Privacy SOS

The murder investigation that wasn’t, and our slippery surveillance state

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Above: a news report from September 12, 2011, the day after three men were slain in a Waltham, Massachusetts apartment.

In the immediate aftermath of the Marathon bombings, Boston Police Commissioner Ed Davis told the public that his police would soon put more surveillance cameras on the streets. He even went so far as to suggest that his officers would deploy drones at the 2014 marathon. It wasn’t a new response.

When terrorism strikes, police often say they need new surveillance and monitoring technologies, and expansive powers. It doesn’t matter What Went Wrong — if, like with 9/11, the government actually possessed but mismanaged information investigators could have used to arrest the attack before it struck. Even if the failure was human, which it so often is, the response is nearly always the same: the state needs more power, more money, and more technology to ‘stop terrorism before it hits’.

Today’s New York Times report on the investigation of a triple murder in Waltham, Massachusetts boldly undercuts those assumptions. While the police are always claiming that they need to create a bigger haystack, today's NYT story shows that what the police really need is to become better at finding needles. 

A murder in Waltham, a missed opportunity

A little background: On September 11, 2011, ten years to the day after the 9/11 attacks, three friends of Tamerlan Tsarnaev were murdered in a Boston suburb apartment in a grisly and apparently ritualistic fashion: their throats cut, their bodies placed in separate rooms on their stomachs with their heads tilted to the side, marijuana sprinkled on their corpses. Five thousand dollars cash and large quantities of marijuana were found in the home. 

The Times today reports that “emerging evidence against [Tamerlan Tsarnaev]…has led some law enforcement authorities to contend that if the local murder investigation had been more vigorous it could have led to his apprehension well before the bombings left 3 dead and more than 260 wounded — in short, that the bombings might never have happened.

Tamerlan Tsarnaev, 26, was, by many accounts, one of Mr. Mess’s closest friends and a frequent visitor to the Harding Avenue apartment. But three law enforcement officials familiar with the case said that Massachusetts state troopers and the Waltham police, working under the auspices of the Middlesex County District Attorney’s Office, never questioned him — either as a potential suspect or as someone who could provide valuable information about the victims.

Several friends said in recent interviews that they told the police about Mr. Tsarnaev when they were questioned. “The police wanted to know who all the friends were in the group, and I told them about Tamerlan,” said one close friend of Mr. Mess, adding that at least three other friends gave the authorities Mr. Tsarnaev’s name, as well.

When Mr. Tsarnaev did not show up at either Mr. Mess’s funeral or memorial service, the friend became uneasy.

“We did mention Tamerlan again to the police after he was not there for Brendan’s services,” said the friend, who spoke on the condition of anonymity because of the notoriety of the case. “I felt that the police were not really looking in the right places.”

The story goes on to cite numerous friends and family members of the murder victims who say that they encouraged investigators to look at Tamerlan as a suspect way back in September 2011. Yet the authorities now tell the Times that not only did they never consider the elder Tsarnaev a suspect in the Waltham murders, but they never even interviewed him about the death of his close friend, Brendan Mess. 

That omission is odd on its face, regardless of whether or not what the families and friends now tell the Times is an accurate reflection of what they said years ago, in the wake of the tragic murders. For some reason, the Middlesex District Attorney’s office and the Massachusetts State Police troopers assigned to the murder investigation appear to have dropped the ball, not even bothering to interview the coach at Wai Kru gym, where Brendan Mess — and Tamerlan Tsarnaev — regularly trained. 

Only after the Boston Marathon attack did investigators begin to look at Tamerlan as a suspect in the murders of one of his best friends and two of his associates — although we don’t know why. Only after April 15, 2013 did they start piecing together evidence from the scene of that crime, evidence that they must have already had back in 2011 when the crime scene was fresh. 

The authorities tell the newspaper that they had no insight into a possible Tamerlan connection back in 2011, and didn’t even interview him. But that doesn’t square with what a friend of both the late Mess and Tsarnaev told Rosie Gray at Buzzfeed. He said that, “following the murder, he was questioned by detectives who told him Tsarnaev may have been with Mess either the day of or the night before.”

Years later, however, we hear something utterly different: the Times reports that only after the bombings did investigators tell a friend of Mess’ that “they have info that may have placed Tam[erlan] with Brendan the day before or night of the killings.”

Whether investigators suspected back in 2011 that Tamerlan was with Brendan Mess the night he was killed or not, it is hard to imagine why detectives and prosecutors wouldn’t have sought to interview the best friend of one of the victims, a man who disappeared from their social circle immediately after the killing and didn’t even show up at the funeral. 

It might be that law enforcement (a team that included State Police officers) simply didn’t have the chops for the investigation, or it could be that, for whatever reason, they simply didn’t try very hard. 

The Times reports:

Mr. Weissman’s mother, Bellie Hacker, recalled meeting with investigators about 10 days after the murders, describing them as “honest in their assessments, but passive and waiting.”

“The police told us, ‘This is what we think may happen.’ That in the future, someone with information might come forward and admit it and seek a plea deal,” Ms. Hacker said.

This is difficult to swallow, and a damning assessment of the authorities. When in the recorded history of human affairs has anyone ever “come forward” to “admit” that they brutally murdered three people? Why would anyone “seek a plea deal” if they didn’t have any reason to believe that the police were onto them? Is this how murder investigations typically unfold, with the police simply waiting around until someone comes forward to confess?

What will keep us safe, solving murders or yet more surveillance?

We have perfect vision in hindsight, but there are sufficient unanswered questions about the lack of vigor with which investigators pursued the gruesome triple murder in Waltham in 2011 to raise another set of vital questions, issues that strike at the heart of ongoing debates about surveillance powers in post-9/11 America: What do we really need to do to keep our streets safe? Is more technology and surveillance the answer, like the government says?

Yesterday, Boston Police Department Commissioner Ed Davis spoke before the Senate Homeland Security Committee in Washington, where he highlighted the DHS Urban Areas Security Initiative (UASI) funding program as a critical component of terrorism readiness efforts in the Metropolitan Boston region. That funding program has doled out hundreds of millions of dollars to major cities nationwide, providing funds for surveillance cameras and other monitoring equipment, and for the creation and sustainment of so-called ‘fusion centers’ — including our very own, the Boston Regional Intelligence Center (BRIC).

Davis told congress that DHS’ efforts to smooth out wrinkles among relationships between state, local and federal law enforcement in the decade plus after 9/11 resulted in the capture of both bombing suspects “within 102 hours of the time of the initial explosions. This success was the direct result of dedicated training, relationships already in place, an engaged and informed public, and an unprecedented level of coordination, cooperation and information sharing on the line by local, state, and federal agencies,” he said. 

The commissioner praised the BRIC, the local fusion center that was established with DHS funds through the UASI program, as “critical to the Department’s daily decision-making, intelligence gathering, deployment and information flow, coordination and communication with law enforcement and other first responders. Funding also provides important technology that would not be possible without UASI funding…”

But what role did the fusion center actually play in the still-unfolding Tsarnaev tragedy? You might think that a spectacular triple murder on the tenth anniversary of 9/11 would raise red flags at the so-called “All Crimes, All Hazards” anti-terrorism center, particularly given that the FBI had already investigated Tsarnaev, but it clearly didn’t. On the other hand, one thing we know for sure is that detectives and intelligence analysts were busy spying on Occupy Boston activists at Dewey Square in the fall of 2011, and reporting to the FBI about the protests in the city. 

Could the Boston Marathon attack have been prevented if the Middlesex District Attorney’s office, the Massachusetts State Police, and the local fusion centers pursued a thorough investigation of the Waltham murders and caught the man they now suspect killed those three people? It seems almost certain. 

Instead of working from the assumption that our police and intelligence agencies can predict the future if they have all of our private information and fancy computer software, they should work with the actual crimes they’re confronted with in real life. Instead of mining our telephone and internet records on a mass scale, or monitoring political protests, law enforcement should return to the golden rule of American justice: probable cause based investigations.

The probable cause standard protects our personal privacy from unwarranted government intrusion. It also protects public safety by focusing limited law enforcement resources and energies against people suspected of actual criminal activity — and keeps police away from spying on dissidents. That could have made all the difference in Boston.

Serious investigative police work would benefit public safety going forward, too. The Boston Police Department’s murder clearance rate is a measly 43%, and bodies keep dropping — particularly in poor communities of color. It’s even worse in Chicago, where the police solved only 1 out of 4 murders in 2012. It seems as if you can literally get away with murder in America.

For police and investigators, it likely isn’t as sexy as the high-technology-enabled surveillance state, and it’s probably a lot more difficult, but regular old police work is effective. Had police and prosecutors seriously investigated the Waltham triple murder, instead of apparently just waiting around for someone to 'fess up to it, they could have spared my city a lot of pain.

The next time the police or the FBI say that they need a new biometrics monitoring program, better surveillance technologies, or new spying powers, remember that.

Solving murders is hard work, and it takes time to learn how to pursue difficult investigations. Data mining and face recognition programs that utterly destroy our privacy and anonymity aren’t just bad privacy policy, they are glittery toys that can easily detract from the meat and potatoes of real investigative work: critical thought, patience, attention to detail, human intelligence, and the learned detective’s ability to analyze complex human behaviors and events. 

We now know that the NSA’s massive metadata surveillance program was fully operational in 2011 when these murders took place, as well as in 2013, when the Tsarnaevs allegedly blew up the Boston Marathon. A lot of good it did the people of Boston. 

Instead of spending so much money and effort trying to ‘predict’ crimes and monitor people based on debunked ‘terrorist profiles,’ our law enforcement agencies should invest resources in figuring out how actual dead bodies got cold. 

© 2021 ACLU of Massachusetts.