Privacy SOS

House report on marathon attacks reaches dangerous conclusions based on inaccurate information

Despite the FBI’s refusal to provide relevant information to investigators until six months after the attacks, the House Homeland Security Committee last week released its final report on the intelligence failures that predated the Boston marathon bombings. The 37-page report makes seven recommendations that mostly fall in three categories: information sharing, watch-list adjustments, and communications with the general public.

Some of these recommendations are good–especially the parts advocating that the FBI change the way it interacts with DHS watch-lists and responds to alerts. Unfortunately, many of the committee’s recommendations seem grounded in inaccurate information about where things ‘went wrong’. Still others seem at odds with the evidence presented in the report itself. There are three overarching problems with the report: it recommends expanded information sharing without explaining why this is necessary; focuses on discredited and discriminatory “radicalization” theories; and blames the public for failures that lie squarely with the government.

Information sharing: Houston, we don’t actually have a problem

First, the committee identifies information sharing lapses as a primary failure that may have led to the attacks, but presents evidence that leads to completely different conclusions. The report even acknowledges (in a footnote) that—as former BPD commissioner Ed Davis told congress—it’s possible that nothing would have happened differently had information about the FBI’s 2011 investigation of Tsarnaev been shared with more people at the Boston Police Department.   

Not to be put off by mere facts, however, the committee nonetheless “recommends greater information sharing with local law enforcement, and expanded access to the FBI’s classified Guardian system at State and local fusion centers. In particular, the Committee notes that Joint Terrorism Task Forces (JTTFs) around the country must allow for greater sharing with local police departments and other agencies that sponsor personnel to work on the task forces. The Committee also recommends that the Memoranda of Understanding between the FBI and other agencies that prevent the sharing of information outside JTTFs without FBI approval be amended to foster greater sharing.”

A footnote reads [emphasis mine]:

“Acknowledging that local law enforcement officials have indicated they may not have done anything differently had they known about the FBI’s 2011 assessment on Tamerlan Tsarnaev, in the course of this investigation the Committee has been provided evidence to demonstrate that information sharing remains a problem nonetheless.”

Unfortunately, the public isn’t privy to this other “evidence” confirming that lapses in information sharing contributed to the failures that allowed the attack to occur. In fact, the committee provides zero evidence that granting local police departments access to the FBI database would have had stopped the attacks. So why does the report identify information sharing as a ‘problem’ leading it to recommend, among other things, that fusion centers be granted expanded access to the FBI’s Guardian terrorism database?

Even worse, the evidence presented in the report suggests that the real problem was that the FBI failed to act on information it already possessed.

According to the report, the FBI investigated Tamerlan Tsarnaev between March and June of 2011, after a tip from the Russian FSB informed the US he might be a threat. This initial investigation included at least one in person interview with Tamerlan, as well as interviews with his immediate family members.

On March 22, 2011, the congressional report says, the FBI’s Boston Joint Terrorism Task Force (JTTF) —which includes representatives from the Boston Police Department, as well as Customs, Border Protection (CBP)—put Tamerlan’s name in the CBP’s ‘TECS’ database. TECS is a CBP clearinghouse for information about people traveling within and to and from the United States, and includes ‘lookout’ alerts about people the US government suspects of terrorist affiliation or extremism. The alert the Boston JTTF officer placed in the TECS system explicitly included instructions that CBP notify the Boston JTTF if and when Tsarnaev made plans to travel outside the United States, and if and when he planned to return.

But the committee’s report reveals that the Boston JTTF did nothing when CBP informed its officer that Tsarnaev was traveling to Russia. Six months later, when Tamerlan returned to the United States after spending time in Dagestan, the CBP’s TECS system sent another alert to the Boston JTTF, notifying the officer that Tamerlan would travel back to the states in three days. Again, the Boston officer did nothing.

That’s why Tsarnaev was apparently never questioned at the border, either when he was leaving for Dagestan on January 22, 2012 or when he returned six months later, on July 17, 2012. While the FBI had added him to the CBP’s terrorism database and advised that his international travel be flagged and notification sent to the FBI, when this notification was sent, the Boston JTTF did not act. This problem has nothing to do with local-federal information sharing gaps and is squarely an internal-FBI management or basic organizational and staff competency issue. The recommendation for greater information sharing therefore appears to arise out of thin air, and not the evidence the committee itself presents.

If anything, the evidence actually points to the quintessential “too much hay in the haystack” problem that has come to characterize the post-9/11 predictive policing environment. Evidence in the House report is clear: the billions of records held about us in government databases did not keep us safe. It’s odd that the House recommendations are disconnected from the evidence in the report itself. But it gets worse.

What’s truly dangerous, watching videos or murdering people?

The second major problem with the report is that it relies heavily on the discredited “radicalization” theory. The report states:

In a public statement, the Islamic Society of Boston (ISB) Cultural Center reported that Tamerlan Tsamaev attended prayers at this mosque from time to time. On multiple occasions, he engaged in shouting matches with preachers at the mosque, and was asked to leave. These disputes allegedly arose from Tamerlan accusing the preacher of being a “non-believer” and “hypocrite” who was “contaminating people’s minds,” for encouraging worshippers to celebrate American holidays. Unfortunately, this information was not shared with the authorities, and therefore did not contribute to what Federal investigators knew about Tamerlan Tsamaev until made public after the bombing.

The committee chastises the FBI for failing to look at Tamerlan after he returned from Russia, saying that even a cursory, public internet search would have revealed that he started posting radical jihadist videos, pointing to his “radicalization.”*

Here the committee appears to agree with so-called counterterrorism ‘experts’, whose work has been debunked by the Brennan Center and others, that “it is possible to detect radicalization long before people take concrete steps toward violence.” Contrary to this widely-held view, a person’s beliefs, political views, or religious practice do not correlate to their propensity to commit violence. Instead, a demonstrated predisposition to physical violence and the taking of “concrete steps” towards it are the best indications that someone may commit violence in the future.

The committee’s focus on Tamerlan’s so-called “radicalization” is unfortunate for two reasons. First, because it suggests that the committee may be opening the door to support for more law enforcement and intelligence profiling and surveillance on the basis of First Amendment protected speech, activity, and religious association. And second, because the committee’s reliance on dangerous and discriminatory tropes about “radicalization” take the place of a critical, rational examination of the disturbing facts in this particular case—facts that have to do squarely with a predisposition for extreme violence, and have little to nothing to do with religious or political beliefs.

Oddly, the committee scarcely mentions something that law enforcement should have paid considerable attention to, namely, solving a triple homicide in Waltham that occurred on the 10th anniversary of the 9/11 attacks. 

After the Boston marathon bombings, the FBI began to leak to the public information suggesting the bureau had hard evidence (including DNA and cell phone location records) implicating Tamerlan Tsarnaev in a heinous triple murder in Waltham, Massachusetts. One of the deceased in that grisly crime was Tamerlan’s best friend, Brendan Mess.

The September 11, 2011 murders in Waltham occurred just months after the FBI had closed its investigation into Tsarnaev in June of 2011. According to CNN, the Russian government notified the CIA that Tsarnaev was a threat in late September 2011, just weeks after the Waltham murders. And yet nowhere in the report does the committee drill down into local law enforcement’s failure to apprehend Tsarnaev as a murder suspect back in 2011. Since the marathon attacks, journalists have cited law enforcement and family sources claiming that Tsarnaev—the best friend of one of the victims—was never even interviewed by police after the killings.

Astoundingly, the committee—tasked with uncovering information that could help prevent another terrorist attack—almost entirely ignores the significance of the Waltham murders and law enforcement’s failure to solve them. Instead of focusing on speech and association, the committee should have investigated why no one solved those murders, why Tsarnaev was never interviewed during the investigation, and why and how the FBI almost immediately fingered Tsarnaev for the crime in the wake of the marathon bombings.

Who knew what, when? The public deserves answers to lingering questions surrounding the Waltham incident, the FBI’s knowledge of and communications with Tsarnaev between June 2011 and April 2013, and the investigations that followed the triple murder. Answers to these questions might actually help prevent another attack in the future, either by identifying weaknesses in local law enforcement homicide investigations, uncovering deadly serious incompetence inside the FBI, or both. Following the Waltham trail would yield critical information that the public—and especially the people of Boston—deserves to know.

Focusing on “radicalization” obscures the real problems that led to the attacks—chief among them the obsession with hi-tech surveillance rather than the gum-shoe work of investigating murders in our midst. Discriminatory profiling on the basis of First Amendment protected activity and association isn’t only a civil liberties problem, it’s bad law enforcement.

Suspicious activity reporting will not save us

The third major problem with the report is that the committee places the burden of uncovering terrorist associations on the public, implying that we should be more suspicious of one another, more afraid, and more eager to call police to report the slightest out-of-place hair. Again, this recommendation does not square with the evidence—either about the Tsarnaev case specifically or the role of “Suspicious Activity Reporting” more broadly.

First, the committee writes, members of the Roxbury mosque failed to notify the FBI when Tamerlan said inflammatory things and was kicked out of the building. The committee seems displeased, and implicitly chastises the mosque for not having phoned in this incident, as if Muslims should be responsible for calling the FBI every time someone says something they disagree with.

The committee’s displeasure also fails to take into account the fact that, due to the FBI’s infiltration of mosques and aggressive use of informants in Muslim communities, these communities justifiably harbor significant distrust and fear of federal authorities–they understandably wanted to distance themselves from Tsarnaev.

Rather than blame the congregants at the mosque for failing to notify law enforcement of Tamerlan’s outbursts, perhaps the committee should examine FBI policies that create an atmosphere of distrust and fear in Muslim communities, preventing the open and free flow of information between them.

Oddly, the committee also alleges that the public failed to inform the FBI of the identities of the two marathon suspects when their photos were plastered all over the news, on the evening of Thursday, April 18. That’s patently false. Numerous news reports from the days and weeks after the attacks, including those basing their reporting on FBI sources, describe former friends and colleagues of the Tsarnaevs’ calls to the FBI’s hotline. Furthermore, the committee appears to be completely disinterested in the fact that the FBI’s own Boston JTTF had conducted a three-month investigation into Tamerlan, and had met with him and his family on at least one occasion.

Why does the report (inaccurately) blame the public for failing to recognize the suspects, while giving the FBI—which itself had conducted an investigation of Tamerlan and whose agents met with him face-to-face—a free pass for its apparent failure to recognize him?

In light of what it alleges was the public’s failure to properly assist law enforcement before the attacks and during the investigation, the committee recommends expanding the Stasi 2.0 “See Something, Say Something” program, also known as “Suspicious Activity Reporting”. Neither the facts from the marathon case outlined above, nor what we know about the suspicious activity reporting program from other sources bolster this recommendation.

Numerous studies have shown that the program feeds a lot of racially motivated garbage into police databases, making them less accurate than ever. Officials have never been able to point to any instance in which information derived from this program was useful in stopping terrorism. Nonetheless, in contravention of all the relevant facts, the House committee suggests that the program be expanded in the wake of the events of April 15, 2013.

More questions than answers

The House Homeland Security Committee’s report issues troubling conclusions based on sometimes inaccurate or incomplete information. Instead of focusing on the FBI’s failure to communicate internally, or appropriately manage its caseload in the Boston office, the committee creates three straw men, and then recommends plans for attacking them. Unfortunately for the people of Boston and the United States, these recommendations will likely not have the effect of making us any safer, but they will increase religiously-motivated paranoia, provide more congressional support for programs that amount to racial and religious profiling, and further eat away at our privacy and security by expanding local law enforcement access to non-criminal FBI databases.

Finally, there’s a lot the report left out. We know little to nothing that we didn’t know before the report was issued. Most tragically, the report fails to address issues of the most serious concern, including the Waltham murder investigation that wasn’t, the extent of the FBI’s knowledge of and communications with Tamerlan Tsarnaev before the attacks, and precise information about how and when investigators in Boston first identified their suspects, including details concerning what steps the FBI took to put names to the Tsarnaevs’ faces before releasing the photographs to the public on the evening of Thursday, April 18, 2013.

The House committee set out to investigate the failures that led to the Boston marathon bombings in order to assist the FBI and other law enforcement agencies in reformulating their policies and procedures so that something like this could never happen again. But the recommendations I’ve described here don’t do that. Instead, the report uses inaccurate and incomplete findings to bolster its recommendations that the FBI and local police be given more power. More power isn’t what they need.  

*The FBI claims to have contacted the Russians about Tsarnaev upon his return from Dagestan, suggesting that they did look at him at that time, though the Russian security services deny this communication ever took place. On September 5, 2012, Tamerlan applied for US citizenship. Immigration officials confirmed to Congressman Bill Keating that they pinged the FBI to see if his application could move forward. According to those officials, the FBI advised immigration officials that Tamerlan’s “case was closed and that they could move forward with his naturalization process,” Keating says. The congressman also says that the FBI claims they asked the Russians for more information about Tamerlan in October 2012, though the Russians also deny receiving any such communication. 


© 2018 ACLU of Massachusetts.