe they have to be very aggressive in playing a role to see whether these guys are serious about attacks or not.
DAVIES: Yeah, you talk about a case in Florida of a guy who - and the FBI agent suggested attacking a synagogue and then introduced him to a purported explosives expert who was actually an undercover agent, gave him the fake bomb. There's also the...
LICHTBLAU: Right, right.
DAVIES: ...The case of the Newburgh sting in Newburgh, N.Y., where there's a documentary about this where...
LICHTBLAU: Yeah, that was a fascinating case before ISIS where the judge was clearly very, very troubled. She said in sentencing these four guys in Newburgh that had it not been for the FBI there would have been no plot. The FBI, in her view, created this entire situation. And yet she thought her hands were tied and sentenced all four of them to prison time because the FBI, at the end of the day, can point to its record of convictions in all of these cases since 9/11. And they have never been found to have breached the line of entrapment in Newburgh or in any of these other cases. They've been very aggressive, but they've been, in the view of the FBI and the judges, within the bounds of the law.
DAVIES: What exactly is the line if, you know, if they're dealing with someone who espouses radical views but they in effect brainstorm the crime and provide the implements of the crime? Under what circumstances can the - can the target be legitimately charged and convicted?
LICHTBLAU: If they can legitimately say that the person was predisposed to that mindset, that the FBI did not introduce the idea of radicalism to them, they can do an awful lot after that point. If they have identified someone who has already shown a proclivity towards a radical mindset, they can really go step by step in a purported plot - introducing fake Stinger missiles as they did in that Newburgh case and another case in Albany and others - fake bombmakers, fake gun dealers, fake attacks on synagogues or local establishments. As long as they're not just sort of willy-nilly identifying someone and introducing the idea, if they can say this is someone who is already walking down that road and we just sort of led him there a little bit quicker, they've upheld that in court.
DAVIES: You mentioned in the Rochester case that there was a homeless man that was induced to go buy some material for some terrorist acts. Are there cases in these investigations where the FBI is targeting people who may be mentally unstable or in some way mentally handicapped?
LICHTBLAU: Sure. In that Rochester case, the defense attorney did say that basically this was a mentally ill homeless man who had no real ability to carry out an attack and may have been delusional if anything. And that defense comes up in any number of these cases where you have guys of sort of limited abilities, limited means to carry out an attack. But what the FBI will say is that there are a lot of - a lot of mentally ill guys who can do a lot of damage and that that's not going to be a reason to write someone off as a suspect.
GROSS: We're listening to the interview Dave Davies recorded with Eric Lichtblau, an investigative reporter for The New York Times. After a break, they'll talk about how the FBI has remade itself in the years since 9/11. Also Maureen Corrigan will review Cathleen Shine's new novel about how one person's physical and mental decline affects the entire family. And Kevin Whitehead will review the final album by the late pianist and songwriter Allen Toussaint. I'm Terry Gross, and this is FRESH AIR.
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GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to the interview FRESH AIR contributor Dave Davies with Eric Lichtbau, who covers national security, the Justice Department and the FBI for The New York Times. They're talking about the challenges the FBI faces in identifying and catching terrorists before they attack. Lichtblau recently wrote about how the FBI is increasingly using sting operations to try to catch terrorists.
DAVIES: On the FBI sting operations, in these cases, FBI agents go undercover. And those are folks that are full time FBI people, and they have, you know, careers to think about and some level of control and supervision. To what extent do they use civilian informants who might be less reliable?
LICHTBLAU: Yeah, many of the undercover investigations do rely on undercover informants. These are nonemployees; these are people who sometimes are paid informants, sometimes are looking for a break in - perhaps in criminal cases that they themselves have pending against them. And they are under supervision of FBI agents. And they are, you know, sent in sometimes with specific instructions to try and lure a suspect, if you will, into saying or doing things that may rise to the level of criminal activity.
DAVIES: And are they problematic? Is their conduct different from an agent in ways that we should worry about?
LICHTBLAU: Well, you certainly don't have the accountability with an informant that you do with - an agent. The problem is we often may not know a lot from the public record as to what the informant is doing to get into the middle of a plot. We only know as much as the Justice Department is going to tell us in public filings for the most part. Sometimes we're able to find out more as reporters through our own reporting. But there is not the scrutiny on these informants that there is on FBI employees themselves.
DAVIES: You know, FBI agents, investigators are people, too. And anybody involved in a project at work wants to show a result, right? I mean, you are - you want to get your target. You want to - you know, you want to advance your career by building a case. And it surely must be tempting at times to push it as far as you can. And I don't know if you're comfortable expressing an opinion. But in the cases you've looked at, how do you - do you feel like they've gotten it about right?
LICHTBLAU: Yeah, that's the overarching question is whether the FBI has picked its spots correctly. Have they gone about identifying the real threats, the real possible lone wolves out there, or are they just going after people who have espoused unpopular views? And that's such a difficult question to answer. The civil liberties advocates would say that the - not just the FBI but the intelligence community in general since 9/11 has cast too wide a net when it comes to surveillance and undercover operations and a range of counterterrorism measures. But whenever we see a spike in threats, whether it's after Orlando or after the Paris attacks or San Bernardino, the pendulum inevitably shifts towards doing more, not less.
DAVIES: I think you made the point in that piece that one difference between a standard investigation, for example, involving a wiretap and an undercover operation, you need to get a warrant to do a wiretap. But an undercover operation can proceed on the Justice Department's own initiative.
LICHTBLAU: Correct. With a wiretap, a judge is involved, and there has to be a showing of probable cause with undercover investigations. That's up to the FBI and the Justice Department, a supervisor there to approve that. Now, the FBI and the Justice Department will tell you that's still a fairly high bar and that they are not going off without significant evidence. But there's not the check, there's not the court oversight that there is in these other cases.
And one of the added benefits in the FBI's view of these undercover investigations in going against ISIS is that the ISIS sympathizers have shown an ability to strike more quickly. The FBI will say that in the old days against al-Qaida eight, 10, 12 years ago, it might be months or sometimes even years before a plot took root and actually was executed, whereas the ISIS sympathizers, these lone wolves may be radicalized in a matter of weeks. And the so-called flash-to-bang period - the period between someone's inspired and the period when they act - may be very, very quick, and they need to go in quickly.
DAVIES: You know, in the piece that you wrote about undercover investigations, you noted that it's not just the FBI, that a lot of other government agencies are expanding undercover operations. What kind of agencies, with what effect?
LICHTBLAU: Yeah, absolutely. Again, since 9/11, the mindset has been more aggressive surveillance, more aggressive undercover. And so there are now upwards of 40 federal agencies doing undercover work that did not do it before. Medicare fraud - there will be undercover operatives posing as doctors. At the IRS, there's been an increase in accountants posing undercover. Even at the Supreme Court - at Supreme Court protests, we found that there will be undercover protesters looking for security threats. So it's really been a cottage industry for the federal government in terms of this boom in undercover work. And in the post-9/11 age, that's all been seen as necessary for the sake of national security.
DAVIES: Well, a lot of these things involve, you know, things like Medicare fraud or abuse of food stamps, right? Is it just...
LICHTBLAU: Food stamps, yes.
DAVIES: Is it just sexier to have a sting operation than have a big press conference?
LICHTBLAU: I think that the agents see it as sort of a cool part of their job and more effective in some ways. If you can send someone in, you're oftentimes going to get faster results and more effective results than just sort of watching an investigation play out. And we've seen a huge boom in that in the last 10, 15 years.
DAVIES: Do agencies running undercover operations ever run up against another agency also doing an undercover operation?
LICHTBLAU: That does happen. That does happen where you have, like, the FBI and the DEA not knowing that the other had an undercover presence, especially on the law enforcement side with ATF and DEA and FBI. That does happen more often than they would like.
DAVIES: They ever pull guns on each other?
LICHTBLAU: That is - that is rare. I think there have been one or two cases of that before they get off their badges and say hey, we're on the same side as you.
DAVIES: I was surprised to read the Supreme Court itself has 150 police officers, and they themselves go undercover - to do what?
LICHTBLAU: Right. Yeah, at protests outside the Supreme Court, whether it's abortion protests or affirmative action or anything else, the last few years, the Supreme Court has built up an undercover squad that sends people out dressed as protesters right into the into the center of the protests to see whether anyone is, you know, leaving a suspicious package or planning any sort of an attack. That was one of the ones that most surprised us in our reporting.
DAVIES: Eric Lichtblau is an investigative reporter for The New York Times in their Washington bureau, covering national security and the Justice Department.
In 2005, you and your colleague James Risen broke this huge story about the warrantless wiretapping program underway by the National Security Agency, which kind of reshaped the American debate on surveillance in the modern era. Update us on where that stands. Is the program still active? What's going on?
LICHTBLAU: Sure. It's taken a different format now. It's really become institutionalized in the last seven or eight years after the FISA Amendments Act and then the Protect America Act in 2007, 2008. A lot of the things that George W. Bush's administration was doing more or less on its own authority outside the boundaries of the court have now been written into the law.
And so what we saw happen, at least before the disclosures by Edward Snowden, was that the NSA was gathering enormous amounts of bulk metadata and using that to develop telephonic records patterns and surveillance activities. What happened after Edward Snowden was that there was, of course, a backlash to that. And the metadata program has now been been reined in, and the NSA's powers in that regard have been - have really been curtailed pretty significantly. So the pendulum, as we talked about before, keeps swinging back and forth. Right now when it comes to surveillance, the NSA has been more restricted than it had been just a few years ago.
DAVIES: You know, there is this Foreign Intelligence Surveillance Act Court, this court that was designed to exercise some control over surveillance in these investigations. And you write that it's been regularly making decisions and establishing law almost like a second Supreme Court on certain issues of privacy. You want to just explain this a bit?
LICHTBLAU: Sure. When it comes to surveillance law, yeah, the FISA Court has really created a whole body of law in secret, especially in the years before the Edward Snowden revelations in 2013. There were really broad laws being written - interpretations of the law being written in secret by the FISA Court as to what the NSA and the intelligence community could do in the name of national security with no real outside scrutiny.
One of the reforms that took place as a result of the Snowden revelations was that at least there's now an adversarial party, if you will, in that courtroom to act as a check to say hang on, we think there's another side to this other than what the Justice Department is presenting. So that is one mark of progress. But there are other areas where these secret opinions being issued by the FISA Court have, you know, essentially been written into law without even scrutiny or review by the Supreme Court.
DAVIES: And literally secret opinions - I mean, we literally don't know what they are?
LICHTBLAU: They are literally secret opinions. Only a handful of opinions from the FISA Court have ever become public, and the rest of them remain secret.
DAVIES: So do we know how they've affected our rights and privacy?
LICHTBLAU: Not really. Not to put too fine a point on it, but no - you know, we get leaks. With Edward Snowden, we got sort of a flood of leaks, and some of those opinions and orders became public. But if it's not for that, it's a lot of guesswork as to how the court and the intelligence community are really operating.
DAVIES: I think you're in as good a position as anybody else to answer this. How good a job has the FBI done since 9/11 of keeping us safe?
LICHTBLAU: Well, the thing that's most certain is that the FBI has managed to remake itself as as an intelligence agency. You know, before 9/11, counterterrorism was a part of its mission. It is now its overwhelming mission. So they have succeeded in really turning around this enormous agency and redirecting their efforts. Everyone at the Bureau knows that stopping a terrorist attack is now their main priority, and that's at the expense of white-collar crimes, of a whole range of other kinds of crimes that they used to pay more attention to than they do now.
They have been very aggressive. Now, lately we've had a string of incidents, beginning with San Bernardino and carrying on into Orlando, where there has been significant carnage. And so I think the FBI is looking to see what more could they be doing and should they be doing.
DAVIES: Eric Lichtblau, thanks so much for speaking with us again.
LICHTBLAU: Oh, thank you. It's my pleasure.
GROSS: Eric Lichtblau spoke with FRESH AIR contributor Dave Davies, who is also WHYY's senior reporter. Lichtblau covers national security and the Justice Department for The New York Times. Our book critic Maureen Corrigan will review Cathleen Schine's new novel about family, loss, aging and resilience after we take a short break. This is FRESH AIR.
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