Privacy SOS

As the trial of the century comes to a close, we are left with few answers to nagging questions about the FBI and the Tsarnaevs

Nearly two years after two bombs detonated moments apart at the finish line of the Boston Marathon, the lone person accused in the crime stands trial in federal court on terrorism and weapons of mass destruction charges. The jury is all but certain to convict, not least because his defense attorneys opened their arguments by pointing at their client and saying, “It was him.”

During the week of March 31, 2015, the DOJ and public defenders representing the defendant rested their cases. The defense and prosecution are slated to make their closing statements on Monday, April 6. Then, after jurors deliver what is certain to be a guilty verdict, the sentencing phase of the trial will begin. The only truly contentious portion of the trial will come during these sentencing arguments, where the defense will be allowed to present much more information about Tamerlan Tsarnaev than they could during the guilt phase. The stakes couldn’t be higher, for Dzhokhar ‘Jahar’ Tsarnaev faces the possibility of death by government execution.

But although this case and the circumstances around it have attracted unprecedented media attention, shocking government reversals and gaping holes in the official narrative of events have gone largely undiscussed. That’s a tragedy.

The bombings the FBI blames squarely on Tamerlan Tsarnaev’s younger brother, 21 year-old Cambridge resident Jahar, set off a chain of events in my city that are hard, even now, to reconcile with the quiet university town I’ve known my entire life. The peculiar circumstances surrounding the attacks and what amounted to the declaration of martial law in the Boston area four days after them raise substantial civil liberties questions that strike at the heart of current debates about the proper role of the FBI, the Bureau’s aggressive actions in Muslim communities, limits on surveillance in a democratic society, and transparency and accountability in the so-called “War on Terror.”

It’s hard to know what civil liberties lessons to draw from the Boston Marathon bombings and the myriad mysteries surrounding them, however, because there are so many known unknowns. Like many Bostonians, I’m still grappling with what happened in the days, weeks, and months after the bombings.

I have lots of questions.

The first series interrogates the story about what happened in the immediate aftermath of the attacks, focusing in on when the FBI first positively identified the Tsarnaev brothers as their suspects, and what they did next.

How could the FBI have forgotten about Tamerlan Tsarnaev?

What was the FBI doing in the days following the Monday, April 15, 2013 bombings? The Bureau claims that, while it first found images of their suspects on Wednesday morning, it didn’t identify Tamerlan Tsarnaev by name until his dead body was fingerprinted at about 1 AM on Friday. If that’s true, why didn’t officials recognize Tamerlan Tsarnaev in the surveillance footage they reportedly first found Wednesday morning? After all, in 2011 the Boston FBI office investigated Tamerlan for at least three months. Agents allegedly asked him to become an informant. How could the FBI officials who spent three months investigating Tamerlan, and maybe even cultivated him as an informant, forget about him less than two years later, when he was the FBI’s most wanted person in the world?

Stranger still, the elder Tsarnaev was a relatively famous boxer in the region. The FBI has said the photo of the brothers was probably widely disseminated among police prior to its public release. But apparently no one recognized Tamerlan, a man who was clearly known to the Boston FBI office and who won the 2009 and 2010 heavyweight New England Golden Gloves boxing championships. One particular cop, Boston Police Officer Sean Gannon, trained at Tamerlan’s gym, Wai Kru. Gannon was employed by the BPD in 2013, and according to a mixed martial arts website, served at the Department of Homeland Security-funded “counterterrorism” fusion center, the Boston Regional Intelligence Center (BRIC), where he worked on gang, intelligence, and homeland security issues.

Screenshot from MMA website identifying Sean Gannon as a BRIC employee and Wai Kru instructor.

In order to believe the FBI’s story about when it first positively identified Tamerlan by name, you therefore have to also believe that FBI officials decided to share the surveillance images of the brothers with the entire world before sharing them with the Boston FBI agents who had investigated Tamerlan in 2011 and police officers like Sean Gannon, who almost certainly knew him. Was this rank incompetence? Or is there something more to the story?

And given the obvious danger involved in alerting the suspects that the government was hot on their trial, why did the FBI decide to blast to the world pictures of Tamerlan and his little brother on Thursday at 5:30 PM? An FBI-endorsed ‘documentary’ about the Boston Marathon investigation contains interviews with FBI agents who said they decided to release the photographs because someone inside the FBI had leaked the images to the press, and a journalist was threatening to publish them. The decision to publish the photographs was a move to assert FBI control over public perceptions, the agents said.

Elsewhere the Feds told a totally different story, namely that they decided to release the photos to quiet down reddit users and press outlets like the New York Post, which were spreading photos of people the FBI did not consider suspects. In this rendition, the Feds released the images to protect innocent people from being smeared by well-meaning fools on the internet.

Former Boston Police Commissioner Ed Davis put forward a third explanation. According to Davis, the photos were released to protect Bostonians from further attacks. “It forced them out of their hideout and they decided to commit further violent acts. But it’s my belief that they were already manufacturing explosive devices. Further violent acts were inevitable,” Davis said.

Regardless of which story you believe about why the FBI released the photographs of the Tsarnaevs, it’s clear that their decision to do so had huge, disastrous consequences. But was that inevitable, as Davis asserted?

Reports from associates and classmates of the Tsarnaevs indicate that almost immediately after posting the images the Bureau received a number of calls from people who identified the brothers. The FBI has testified in the Tsarnaev trial that both brothers were at home—Dzhokhar at Umass Dartmouth and Tamerlan in Cambridge—all week up to Thursday afternoon. On Thursday evening, Dzhokhar apparently left campus and drove to his brother’s house in Cambridge. All of that begs the question: Why didn’t officials apprehend the Tsarnaevs after people called the FBI hotline to identify them?

If it’s true, as the FBI claims, that no one inside the Bureau knew their names until after they had killed a cop, carjacked a man, and engaged in a firefight wherein they threw bombs at police, why isn’t there an investigation into the gross incompetence that produced this deadly failure?

We know that as of April 2013 the FBI had—at the very least—investigated Tamerlan Tsarnaev. It’s hard to believe that those agents and other law enforcement officials didn’t recognize the locally-famous boxer. Even if that’s true, however, the failure to make use of the information from callers to the FBI tip-line raises questions about the FBI’s basic competence. An FBI official answering phones at the FBI’s hotline would only have had to do a quick Google image search to confirm that the man callers said was Tamerlan Tsarnaev was in fact the Chechen immigrant. Was it gross incompetence? Why hasn’t there been an investigation into exactly what transpired at the FBI that Thursday?

An investigation might reveal answers to other questions about events that night—questions apparently posed by local police officers themselves, who were, it seems, so alarmed by the FBI’s actions on Thursday night that they alerted a senior Republican Senator known for his whistleblower advocacy.

Sean Collier’s police cruiser, where he was found dead on MIT campus at about 10:30 on Thursday night. This image was entered into evidence in US v. Tsarnaev.

Primary among those questions is this: What, exactly, was the FBI doing in Cambridge on that Thursday evening, just days after the bombings, swarming an area a short drive from where MIT police officer Sean Collier was killed that very night? Whatever happened upset local law enforcement officials so much that at least one of them apparently blew the whistle to Senator Chuck Grassley, who publicly questioned James Comey about the Bureau’s activities in Cambridge on April 18.

According to Grassley’s October 2013 letter to the FBI, Cambridge police officers assigned to the FBI’s Joint Terrorism Task Force operation were kept in the dark about the FBI’s activities in Cambridge on Thursday night, just before all hell broke loose. Why weren’t those officers informed of the “multiple teams of FBI employees conducting surveillance” in Cambridge that fateful night? What were those surveillance teams doing? And why did one MIT police officer tell reporters that he and other local police thought the FBI knew who the brothers were—and was staking out their Cambridge apartment—before Officer Collier was killed?

Thursday night’s events are hardly the only mysteries yet to be unlocked in the strange Tsarnaev affair. These are mysteries that the trial will almost certainly not solve, due to the defense’s strategy not to contest Jahar’s guilt and instead focus laser-like on sentencing. But after almost two years of closely studying this case, I have come to believe that in order to understand the Boston Marathon attacks and subsequent events, we must go back much further, to events in September 2011, when three friends of Tamerlan Tsarnaev were nearly decapitated in a bizarre, still-unsolved murder in the quiet Boston suburb of Waltham.

Did Tamerlan Tsarnaev kill his best friend and two other men in that grisly triple murder on September 11, 2011? 

On April 22, 2013, just a week after the bombings and only days after militarized police and federal agencies shut down the Boston metropolitan area for a full workday, ABC news published a shocking report by Boston based journalist Michelle McPhee. “Boston Bomb Suspect Eyed in Connection to 2011 Triple Murder,” the headline screamed. Citing unnamed “investigators in the Boston suburbs” and a spokesperson for the Middlesex District Attorney’s office, McPhee reported that “the bomb attack prompt[ed] a fresh look into Tsarnaev’s alleged penchant for violence,” and his possible role in the Waltham killings.

Reporters—locals and out-of-towners who had descended on the city to cover the attacks—were suddenly hot on the trail of a juicy new story. Buzzfeed reporter Rosie Gray interviewed a friend of the late Brendan Mess, identified as Ray, who said Tamerlan and the deceased martial artist were close friends. Gray’s was one of many reports that week featuring jaw-dropping comments from friends and family of the victims of the Waltham murders who recalled with suspicion Tamerlan’s absence from Mess’ funeral. If Tamerlan, who once introduced Brendan to a fellow fighter as his “best friend,” was so close with Mess, why didn’t he show up to mourn with other friends and family? Mess’ friend Ray told Buzzfeed’s Gray that “following the murder, [Ray] was questioned by detectives who told him Tsarnaev may have been with Mess either the day of or the night before” the killings. Despite all of this, authorities investigating the murders reportedly never even interviewed Tamerlan about the killings. It was the first among many bombshells that raised troubling questions about the government’s competence in the strange case of the brothers Tsarnaev.

Massachusetts District Attorney for Middlesex County Gerry Leone speaks with reporters outside the house where Brendan Mess and his friends were murdered. The bodies were discovered on 9/12/11, when Leone gave this impromptu press conference. It was the last time the public would hear any substantial information about the murders—that is, until the Boston Marathon bombings. Strangely enough, Gerry Leone was a Golden Gloves referee at the Lowell auditorium where Tamerlan won the 2009 and 2010 championships.

(Please note that by playing this clip, YouTube and Google will place a long-term cookie on your computer.)

Weeks later, another Michelle McPhee report provided more information from unnamed law enforcement sources: In May 2013, officials told ABC they had forensic and cell phone location evidence tying Tamerlan Tsarnaev to the crime scene nearly two years prior.

All of this news was stunning. A horrific murder case that had been cold for nearly two years—a case that detectives had, years before, literally told victims’ families would solve itself—was suddenly in the news again, with anonymous officials pinning the crime on a man who just weeks before had been gunned down by police in a bizarre shoot-out, a man who just months before the murders had been the subject of a federal terrorism investigation. Despite Tamerlan’s connection to Mess, police never interviewed him. Law enforcement leaks in 2013 revealed that investigators had phone records and forensics tying him to the crime scene. Why did they sit on that evidence for almost two years, waiting to release it until he was dead?

But the case only got stranger. A year later, in court in 2014, the Department of Justice claimed it had no evidence that Tsarnaev was involved in the Waltham killings. Why has the FBI said contradictory things about his role in those murders? What really happened? Did Tamerlan Tsarnaev kill those three men in 2011, or not? And why has the government’s story about these murders changed? The conflicting stories the government has told the public about Tamerlan’s role in the Waltham murders raise troubling questions about the FBI’s narrative related to another violent incident: The killing of Ibragim Todashev at the hands of a Boston FBI agent.

What really happened in Orlando, Florida in May 2013, when the FBI killed Tamerlan Tsarnaev associate Ibragim Todashev by shooting him seven times—including three times in the back and once in the top of the head?

Initially, the FBI said Todashev lunged at officers as he was writing a confession, implicating himself and the deceased Tsarnaev in the 2011 Waltham killings. But later, after the Tsarnaev defense team asked the court to compel the government to hand over investigatory records related to those murders, the feds threw up their hands and said they had “no evidence” of Tsarnaev’s involvement in the crime.

The circumstances surrounding Todashev’s death are still opaque, despite the publication of numerous government reports about the incident. The Feds say they rushed down to Florida to interrogate Todashev for what they promised would be his “last interview.” After watching him for a month, following him around with teams of agents on the ground and via aerial surveillance, they claim they were worried he would try to flee the country. Todashev had booked a ticket to leave the country, we are told, and that’s why the Massachusetts Troopers and Boston FBI official rushed down to Florida to question him in his apartment in the middle of the night, even though officials knew the mixed martial arts fighter could kill someone with his bare hands.

We still don’t have a full window into the Massachusetts State Police troopers’ involvement in the interrogation that resulted in Todashev’s killing. Former Massachusetts Attorney General Martha Coakley refused to investigate the role of those troopers, in effect rendering any hope for an external investigation dead. But there’s a lot to investigate.

Why did the officials really feel so compelled to rush down to Florida to interrogate Todashev in his apartment, in light of the federal government’s near authoritarian power to stop and detain people at the border? Why did one officer text the others “well done men we all got through it” the next day, given that they had killed a man they then claimed was the lone surviving witness to an open triple murder case?

And if Todashev and Tsarnaev did kill those three men in Waltham, as police once said, could a competent murder investigation in the wake of the homicides have prevented the Boston Marathon attacks two years later? What is the current status of that murder investigation? Why, if the two primary suspects in the murders are dead, does the government continue to refuse to release any information about the case, claiming that the investigation is ongoing?

In October 2014, Ibragim Todashev’s mother in law, a former US Army employee who says she was fired without cause after the FBI killed him, stood outside Boston’s federal court house holding a sign bearing Todashev’s image that read: “I am dead because I knew Tsarnaevs. I knew the truth.” Todashev is dead, and most of the people who knew him in Florida have vanished from within interview range of all but the most tireless and well-resourced US reporters, chased out of the country by federal agents. What’s the story behind the federal government’s harassment and deportation of people close to the Orlando MMA fighter, dead at the end of FBI agent Aaron McFarlane’s gun?

If Tamerlan Tsarnaev and Ibragim Todashev did kill the three Waltham men, why is the investigation still open? And if they didn’t, why did the government claim to possess forensics evidence saying they did? How could Todashev have been killed while confessing to a crime he didn’t commit?

That’s all alarming in it’s own right. But perhaps the most troubling line of questioning for the US government relates to the possibility that Tamerlan was working in some capacity for the FBI, or had at the very least been approached to become an informant.

What was the true nature of the FBI’s relationship with Tamerlan dating back to at least four years ago?

Did the FBI approach Tamerlan to become an informant, as the Tsarnaev defense team alleges? If not, why not, as Senator Chuck Grassley asked FBI director James Comey in October 2013? After all, the FBI routinely leans on Muslims to inform on their community members. Tamerlan was a Russian speaking Muslim, presumably a big asset to the Boston FBI office.

Look at this timeline and then draw your own conclusions. Recall that, by their own reluctant admission, the FBI investigated Tamerlan in the spring and summer of 2011. Just months later, his best friend and two other men were murdered in a grisly, never-to-be-solved crime. The police claim they never even talked to Tamerlan about the murders, despite the urgings of victims’ friends and families. Months after those murders, Tamerlan left the United States for Dagestan.

After the FBI investigated Tamerlan in the winter and spring of 2011, they added his name to various terror lists. One of those alert systems was designed to notify the people in Boston who investigated Tsarnaev if he should ever try to leave the country. When he bought a plane ticket to go to Dagestan in January 2012, the system worked as intended: DHS officials sent an alert to the Boston Joint Terrorism Task Force (JTTF) office. But the FBI in Boston did nothing. The  Boston JTTF did not ask officials at Logan airport to hold Tamerlan Tsarnaev for questioning. Those officials again did nothing when Tamerlan came back into the country in July 2012, even though once more, according to congressional investigators, DHS officials alerted them.

Who will hold the FBI accountable for its failures in the wake of the Marathon explosions? It hasn’t yet been congress, which insists—contra its own evidence—that more information sharing among local, state, and federal agencies will solve the problem. It has not thus far been the media, which has largely ignored a pattern of law enforcement leaks and stunning reversals.

 

And finally, will we ever learn who built the bombs that exploded at the finish line of the beloved Boston Marathon on April 15, 2013? The FBI and DOJ have both admitted in open court that they don’t know for certain who built the bombs. Despite having leaked to the press that the brothers learned how to build bombs from the English language al Qaeda magazine Inspire, the federal government repeatedly acknowledged in federal court that it cannot be sure who built the bombs, or where they were built.

Like with the 9/11 attacks, the intelligence failures leading up to the Boston attacks appear to revolve around mismanagement and incompetence, not a lack of power or resources. Nonetheless, the FBI continues to demand more freedom-destroying authorities and money, even though the post-9/11 “gloves off,” blank check approach does not protect public safety. At what point will Congress recognize what spy agency insiders have said publicly, namely that the bloated national security state harms public safety, instead of advancing it? Will the Boston Marathon bombings, allegedly executed by someone the FBI had investigated for months and possibly cultivated as an informant, be used to pressure congress to fork over more precious tax dollars to fund this ineffective, civil liberties violating ‘counterterrorism’ machine?

These questions are at the front of my mind as the substantive portion of the Tsarnaev trial nears its end. Unfortunately, unprecedented secrecy and the defense’s decision to focus only on sentencing have meant that the courtroom drama yielded few answers. When opening arguments began, about 60% of the trial had been kept secret from the public in sealed motions. The defense has barely contested the government’s evidence, and provided little of its own. Answers to the questions I’ve raised here about the FBI’s conduct in the Tsarnaev drama will likely not come from this court.

Today, during the final week of arguments in US v. Tsarnaev, my city is once again a media circus. Reporters from around the world have gathered to report on the trial, the victims, and a region that boasts it is Boston Strong, Watertown Strong, and Massachusetts Strong.

In many ways, we are strong. Despite the horrors unleashed at the race that fateful April 2013 day, the majority of my fellow Bostonians reject death by execution for the accused. Tragically, the Department of Justice, represented locally by none other than US Attorney Carmen Ortiz—infamous for her office’s controversial prosecutions of now deceased computer whiz Aaron Swartz and Muslim-American pharmacist Tarek Mehanna—is pressing for execution anyway, the people of Boston’s wishes be damned.

We here in Boston are strong enough to see that justice does not mean vengeance. We must also be strong enough to ask tough questions of the FBI and state and local police about how we got here, what went wrong, and how to fix it. When we start pulling on loose threads in the Todashev and Tsarnaev cases, uncomfortable issues emerge. Those issues should be front and center in the national conversation today, as the trial of the century comes to a close.

© 2018 ACLU of Massachusetts.