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Shocking new information in Tsarnaev case casts doubt on official story about the killing of Ibragim Todashev

In a stunning reversal, federal prosecutors claim in an October 2014 court filing that they have “no evidence” to suggest Tamerlan Tsarnaev “participated in” a triple murder in Waltham, Massachusetts in 2011. Officials had previously leaked to the press assertions precisely contrary to the new declaration. The federal government’s new claim comes in response to motions filed by Dzhokhar Tsarnaev’s attorneys seeking information from the government about Tamerlan’s participation in the murders. Documents confirming Tamerlan’s involvement in the 2011 murders would help the defense show that the elder Tsarnaev intimidated his younger brother.

By claiming to possess “no evidence” that Tamerlan was involved in the slayings, the DOJ might very well succeed in its goal to keep secret records related to the Waltham investigation and sought by the defense. But the reversal also comes at a cost: the federal government’s credibility. The back and forth—first Tamerlan did it, now he didn’t—raises troubling questions about the accuracy of official leaks pertaining to not just the murders, but also the circumstances surrounding the death of a Chechen immigrant at the FBI’s hands in May 2013. It also shines a spotlight on the media’s now common practice of granting federal officials anonymity to discuss important events, and shows how that practice enables the propagation of unreliable information meant to shape narratives favorable to the government. Those narratives, while perhaps helpful to federal agencies, are not always accurate.

Some background is required.

A few weeks after the April 15, 2013 Boston marathon bombings, ABC News published a shocking report linking bombing suspect Tamerlan Tsarnaev and his little brother to an unsolved, grisly triple murder in 2011 in Waltham. Local reporter Michele McPhee, whose publication of anonymous law enforcement leaks about the case is the subject of controversy in the Dzhokhar Tsarnaev trial, produced the scoop:

Massachusetts investigators have developed what they call "mounting evidence," bolstered by "forensic hits," that points to the possible involvement of both Tamerlan Tsarnaev and his younger brother Dzhokhar in a gruesome, unsolved triple homicide in 2011, law enforcement officials told ABC News.

Not only was there possible DNA evidence linking the Tsarnaevs to the crime scene, ABC News reported. Officials also said they possessed cell phone location records tying the brothers to the crime.

[L]aw enforcement officials tell ABC News that some crime scene forensic evidence provided a match to the two Tsarnaev brothers. The officials also said records of cell phones used by the Tsarnaevs appear[] to put them in the area of the murders on that date. Several officials confirmed the new findings but declined to be identified because they are not authorized to comment on the ongoing investigation.

“Several officials confirmed” these “findings” to McPhee in early May 2013, weeks after the marathon bombings shook the city and the nation. The revelation about Tamerlan’s involvement with the triple murder in 2011 was stunning. And there would be further shockers just around the corner.

Just a little over a week after McPhee’s ABC News piece was published on May 10, the country woke up to yet more startling news: Overnight, an FBI agent from the Boston office and two Massachusetts State Police officials had interrogated and shot dead an alleged associate of Tamerlan Tsarnaev in his Orlando, Florida apartment. Ibragim Todashev, “federal officials” said, was under investigation for participating in the 2011 Waltham murders with the elder Tsarnaev.

The Orlando Sentinel:

Todashev, a 27-year-old mixed-martial-arts fighter, was being questioned about a 2011 triple slaying in Waltham, Mass., federal-law-enforcement sources told the Tribune Washington bureau.

Federal officials think he and Tamerlan Tsarnaev, one of the suspected Boston bombers, may have had a role in cutting the throats of three men and sprinkling marijuana over their bodies. One of the three Waltham victims, Brendan H. Mess, was described as a close friend of Tsarnaev's.

Later, government reports would claim that FBI agent Aaron McFarlane and Massachusetts State Troopers Curtis Cinelli and Joel Gagne (whose names were redacted from official documents but extracted by independent researchers) went down to Florida in order to interrogate Todashev about his possible links to the Waltham murders. Those official reports claim that Todashev was in the process of signing a confession implicating himself and Tamerlan Tsarnaev in the triple murder when he suddenly attacked one of the troopers, provoking FBI agent McFarlane to shoot him dead. Journalist Susan Zalkind later obtained an unredacted copy of this supposed “confession.” It is stained with blood and appears to read:

My name is IBRAGIM TODASHEV. I wanna tell the story about the robbery
me and Tam did in Waltham in September of 2011. That was [?] by Tamerlan. [?] [?] he [?] to me to rob the drug dealers. We went to their house we got in there and Tam had a gun he pointed it [?] the guy that
opened the door for us [?] we went upstairs into the house
[?] 3 guys in there [?] we put them on the ground and then we [?] [?] taped their hands up

After killing Todashev and claiming that he was in the middle of confessing to a triple murder when he was shot, federal officials proceeded to round up and arrest or deport a number of his friends, including his girlfriend. In later interviews, his girlfriend denied that Todashev had anything to do with the 2011 murders. Over a year later, in October 2014, one of the few people who knew Todashev and remains in the United States, his former mother in law, appeared outside the Boston federal courthouse where the Tsarnaev trial was in session. She held a sign with a photograph of Todashev on it, reading “I am dead because I knew Tsarnaevs. I knew the truth.”

The federal government appears to want it both ways, leaking to the press over and over again that Tamerlan Tsarnaev was involved in the Waltham murders, and then, when it suits them, turning around in court and saying the exact opposite. Thania DiazClevenger, Civil Rights Director for Florida’s chapter of the Council on American Islamic Relations (CAIR), is incredulous, raising important questions:

The recent revelation that the government has no evidence linking Tsarnaev to the Waltham murders reinforces that the government account regarding the circumstances surrounding the killing of Ibragim Todashev cannot be trusted. It contradicts the original reason given for the questioning of Ibragim. It raises the question of why Ibragim Todashev was questioned by the FBI to begin with and whether the alleged confession by Ibragim was coerced or a pretext used to harm Ibragim's reputation in order to justify the FBI shooting.

CAIR-Florida says it is preparing legal action “to seek justice for the family of Ibragim Todashev.” An ongoing ACLU of Massachusetts lawsuit against US Attorney Carmen Ortiz aims to produce information from the DOJ about Ibrahim Todashev, including copies of portions of his interrogation that Massachusetts State Police officials reportedly video- and audiotaped.

But even if we never learn anything more about what happened in Orlando in May 2013, the US Attorney’s recent court filing makes one thing clear: Either agents of the federal government misstated the facts in leaks to the public, or the US Attorney is now misstating the facts to a federal judge. It’s difficult to imagine how the anonymous, official leaks to the press about Tamerlan Tsarnaev’s alleged involvement in the Waltham murders could have been true if Ortiz’ recent claim—that the feds have “no evidence” implicating Tsarnaev—is also true. First the feds told reporters they had “mounting,” “forensic” evidence, including cell phone location records, tying Tamerlan to those killings. Now the feds say they have nothing.

It’s not the first time the prosecution against Tsarnaev has issued a bombshell in court, directly contradicting things law enforcement had leaked to the press and that became the given narrative of events. After the bombings, officials told journalists that the brothers built the bombs inside Tamerlan’s Cambridge apartment. The anonymous law enforcement officials who leaked these claims even provided specific details about that supposed evidence. The following year, Carmen Ortiz would file a brief in the Tsarnaev case asserting the exact opposite: The feds are sure the bombs were not built at the Cambridge apartment, the motion says.

The public is getting taken for a ride. Perhaps instead of aggressively prosecuting stoner teenagers who the FBI itself admits had nothing to do with the marathon bombings, federal law enforcement should get its house in order. Selling the public a simple narrative and then turning around and demolishing it in court provides the makings for a good screenplay about FBI and DOJ incompetence. But it’s not how the federal government should be conducting itself in the nation’s highest profile terrorism investigation since 9/11. The victims of the Waltham murders and the Boston marathon bombings—and the public—deserve the truth. Based off the federal government’s own statements alone, it’s impossible to know what that is.

© 2016 ACLU of Massachusetts.