The FBI is taking a lot of heat in the press and from Congress for how it handled its 2011 investigation of Tamerlan Tsarnaev, which was opened after Russian officials fingered him as an extremist. Critics have charged that the bureau closed its inquiry without continuing surveillance after it failed to find any connection to terrorism. And, on Wednesday, Senator Richard Burr went a step further, alleging that the bureau had ignored follow-on requests from Russian officials. The suggestion, obviously, is that the bureau brushed aside clear warnings that could have prevented the Boston Marathon bombing.
More...
But it didn't. Individuals familiar with the FBI investigation have confirmed to me that Russia made no official requests to the bureau beyond its original request. These individuals also said that Russian officials did not respond to the FBI's requests for additional information and noted that such behavior is not unusual: Russia's intelligence service, the FSB, has often failed to proactively aid the FBI's counterterrorism efforts -- it has been more concerned with appearing cooperative than with providing actual assistance.
What's more, it is clear that the majority of the FBI's critics simply don't understand how terrorism investigations work. Despite the fact that the bureau's responsibilities were significantly expanded after the September 11 attacks, there are very tight restrictions that govern the investigation on U.S. soil of potential national security threats.
The FBI's procedures for investigating terrorism today are a legacy of the Church Committee investigations into its counterintelligence program, which targeted domestic radicals in the 1960s and 1970s. The committee found the bureau had engaged in widespread unauthorized surveillance, wiretapping, and break-ins, and had illegally opened U.S. mail. Those findings spawned rules known collectively as the Attorney General's Guidelines (AGG) for General Crimes and the AGG for National Security Investigations, which established standards for opening and closing investigations and restricted what sort of investigative tools the FBI could use for each. No longer would the FBI be able to indefinitely investigate an individual without probable cause to believe that a federal crime had been committed or that a national security threat existed.
These guidelines worked fairly well until the investigation into Zacarias Moussaoui, believed to have been the 9/11 plot's 20th hijacker. Initially arrested for immigration violations a month before the attacks, the FBI suspected Moussaoui was involved in a terrorism conspiracy based on his attempt to learn how to fly a 747 aircraft -- even though he had no prior flight experience. The bureau's Minnesota office wanted to search his residence and computer, but officials at FBI headquarters and the Department of Justice decided that the AGG for National Security Investigations did not permit them to seek a warrant under the Foreign Intelligence Surveillance Act (FISA). That law required the FBI to establish probable cause that Moussaoui was acting as an agent of a foreign power and that the primary purpose of the warrant was not for criminal prosecution. Failure to meet these criteria would violate the concept of the FISA "wall," which restricted the ability of federal law enforcement officials to cooperate and share information with intelligence agencies. The wall meant that intelligence agents could not share any FISA warrant information with law enforcement agents working on the same subject. At that time, the FBI had insufficient probable cause for a regular criminal search warrant.
The result, of course, was that law enforcement missed an opportunity to stop the 9/11 attacks, and that debacle was part of the impetus behind the Patriot Act, which amended FISA, lowering the standard from probable cause to reasonable suspicion, and allowing for the sharing of intelligence with agents working on criminal prosecutions. To account for the wall's collapse -- and the increasing number and complexity of terrorism cases -- the FBI director commissioned the bureau's legal advisors to rewrite the old guidelines. The first edition of the new Domestic Investigations and Operations Guidelines, or DIOG, was published in January 2008 and later updated. These guidelines for investigative activity are what governed the FBI's response to the Russian inquiry on Tamerlan Tsarnaev.
SUBJECTS:
