The FBI: Accountable to No One

In the lead up to this year’s Boston Marathon, there has inevitably been an influx of coverage examining the status of the case of the Tsnarnaev brothers, more colloquially known as last year’s “Boston Marathon Bombers. One of the more interesting issues to have bubbled to the surface in the midst of all of this news coverage lack of accountability within the FBI, the agency who allegedly had information on the Tsnarnaev brothers’ extremist activities prior to the attacks. In this recent Boston Globe article, journalist Kevin Cullen highlights the transparency issue within the FBI; the FBI is not even accountable to Congress, so there are zero repercussions for the agency (aside from negative press) when they slip up and fail to thoroughly investigate a suspect, such as Tamerlan Tsarnaev. Continue reading

How do we define terrorism?

Last week’s shootings at Fort Hood have once again raised a seemingly simple question;

How do we define terrorism?

In the wake of the 2009 Fort Hood shootings, the Army and White House were hesitant to classify the tragedy as terrorism. Instead, the attack was labeled an incident of workplace violence, much to the disappointment of survivors and their advocates. In an article published earlier this week, The New York Times points out that the “t-word” was carefully avoided in reference to both Fort Hood shootings, but quickly associated with last year’s Boston Marathon bombings. Continue reading

Death Penalty Sought for Boston Marathon Bomber Tsarnaev

Yesterday afternoon, prosecutors in the Boston Marathon bombing case announced that Attorney General Eric Holder has authorized them to seek the death penalty against Dzhokhar Tsarnaev, one of two suspects believed to have carried out the bombing. Tsarnaev’s older brother Tamerlan and second suspect was killed by police during a fire fight shortly after the bombing. Continue reading

Boston Globe Releases Results of Five Month Investigation into Tsarnev Family

Earlier this week, the Boston Globe, released an in-depth article (the result of a five-month investigation) on the Boston brothers allegedly behind the attacks at the Boston Marathon this past April. The Globe calls the article a chronicle of the “greatest act of terrorism in Boston history and the deeply dysfunctional family that produced them.” Continue reading

Update: New Information on NSA Surveillance Scandal

Last week I wrote about the breaking story that the NSA has been monitoring phone records after obtaining a court order that allowed them to collect data from Verizon Wireless.  As I noted, feelings on the issue are split.  An editorial from the New York Times claimed that the Obama administration had “lost all credibility on the issue,” and that the government was clearly abusing its power.  The Washington Post took a similar stance, but called for more information on the matter before the public jumped to conclusions.  Over the weekend, more information came to light that might help us paint a better picture of what exactly the NSA’s telephone surveillance program entailed.

Most of the new information about the NSA’s PRISM program came from the whistleblower himself, Edward Snowden, and ex-CIA employee.  Snowden is currently living in Hong Kong to avoid prosecution by the federal government for leaking the story.  He provided The Guardian, the British news agency that first broke the story, with a 12-minute video interview that you can watch here.  In the interview, Snowden claimed to have had the authority to spy on any American citizen, including the President.  He claimed to have leaked the information because of some of the same concerns I voiced last week.  In particular, he said that he did not want to live in a society that secretly monitors its citizens, especially those who have done nothing wrong.

So basically what we have learned is that between the CIA and NSA, the federal government had virtually unlimited power to monitor U.S. citizens, even those in the most powerful positions.  It would appear that the government needed no probable cause of any kind to place surveillance on these people.  I think it’s safe to say that most people’s initial reaction to any instance of government surveillance is outrage.  As I said before, we are a freedom- and privacy-loving people.  But it’s also important to look at all perspectives before jumping to conclusions.

First things first, the government is not in an enviable position.  Charged with protecting over 300 million citizens, agencies like the NSA and CIA have a monumental task in detecting and thwarting terrorist attacks against the United States.  Incidents like 9/11 and the Boston Marathon attacks showed just how susceptible we can be to terrorism without implementing a proactive approach.  Because of this, there seems to be a general consensus that the government must have some type of surveillance and intelligence gathering programs.  The trouble is in deciding just how extensive and intrusive these programs should be.  If the government backs off on its surveillance programs and an attack occurs, the public will be outraged and ask why more wasn’t done to protect them.  On the other hand, in situations like this where the government is perceived as having gone too far, the public is also outraged.  The happy medium, if it exists at all, would be extremely difficult to find.  So if the public is going to be outraged regardless of which stance the government takes, it makes sense to some extent that the government would take a proactive stance that might actually prevent attacks and prevent American deaths.

Second, we have to look at what the government was searching for in the records acquired from Verizon.  So far, it appears that the NSA was not listening to individual phone calls or audio recordings.  From what we know thus far the NSA was simply analyzing data for patterns that might uncover terrorist activity within the U.S., which most would consider a legitimate government concern.  Nothing so far points to the government using the collected data for censorship purposes, or anything unrelated to preventing terrorism for that matter.

Having said that, I am not trying to convince anybody that the government did the right thing.  Determining what the right thing even is in this situation is an extremely difficult task, and there probably isn’t a concrete answer.  There is certainly a chance that the government may abuse its power any time it monitors its citizens, but we still don’t have all the facts to make a determination on whether or not they were.  And, especially at a time when confidence in our government is so low, public outcry against the NSA is understandable and maybe warranted.  Even so, when we look at this situation we have to keep it in perspective.  One of the government’s many jobs, and more specifically the NSA’s job, it to protect the public from terrorist attacks, and so far it looks like that is what the PRISM program is intended to do.  More facts are sure to come to light in the following days and weeks, and we might want to reserve judgment until then.

Chris Whitten, Research Fellow
Center for Policy and Research

Is the FBI more dangerous to civil liberties when it REFUSES to record?

In an opinion piece in the Boston Globe, lawyer Harvey Silverglate claims that the FBI follows a policy of not recording interviews with suspects and witnesses in order to be able to put words in their mouth. He points specifically to the case of Robel Phillipos, who was recently arrested and charged with making materially false statements during the course of the investigation of Dzhokhar Tsarnaev, the suspect in the Boston bombing.

Mr. Silverglate has a point. Without electronic recording, the FBI agent can sit in the interview room, taking whatever notes he pleases, and then later attribute those statements to the interviewee. The interviewee, in disputing the statements, risks prosecution for the same crime now being alleged against Robel Phillipos. Mr. Silverglate apparently thinks that creating this opportunity is the reason for the FBI’s policy.

But there are a couple of problems with this theory. First, to do this would be a crime–the same crime that Robel Phillipos is charge with in fact, along with a couple of others. Second, the FBI do not want to soil their own evidence. Even apart from the implications for admissibility or weight, if it becomes known that an agent is falsifying witness statements, false witness statements only harm the investigation by adding incorrect information into an already complex picture.

Last, but not least, Mr Silverglate doesn’t address the one feature that may help to level the playing field between the FBI and the witness: the jury. A witness statement is not at all like a piece of physical evidence. The jury does not simply note that it exists (theoretically, the jury doesn’t even stop here for physical evidence). Instead, when confronted with the claimed falsification of the statement, the jury will decide which of the two parties they believe is telling the truth. Ignoring this aspect severely undercuts Mr. Silverglate’s argument.

However, in the end, his point still stands. Why, with the ubiquity of hand-held recording devices (like the on in your pocket or purse that rings from time to time), doesn’t the FBI record all interviews as a matter of course. If for some reason a recorder cannot be found, they can always revert back to their paper-only method, and explain to the jury why they had to do so. But it would effectively remove the possibility of interviewees claiming that they were misquoted or that their statements were falsified. And in this respect Mr. Silverglate is correct. This should be a non-issue.

Paul W. Taylor, Senior Fellow
Center for Policy and Research

Speedy trial chickens may be coming home to roost

In a previous post, I mentioned the possibility of speedy trial problems arising if terrorism suspects are treated differently than other violent criminals. And we are now seeing signs that this may be true.

The defense for Guantanamo Bay prisoner Ahmed Gilani, who is so far the only GTMO detainee to be tried in Federal court rather than in a Military Tribunal, is now seeking to have his conviction overturned due to his long detention prior to trial (see also, here). Gilani was sentenced to life in prison for his role in the 1998 embassy attacks in Tanzania and Kenya. After his capture in Pakistan in 2004, he was held in incommunicado by the CIA for two years, then by the military at Guantanamo Bay, Cuba until 2009, when the Obama Administration transferred him to civilian custody for trial.

But I suspect that while this delay is truly significant, and under normal circumstances would be a clear violation of the constitutional requirement for a speedy trial, I think there is a clear difference between this case and the Boston bombing case. Where Tsarnaev was a civilian captured in the US with no apparent ties to a foreign enemy entity (state-based, state-sponsored, or otherwise), Gilani was captured on foreign soil in the course of a foreign war authorized by Congress. As such, the US was authorized to hold Gilani without charge as a suspected enemy combatant, regardless of his activities in 1998.

Where one might decide to draw the line between these two poles, with arrest under civilian authority on the one end, and capture under foreign relations/law of war authority on the other, I don’t exactly know. However, it is clear that these two cases fall on opposite sides of that divide. So even if Gilani’s speedy trial appeal is defeated, as I suspect it will, that does not limit the concern that such an appeal could lead to the release of convicted terrorists if pre-trial detention is prolonged for intelligence-gathering purposes. Such concerns are very real, and should not be taken lightly.

Paul W. Taylor, Senior Fellow
Center for Policy and Research

David Rothkopf on American responses to terrorism: Not All Terror is Created Equal

Shortly after the Boston bombings, Foreign Policy’s David Rothkopf posted a very insightful article on CNN.com, which is very well worth reading. In it he compares recent terror events, such as the Boston bombings and the ricin letters sent to the President and others, with the non-terrorist events like gun violence.

“Terror and terrorists are real and their stories are compelling, but we ought to remember that by far the biggest threats we face come from elsewhere—from what might be corporate negligence or greed; from natural disasters or the heedless abuse of the environment; from people who find it far too easy to get their hands on guns or from leaders who twist their interpretation of the Constitution to overreact to one threat even while ignoring and exacerbating another.”

“In short,” he asks,  “how much damage are we doing to ourselves in our efforts to stay safe or pursue justice?”

Paul W. Taylor, Senior Fellow
Center for Policy & Research

 

Some problems with the charges filed against Boston Marathon bombing suspect

Well, it seems that Tsarnaev has now been read his rights.

The FBI filed charges against the surviving suspect in the Boston Marathon bombing, Dzhokhar Tsarnaev, alleging “using and conspiring to use a weapon of mass destruction.” But Tim Noah has pointed out an interesting conundrum in his article on FP.com: How do relatively small improvised explosive devices (IEDs) amount to weapons of mass destruction?

18 USC § 2332a defines “weapon of mass destruction” as:

“(A) any destructive device as defined in section 921 of this title;

(B) any weapon that is designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors;

(C) any weapon involving a biological agent, toxin, or vector (as those terms are defined in section 178 of this title); or

(D) any weapon that is designed to release radiation or radioactivity at a level dangerous to human life.”

Since the pressure-cooker bombs made by the brothers did not (so far as we know) use  any toxins, poisons, biological agents, or radioactive elements, then the definition of WMD in operation in this case must be that of a “destructive device” which then allows in “any explosive bomb.” Firecrackers, too, apparently (Section 921 defines “Attorney General,” but not “bomb”).

But even setting aside the idiocy of language of the statute, it’s ridiculous to call the low-powered bombs  in Boston “weapons of mass destruction,” even if they did wound scores of innocent civilians. After all, as Tim Noah points out,

“If any old bomb can be called a WMD, then Saddam most definitely had WMDs before the United States invaded Iraq 10 years ago. And if an IED is a WMD, then Iraq actually ended up with more WMDs after the U.S. invasion than before (and isn’t entirely rid of them yet).”

For the sake of clarity, I do not advocate “going easy” on Tsarnaev. He should be prosecuted to the full extent of the law, which is what the federal government appears to be doing. But neither do I support equating the employment of ordinary bombs and IEDs with true weapons of mass destruction.

Paul W. Taylor, Senior Fellow
Center for Policy and Research

Fed’s handling of Tsarnaev draws criticism (and praise)

After capturing the second Boston Marathon bombing suspect on Friday, the FBI decided to invoke the public safety exception to the Miranda requirement. This decision has generated much debate about the rights that should be afforded to terrorism suspects, whether a distinction should be drawn between foreign and domestic terrorist suspects, and who qualifies as which.

According to the ACLU, while authorities should be able to question Tsarnaev about imminent threats, using the public safety exception “to create the case against the suspect” would be “wholly inappropriate and unconstitutional.”  In this they are absolutely correct. This exception was created not as an investigatory tool, but as an excuse for officers who, under pressing circumstances and in the heat of the moment, ask a question of a suspect, such as “where is the bomb?” or “which way did your accomplice run?” It was a failsafe to allow officers who ask questions with the sole purpose of ensuring public safety before read the suspect their rights to still be able to introduce the suspects responses in court. It was not intended to create a tactic by which police could intentionally delay mirandizing suspects.

Relatedly,  several Republican politicians have argued that Tsarnaev should be officially labelled an “enemy combatant” in order to remove procedural hurdles to national security investigations. For example, as an enemy combatant, Tsarnaev would not be entitled to the a lawyer during interrogation. These lawmakers hope that by removing the Miranda warning and its attendant rights, the authorities may be  better able to probe possible links to al Qaeda or other terrorist groups.

Of course, there is as yet no indication that there are any such links, and if there are, the 4th and 5th Amendments have generally not gotten in the way of finding out. For example, “Millennium Bomber”Ahmed Ressam gave up all of his contacts shortly after being caught and interrogated by the FBI under full Constitutional protection. In fact, facing 130 years in prison, he sang like a bird for 4 years while his sentencing was put on hold. (The uber-liberal Ninth Circuit has since ruled that Ressam’s 22-year sentence was too lenient, and placed an effective floor of 65 year on the sentence.)

But this has not stopped some Republican lawmakers from claiming the need to apply extraordinary measures to “foreign” terrorists. However, they seem to have hit a snag here, since Tsarnaev is a naturalized US citizen, not that they let this get in the way. In fact, Senator Lindsey Graham went so far as to advocate using racial and religious profiling to to determine if Constitutional protections should apply:

“You can’t hold every person who commits a terrorist attack as an enemy combatant, I agree with that. But you have a right, with his radical Islamist ties and the fact that Chechens are all over the world fighting with Al Qaeda — I think you have a reasonable belief to go down that road, and it would be a big mistake not to go down that road. If we didn’t hold him for intelligence-gathering purposes, that would be unconscionable.”

So, according to Senator Graham. if they are Chechen and/or Muslim, screw their rights.

Discrimination aside, Sen. Graham seems to have forgotten that we don’t need to hold Tsarnaev for intelligence gathering purposes, since he’s already being held for criminal prosecution. This gives the FBI and other Federal investigators ample access to him for intelligence gathering purposes.

Indeed, holding Tsarnaev as an enemy combatant could jeopardize the government’s ability to try him, since Military Commissions have no jurisdiction over US citizens, and the latter trying him in civilian courts could trigger problems with speedy trial protections and admissibility of the evidence obtained without 4th and 5th Amendment protections.

For additional commentary on the Tsarnaev case, the following were collected by Fordham’s Center on National Security:

New York Times: “Mr. Graham’s reckless statement makes a mockery of the superb civilian police work that led to the suspect’s capture….Fortunately the Obama administration has ignored the posturing and declared that Mr. Tsarnaev, like all citizens and even alien terrorists captured on American soil, will be tried in the federal courts.”

Wall Street Journal: “The flap over reading [Tsarnaev] his Miranda rights is a largely irrelevant distraction. … The important security issue isn’t convicting Dzhokhar but finding out what he knows that might prevent a future attack or break up a terror network. This is where naming him an enemy combatant would be useful.”

New Yorker: Does the public exception to the Miranda “grant the police a limited ability to ask where a bomb is or which way an accomplice ran, and use the answers in court? Or is it a free forty-eight-hour questioning coupon the government gets for calling someone a terrorist?”

Paul W. Taylor, Senior Fellow
Center for Policy & Research