Did the FBI Bungle the Tsarnaev Case?
What the bureau can and can't do on American soil.
BY DAVID GOMEZ | APRIL 25, 2013
The FBI is taking a lot of heat in the press and from Congress for how it
handled its 2011 investigation of Tamerlan Tsarnaev, which was opened after
Russian officials fingered him as an extremist. Critics have charged that
the bureau closed its inquiry without continuing surveillance after it
failed to find any connection to terrorism. And, on Wednesday, Senator
Richard Burr went a step further, alleging that the bureau had ignored
follow-on requests from Russian officials. The suggestion, obviously, is
that the bureau brushed aside clear warnings that could have prevented the
Boston Marathon bombing.
But it didn't. Individuals familiar with the FBI investigation have
confirmed to me that Russia made no official requests to the bureau beyond
its original request. These individuals also said that Russian officials did
not respond to the FBI's requests for additional information and noted that
such behavior is not unusual: Russia's intelligence service, the FSB, has
often failed to proactively aid the FBI's counterterrorism efforts -- it has
been more concerned with appearing cooperative than with providing actual
assistance.
What's more, it is clear that the majority of the FBI's critics simply don't
understand how terrorism investigations work. Despite the fact that the
bureau's responsibilities were significantly expanded after the September 11
attacks, there are very tight restrictions that govern the investigation on
U.S. soil of potential national security threats.
The FBI's procedures for investigating terrorism today are a legacy of the
Church Committee investigations into its counterintelligence program, which
targeted domestic radicals in the 1960s and 1970s. The committee found the
bureau had engaged in widespread unauthorized surveillance, wiretapping, and
break-ins, and had illegally opened U.S. mail. Those findings spawned rules
known collectively as the Attorney General's Guidelines (AGG) for General
Crimes and the AGG for National Security Investigations, which established
standards for opening and closing investigations and restricted what sort of
investigative tools the FBI could use for each. No longer would the FBI be
able to indefinitely investigate an individual without probable cause to
believe that a federal crime had been committed or that a national security
threat existed.
These guidelines worked fairly well until the investigation into Zacarias
Moussaoui, believed to have been the 9/11 plot's 20th hijacker. Initially
arrested for immigration violations a month before the attacks, the FBI
suspected Moussaoui was involved in a terrorism conspiracy based on his
attempt to learn how to fly a 747 aircraft -- even though he had no prior
flight experience. The bureau's Minnesota office wanted to search his
residence and computer, but officials at FBI headquarters and the Department
of Justice decided that the AGG for National Security Investigations did not
permit them to seek a warrant under the Foreign Intelligence Surveillance
Act (FISA). That law required the FBI to establish probable cause that
Moussaoui was acting as an agent of a foreign power and that the primary
purpose of the warrant was not for criminal prosecution. Failure to meet
these criteria would violate the concept of the FISA "wall," which
restricted the ability of federal law enforcement officials to cooperate and
share information with intelligence agencies. The wall meant that
intelligence agents could not share any FISA warrant information with law
enforcement agents working on the same subject. At that time, the FBI had
insufficient probable cause for a regular criminal search warrant.
The result, of course, was that law enforcement missed an opportunity to
stop the 9/11 attacks, and that debacle was part of the impetus behind the
Patriot Act, which amended FISA, lowering the standard from probable cause
to reasonable suspicion, and allowing for the sharing of intelligence with
agents working on criminal prosecutions. To account for the wall's collapse
-- and the increasing number and complexity of terrorism cases -- the FBI
director commissioned the bureau's legal advisors to rewrite the old
guidelines. The first edition of the new Domestic Investigations and
Operations Guidelines, or DIOG, was published in January 2008 and later
updated. These guidelines for investigative activity are what governed the
FBI's response to the Russian inquiry on Tamerlan Tsarnaev.
The DIOG created a new category of investigation called an assessment. Each
assessment was required to have an authorized purpose and an identified
objective: "The basis of an assessment cannot be arbitrary or groundless
speculation, nor can an assessment be based solely on the exercise of First
Amendment protected activity, or on the race, ethnicity, national origin or
religion of the subject." That means that someone like Tamerlan Tsarnaev
could espouse sympathy for militant Islam without fear of investigation by
the FBI -- as long as he didn't cross the line into activity that
constitutes a violation of federal criminal law or a threat to national
security -- because the Constitution protects his right to freedom of speech
and religion. Tamerlan, as a permanent resident alien, a green card holder,
was entitled to the same constitutional protections as any American citizen.
The request from the FSB would have resulted in the opening of a Foreign
Police Cooperation case -- functionally the equivalent of an assessment. We
know that the Boston field office then checked bureau files, records,
databases, telephone communications, and any prior investigations into
Tamerlan's activities. But Foreign Police Cooperation cases, like
assessments, do not allow agents to use any legal process, such as a search
warrant, in conducting their inquiry, and much like assessments, they are
routine. As the last step, the FBI interviewed Tsarnaev and his family.
According to its April 19 press release, "The FBI did not find any terrorism
activity, domestic or foreign, and those results were provided to the
foreign government in the summer of 2011. The FBI requested but did not
receive more specific or additional information from the foreign
government."
To do anything more than this -- that is, to move the inquiry of Tamerlan
Tsarnaev from a Foreign Police Cooperation matter into the more involved
predicated investigation known as a preliminary inquiry -- the FBI would
have needed reasonable suspicion that he was breaking the law or presented a
documentable threat to national security. It was the responsibility of the
investigating office, in this case the Boston field office, to independently
develop information or probable cause to open a predicated investigation
against Tamerlan. Based on what the FBI -- and the CIA -- are reported to
have known at the time, that higher standard did not exist.
If a preliminary inquiry had been opened, the substantive differences would
have been the time allowed -- 90 to 180 days, versus 30 to 60 days, to
complete the investigation -- and the ability to obtain search warrants and
to conduct physical and possibly electronic surveillance of the subject.
Given that the Boston office probably had much higher priority targets while
it was assessing Tamerlan and that the Russian information was minimal at
best, it is highly unlikely that the FBI conducted physical surveillance
beyond what was required to identify him and get a sense of his daily
activities. At any one time, a large field office like Boston can be working
dozens of full field investigations and hundreds of preliminary inquiries.
The FBI director has instructed field offices to leave no counterterrorism
work unaddressed, so triaging a foreign police cooperation case like
Tamerlan's would have been important to maintaining investigative
equilibrium.
Assessing whether the FBI bungled the Tamerlan inquiry requires
understanding not only what is authorized under a Foreign Police Cooperation
case, but also what is not. The DIOG generally requires FBI agents to use
the "least intrusive method" possible and emphasizes that the FBI is
"responsible for protecting the American public, not only from crime and
terrorism, but also from incursions into their constitutional rights."
Therefore the idea that the FBI could conduct indefinite surveillance of any
individual suspected of terrorism without an ongoing reasonable suspicion of
federal criminal activity flies in the face of both the bureau's manpower
capabilities -- which are not unlimited -- and the responsibility to protect
individual civil rights.
Much has been made of the fact that the FBI was unaware of Tamerlan's
subsequent trip back to Russia in 2012. Little criticism is being raised,
however, regarding the FSB's responsibility to provide information about
that visit -- information that the FBI is on record as having requested. It
is hard to believe that the FSB -- having initially requested that the FBI
investigate Tamerlan because it feared he would link up with extremists in
Russia -- would have allowed him to travel in the country unobserved and
uninvestigated. Rather, based on my experience, the FSB would have initiated
a vigorous internal security response to someone they regarded as a
potential enemy of the state. The real question is what they learned about
Tamerlan's activities in Russia and why they didn't share it with the FBI.
Despite the anger we feel over Tamerlan Tsarnaev's involvement in the
bombing of the Boston Marathon, the killing of three spectators at the race,
and the cold-blooded murder of a police officer, both he and his brother
Dzhokhar were considered United States Persons under the law at the time the
Russians made their request. That means that they were protected from
unnecessarily intrusive investigative techniques by both the DIOG and the
U.S. Constitution. The FBI did not bungle the Tamerlan inquiry. It followed
the law.
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