National Security

Did the FBI Bungle the Tsarnaev Case?

What the bureau can and can't do on American soil.

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.

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.

The DIOG created a new category of investigation called an assessment. Each assessment was required to have an authorized purpose and an identified objective: "The basis of an assessment cannot be arbitrary or groundless speculation, nor can an assessment be based solely on the exercise of First Amendment protected activity, or on the race, ethnicity, national origin or religion of the subject." That means that someone like Tamerlan Tsarnaev could espouse sympathy for militant Islam without fear of investigation by the FBI -- as long as he didn't cross the line into activity that constitutes a violation of federal criminal law or a threat to national security -- because the Constitution protects his right to freedom of speech and religion. Tamerlan, as a permanent resident alien, a green card holder, was entitled to the same constitutional protections as any American citizen.

The request from the FSB would have resulted in the opening of a Foreign Police Cooperation case -- functionally the equivalent of an assessment. We know that the Boston field office then checked bureau files, records, databases, telephone communications, and any prior investigations into Tamerlan's activities. But Foreign Police Cooperation cases, like assessments, do not allow agents to use any legal process, such as a search warrant, in conducting their inquiry, and much like assessments, they are routine. As the last step, the FBI interviewed Tsarnaev and his family. According to its April 19 press release, "The FBI did not find any terrorism activity, domestic or foreign, and those results were provided to the foreign government in the summer of 2011. The FBI requested but did not receive more specific or additional information from the foreign government."

To do anything more than this -- that is, to move the inquiry of Tamerlan Tsarnaev from a Foreign Police Cooperation matter into the more involved predicated investigation known as a preliminary inquiry -- the FBI would have needed reasonable suspicion that he was breaking the law or presented a documentable threat to national security. It was the responsibility of the investigating office, in this case the Boston field office, to independently develop information or probable cause to open a predicated investigation against Tamerlan. Based on what the FBI -- and the CIA -- are reported to have known at the time, that higher standard did not exist.

If a preliminary inquiry had been opened, the substantive differences would have been the time allowed -- 90 to 180 days, versus 30 to 60 days, to complete the investigation -- and the ability to obtain search warrants and to conduct physical and possibly electronic surveillance of the subject. Given that the Boston office probably had much higher priority targets while it was assessing Tamerlan and that the Russian information was minimal at best, it is highly unlikely that the FBI conducted physical surveillance beyond what was required to identify him and get a sense of his daily activities. At any one time, a large field office like Boston can be working dozens of full field investigations and hundreds of preliminary inquiries. The FBI director has instructed field offices to leave no counterterrorism work unaddressed, so triaging a foreign police cooperation case like Tamerlan's would have been important to maintaining investigative equilibrium.

Assessing whether the FBI bungled the Tamerlan inquiry requires understanding not only what is authorized under a Foreign Police Cooperation case, but also what is not. The DIOG generally requires FBI agents to use the "least intrusive method" possible and emphasizes that the FBI is "responsible for protecting the American public, not only from crime and terrorism, but also from incursions into their constitutional rights." Therefore the idea that the FBI could conduct indefinite surveillance of any individual suspected of terrorism without an ongoing reasonable suspicion of federal criminal activity flies in the face of both the bureau's manpower capabilities -- which are not unlimited -- and the responsibility to protect individual civil rights.

Much has been made of the fact that the FBI was unaware of Tamerlan's subsequent trip back to Russia in 2012.  Little criticism is being raised, however, regarding the FSB's responsibility to provide information about that visit -- information that the FBI is on record as having requested. It is hard to believe that the FSB -- having initially requested that the FBI investigate Tamerlan because it feared he would link up with extremists in Russia -- would have allowed him to travel in the country unobserved and uninvestigated. Rather, based on my experience, the FSB would have initiated a vigorous internal security response to someone they regarded as a potential enemy of the state. The real question is what they learned about Tamerlan's activities in Russia and why they didn't share it with the FBI.

Despite the anger we feel over Tamerlan Tsarnaev's involvement in the bombing of the Boston Marathon, the killing of three spectators at the race, and the cold-blooded murder of a police officer, both he and his brother Dzhokhar were considered United States Persons under the law at the time the Russians made their request. That means that they were protected from unnecessarily intrusive investigative techniques by both the DIOG and the U.S. Constitution. The FBI did not bungle the Tamerlan inquiry. It followed the law.

STAN HONDA/AFP/Getty Images

Argument

Intervention Escalation

Alleged chemical weapons use by Syria is pushing the United States into doing something. But Russia, China, and Iran might have something to say about that.

Ever more credible claims by France, Britain, and some Israeli officials that the Bashar al-Assad regime has used chemical weapons have upped the pressure on the Obama administration to respond more decisively to the situation in Syria, and specifically to act on the president's chemical weapons "red line" warning. And the administration appears to be reconsidering its previous hesitancy. During a recent hearing of the Senate Armed Services Committee, Secretary Chuck Hagel announced that the United States would be sending some 200 troops to Jordan from the 1st Armored Division at Fort Bliss, Texas, to work alongside Jordanian personnel to "improve readiness and prepare for a number of scenarios" relating to the conflict in neighboring Syria. The Los Angeles Times reports that the Pentagon has drawn up plans to possibly expand the force significantly.

And yet the chances are, in today's political environment, that U.S. involvement in the region will not be of the massive, long-term sort seen in Iraq. U.S. military assistance is more likely to entail moving equipment, distributing humanitarian supplies, enforcing no-fly zones, coordinating or executing attacks on terrorists, and punishing the regime (in some fashion) for its violation of the chemical weapon "red line."

When, as is increasingly likely, the United States plays a military role in the Syrian conflict, it will not just have to worry about inadvertently strengthening local Islamists or getting bogged down in another Middle East quagmire. Washington must also consider the significant geostrategic consequences to Iran, Russia, and China, particularly if our intervention brings about the demise of their ally in Damascus. In diplomacy, as in physics, every action generates a reaction. Any U.S. engagement in Syria will not be different, and the Obama administration must be prepared.

Iran, Russia, and China have deep stakes in the preservation of the Assad regime. Iran provides the Assad regime with financial and military assistance, and aids in organizing the Alawite militia. In return, Tehran gets a significant forward operating base on the Mediterranean in which Iranian weapons can be modified, manufactured, and sent to their Hezbollah allies in Lebanon. But, equally important, the alliance with Syria strengthens Iran's claim as a leader in the resistance against Israel and a protector of the world's Shiites. Convinced that the West seeks their demise, Iran's ideologically driven leaders are unlikely to take Assad's downfall lightly and will likely become even more aggressive. Washington must anticipate even less progress in nuclear negotiations, greater destabilization in Iraq, increased Iranian asymmetrical adventures, new confrontations in the Gulf, and possibly even full-out nuclear weapons development.

China and Russia, too, have ideological and strategic interests in preserving Assad's rule. Russian President Vladimir Putin has hung much of his foreign policy on rejecting American-sponsored regime change, as his consistent rhetoric from Kosovo to Libya has made clear. Bejijng, while less vocal, takes care to limit pressure on its own puppet states, as we have seen in North Korea. In addition, China tends to follow the Russian lead on many global issues, in part because it shares Russia's "you win we lose" attitude toward the United States. Furthermore, China and Russia appear to fear the United States and its partners eventually using successful interventions to set a precedent for more widespread meddling in their domestic affairs, be it in the north Caucasus, Tibet, or Xinjiang.

The power balance in Syria's immediate neighborhood is so tipped in favor of the United States and its friends that there is little China and Russia (or Iran) could do to counter the United States directly. But, drawing from classic great power traditions they know well, Russia and China could act to the detriment of both U.S. interests and a stable globe. First, by opening or intensifying current fronts at odds with the United States, they could make Washington pay a price for helping topple Assad. Russia could tinker with Europe's continuing dependency on Russian hydrocarbons, complicate NATO's plans related to Afghanistan, and, with China, stymie U.S. initiatives in various international forums. China's growing economic, political, and military weight is manifest, as is its ability to challenge the United States on the Korean peninsula, with its island disputes with Japan and ASEAN states, and on trade relations with U.S. allies like Australia.

Russia and China could also take another tack, allying more openly with Iran and facilitating Tehran's anti-American escapades. For example, China could expand its recent limited increase in oil purchases from Iran, challenging the U.S. sanctions regime. Russia could reconsider its decision to withhold high-performance air defense equipment to Tehran, and otherwise assist Iran in its military buildup or in evading sanctions.

Russia and China could most forcefully teach a lesson to the United States in the realm of Iran's nuclear research program, a central U.S. concern. With the region in flux, China and Russia could forgo their traditional opposition to Iranian nuclear proliferation and block U.S.-backed sanctions against Iran in the International Atomic Energy Agency and the U.N. Security Council, or erect obstacles in the P5+1 negotiations. By undermining these diplomatic efforts, Russia and China would prevent Washington from acquiring the international mandate it would need to take military action against Iran if necessary. Arguably, this could no more deter the United States in Iran than did international intransigence slow efforts to move against Iraq in 2003. But times are different. The United States has based its entire campaign against Iran on international solidarity; losing that backing could undercut support among the U.S. public, which remains wary of entering new battles a decade after "Shock and Awe." And let's be clear: Iran, China, and Russia have far more strategic, diplomatic, and economic clout to wield against the United States than Iraq did in 2003.

The potential for a Russian, Chinese, or Iranian backlash should not deter Washington from taking necessary military action in Syria. Middle Eastern stability is a key U.S. interest and helping Syria to the best possible soft landing is central to our security role, as is living up to our red line threat on chemical weapons use. Shrinking from that responsibility could, in fact, bolster our detractors' self-confidence and embolden them: If Assad somehow survives, the rise in Iranian prestige and loss of ours could even prompt Moscow and Beijing, smelling blood, to up the ante against Washington. The Obama administration thus needs to think geostrategically in Syria; more Metternich than Wilson.

If the United States acts from a position of strength -- indicating our willingness to take military action -- we may induce Russia and China (perhaps even Iran) to be more cooperative today, as well as in the chaotic period after the regime's defeat. We need to share with Moscow and Beijing our thinking about Syrian day-after scenarios, including whether we could tolerate a de facto Alawite redoubt similar to Iraqi Kurdistan. Anything we can do to reassure them that we and our value system are not out to incorporate Syria after Assad would presumably help the two powers accommodate themselves to an U.S.-assisted new order in Damascus. But such reassurance would cut against the grain of all of our instincts with failed states -- to jump in until they can be made whole again. Similarly, proceeding from a position of military readiness, we can encourage Iranian cooperation in Syria by being more open about the economic sanctions we would be willing to trade for nuclear concessions.

The United States is already undoubtedly doing much of this talking to Moscow and Beijing, but the question remains open with what degree of clarity the administration has communicated its willingness to take risks, prioritize its needs, and deal with the devil when necessary. But above all, it must avoid the attitudes that still color much of Washington's foreign policy thinking: that we still live in a post-1989 world, that the triumph of the West is inevitable, and that the natural evolution of states is to become stable democracies. Alas, that time has passed.

LOUAI BESHARA/AFP/Getty Images