Privacy SOS

FBI blames Russia for Marathon bombings, hints at expansive new wiretap powers

Earlier this week, the New York Times published a story based on administration leaks about a yet to be published Inspector General report on the intelligence failures predating the Boston Marathon bombings. The Times headline screams: "Russia Didn’t Share All Details on Boston Bombing Suspect, Report Says". A quote from an anonymous "senior American official briefed on the review" sums up the gist of the piece: "[The IG] found that the Russians did not provide all the information that they had on [Tsarnaev] back then, and based on everything that was available the F.B.I. did all that it could," the anonymous official says.

After the Marathon bombings, Russia gave the FBI wiretapped recordings of Tsarnaev speaking about violence. The FBI now says that everything would have been different had they accessed those recordings prior to April 2013. As a result, the FBI wants the power to wiretap as freely as the Russians. The NYT reports that an internal FBI review of the Marathon attacks found

that its agents had been restrained from conducting a more extensive investigation because of federal laws and Justice Department guidelines that prevent them from using surveillance tools like wiretapping in investigations like those conducted on Mr. Tsarnaev before the bombings.

In other words, the FBI implies it needs to be able to wiretap people during the assessment stage of investigations, where no criminal predicate let alone probable cause is required. If that were to happen, it would mean the FBI could wiretap you at any time, even if it had no evidence to show you were involved in criminal or terrorist activity.

In short, according to NYT account of the IG report and the internal FBI review: The Boston Marathon bombing is Russia's fault, and the government needs expanded wiretapping powers. These are serious charges, with serious implications for our rights.

Let's therefore examine the known facts carefully, to see if this narrative makes any sense.

The FBI acknowledges that it investigated Tamerlan Tsarnaev for at least three months in 2011, interviewing him and his family members after receiving a tip from the Russian government that he was a threat. Lawyers for Tamerlan’s younger brother say that FBI agents repeatedly met with Tamerlan in person, and on at least one occasion asked him to become an FBI informant.

Shortly after the FBI closed its investigation into Tsarnaev in June 2011, Tamerlan's best friend and two other young men were gruesomely murdered in Waltham, Massachusetts on the tenth anniversary of the 9/11 attacks. (Years later, about a week after the bombings, the FBI would say they suddenly had forensic evidence linking Tsarnaev to those unsolved murders.) According to the Russian government, its FSB security agency again alerted the US government to Tsarnaev's dangerousness in late September 2011, months after the FBI had closed its investigation into him, and just weeks after the brutal Waltham slayings.

In January 2012, Tamerlan went to Dagestan, where he stayed for six months.

According to the House Homeland Security Committee's report, the FBI claims that in August 2012, weeks after Tsarnaev returned to the US from Dagestan, its officials asked Russia for more information about Tamerlan. Russia denies receiving this request.

On September 5, 2012, Tamerlan Tsarnaev applied for US citizenship. According to Representative Bill Keating, who sits on the House Homeland Security Committee and participated in the committee's investigation of the attacks, immigration officials noted that Tsarnaev's name was flagged as a possible terrorism suspect. When they alerted the FBI that he had applied for citizenship, however, they were told, according to Keating, that "his case was closed and that they could move forward with his naturalization process." One month later in October 2012, according to former FBI director Bob Mueller, the FBI again asked Russia for information about Tsarnaev. Russia also claims this request never took place.

In sum: The FBI investigated Tsarneav for at least three months in 2011, allegedly pressure him to become an informant, and repeatedly asked Russia for more information about him upon his return from Dagestan in the summer and fall of 2012.

But despite the FBI’s professed concern about Tsarnaev, when immigration officials asked in September 2012 if his application should move forward, the FBI said yes. And stranger still, when Customs officials notified the Boston JTTF of Tamerlan's travel plans before he left the country in January 2012 and returned six months later, the FBI did not act. If officials really wanted more information about Tamerlan from Russia, and followed up with the Russian government repeatedly towards that end, why wouldn’t it have seized an opportunity to interrogate him about his travel to Dagestan, when it twice had the chance?

As described above, details of an Inspector General report leaked to the New York Times this week allege that, had the FBI been granted access to Russian wiretaps of Tsarnaev’s phone calls, the Bureau would have more seriously investigated him, possibly averting the attacks. On this basis, the FBI argues that it needs the power to wiretap people during assessments, a level of investigation that requires no criminal predicate. But as journalist Susan Zalkind observes, Tsarnaev was during that very time period posting violent videos on his public YouTube account. And when FBI officials had the opportunity to ask Tsarnaev questions about his travels to Dagestan—where congressional investigators believe he may have spent time with Chechen rebels—they did not.

The facts, therefore, challenge the proposition that Russia—and not the FBI—is to blame for the bombings. But it gets stranger, still.

Despite the fact that the FBI now says that it was concerned enough about Tsarnaev to repeatedly ask Russia for information about him, two days after the Marathon attacks, it appears to have forgotten who he was. Numerous officials have told the press that they first identified from video surveillance still photographs of the suspects early on Wednesday morning. If we are to believe officials' account of events, then, no one in the FBI or Boston JTTF remembered Tamerlan’s face.

The following day, on Thursday, the FBI produced photos of the Tsarnaev brothers to the public, asking for help in identifying them. The release of the photos sparked what officials describe as a chaotic and deadly series of events: the murder of a police officer at MIT, a carjacking, and ultimately a shoot-out in a quiet residential neighborhood in Watertown. The entire metropolitan region was shuttered for a day while police hunted for the remaining suspect. Militarized police turned the town into a temporary war zone. It was a traumatic night and day for everyone in the city.

If the Boston JTTF had investigated Tsarnaev for three months, interviewed him on multiple occasions, allegedly approached him to become an informant, and repeatedly asked Russia for more information about him, how could officials suddenly forget who he was, after he had apparently blown up the Boston Marathon? Did agents not circulate the photos inside law enforcement before posting them on the internet for the world—and the suspects themselves—to see?

Nearly a year later, the sequence of events as relayed by the authorities raises more questions than provides answers. In light of all the public evidence, blaming the Russians for the attacks, and then demanding more power as a result of one's own failure, doesn't add up.

Is it possible that the FBI conducts so many investigations that its agents simply can’t remember whom they’ve interviewed and monitored, even when those investigations are drawn out over years, as the FBI says its inquiry into Tsarnaev was? An ACLU lawsuit filed yesterday in federal court may get us closer to an answer to that critical question, among others. Stay tuned.

In the meantime, we must not allow the FBI to expand its already broad powers, based on conclusions stemming from inaccurate information and a dishonest narrative about the events leading up to the Marathon. Our privacy, our freedom, and our security are all at stake.

© 2019 ACLU of Massachusetts.