Published by The Lawfare Institute
in Cooperation With
Published by The Lawfare Institute
I was troubled by Philip Heymann’s Lawfare critique of the joint Inspectors General review of the government’s pre-Boston Marathon bombing investigation of Tamerlan Tsarnaev. There is much to commend in Heymann’s thinking, as I note below. But, like the review itself, Heymann’s analysis nevertheless is flawed by his unexplained omission of crucial facts---not least Tsarnaev’s alleged participation in a triple murder in 2011. And even more disturbing is Heymann’s recommendation that the FBI use “non-criminal process” to discourage a person’s possible “drift toward” terrorism after an investigation finds no evidence of criminal activity. The Good Heymann is absolutely correct that the FBI’s resistance to admitting errors is a huge problem, which only ensures that its mistakes will be repeated. Hindsight is 20/20, which is exactly why it is so useful in evaluating past performance. Having grown up a military brat, where after-action reports are standard practice for even the most routine activities, I was shocked to learn when I joined the FBI in 1988 that Bureau management didn’t conduct retrospective reviews after investigations closed. This unwillingness to accept even constructive internal criticism is one of the FBI’s biggest institutional flaws. Heymann is also correct that the Inspectors General report is unhelpfully timid in calling the FBI’s failings mistakes. Inspectors General have a tough job. They have to rely on the cooperation of the agency they oversee to conduct numerous routine audits and examinations that Congress demands each year. Especially harsh criticism in a special investigation like this one could result in a withdrawal of routine cooperation, making it difficult to do their regular work and meet mandated deadlines. One way Inspectors General navigate these waters is to make broad conciliatory statements in the conclusions of their reports that the agencies can then reference to mitigate the fallout – such as the finding in the Tsarnaev review that the agencies “generally shared information and followed procedures appropriately” – while burying facts that challenge such conclusions in the body of the report. As Heymann suggests, and the Inspectors General documented, the FBI’s inexplicable lack of concern over Tsarnaev’s travel to and return from Russia in 2012 was a “huge” mistake deserving of serious criticism. The 2011 Russian warning was far more detailed than the FBI has admitted, according to NBC News. It linked Tsarnaev to a wanted Canadian extremist who had already travelled to fight in Dagestan, and warned that Tsarnaev had similar plans. This was truly actionable intelligence because it alleged a possible criminal violation of U.S. material support for terrorism laws that could be verified or disproven through investigation. But this wasn’t the only mistake. The Inspectors General described a rushed and incomplete investigation, further hampered by an overburdened watch listing system that pings so often agents don’t even respond. But Heymann ignores the role information overload played in this failure, and instead suggests that giving law enforcement even broader authority is the answer. The Bad Ironically, Heymann makes the same mistake the FBI did in misidentifying the “nature of the problem” presented by the Russian warning about Tsarnaev. As Heymann sees it, the difficulty the FBI faces in fulfilling its terrorism prevention mission is figuring out how to “disrupt” the plans of “a previously unidentified individual or group in a community who may attempt an unspecified terrorist attack” (emphasis in original). Heymann argues that this task “inevitably means casting a wide net of at least slight suspicion over the broader community and all its members.” Heymann doesn’t specify, but I assume he uses the term “community” to mean Tsarnaev’s fellow Muslims, rather than his Cambridge, Massachusetts neighbors, even though it is fairly clear by now that Tsarnaev was increasingly uncomfortable with and unwelcome in the local Muslim community there. While Heymann acknowledges the collective suspicion he imagines is “unfair to the vast majority of those in the community,” he suggests the “potential” security benefits may be worth this cost. But mounting evidence shows that government’s broad net approach makes it even more difficult to find terrorists. The facts surrounding the Tsarnaev investigation provide the perfect example. Indeed, the government’s counterterrorism policies have long been focused on casting as wide a net as possible with the hope of later separating through investigation or analysis the safe from the dangerous. Thanks to Edward Snowden we now know that all of us are caught in it, as the government daily seizes the metadata from all our telephone calls. But officials now admit the program has never been responsible for stopping a terrorist attack. Likewise, the New York Police Department’s Demographic Unit, which conducted broad surveillance of American Muslim communities in a manner that appears to follow the strategy Heymann advocates, didn’t produce a single counterterrorism lead, and failed to identify Times Square bomber Faisal Shahzad or the Najibullah Zazi cell. The wide-net approach is not only ineffective, it is counter-productive. In the instances when terrorists have slipped through the dragnet, the follow-on investigations of what went wrong invariably find the government had specific warnings, yet failed to properly respond because of the overwhelming volume of information it had to manage. The Joint House-Senate Intelligence Committee investigation of the 9/11 attacks concluded that significant pieces of evidence had been lost in the “vast stream of data being collected.” After a father’s warning about the underwear bomber went unheeded, National Counterterrorism Center Director Michael Leiter pointed to the 5,000 pieces of information NCTC received each day in explaining the communication breakdown. The Webster Commission’s investigation of the FBI’s performance in the investigation of Ft. Hood shooter Maj. Nadal Hasan blamed the intense workload agents face as a result of the “data explosion” within the FBI. In fact, the Tsarnaev case presented none of the difficulties Heymann imagines. The Russian warning identified Tsarnaev effectively enough, and included details regarding the specific threat he allegedly posed – that he was planning to travel to Russia to join extremist groups. If true, such travel would be a crime under U.S. law, so it is unclear why the FBI did not pursue a criminal investigation designed to prove or disprove this allegation.In fact, the FBI didn’t even ask him if he had such plans when it interviewed him in 2011, much less follow up when his purchase of a one-way ticket to Russia “pinged” against the watch list. Inspector General interviews with FBI supervisors overseeing the case belied the Bureau’s official position defending the quality of its pre-bombing assessment. The FBI supervisors argued Tsarnaev’s travel to Russia was “huge” and would have “changed everything” about the scope of the investigation had they been told. But instead of focusing on the criminal allegation, the FBI chose a much harder task of assessing whether Tsarnaev “posed a threat to national security.” This approach is in keeping with the FBI’s new vision of itself as primarily a domestic intelligence agency rather than law enforcement agency. The idea, as expressed in the 2009 FBI “Baseline Collection Plan,” is to use its assessment authority (which requires no predicating evidence of wrongdoing) to collect a broad range of information for retention in FBI intelligence files. The Boston Joint Terrorism Task Force churned through 1,000 assessments in 2011 alone, which goes a long way toward explaining why the Tsarnaev assessment was so cursory, and why the case agent was loathe to go back and re-open the inquiry when Tsarnaev later traveled to Russia. These numbers are driven by “see something, say something” campaigns and a “no lead goes uncovered” policy that drains resources from more deserving investigations and inure investigators to expect false alarms. This workload puts lots of banal information into FBI files, but it hasn’t proved an effective method for identifying or interdicting threats. Indeed, to the extent the FBI assessed Tsarnaev wasn’t a threat, it was proven wrong much earlier than either the Inspectors General or Heymann acknowledge. Less than three months after the FBI’s 2011 assessment closed, and four months before Tsarnaev went to Russia, he participated in the brutal murder of three people in Waltham, Massachusetts, according to documents filed in federal court. The murders weren’t solved, which wasn’t unusual, as police cleared only 37% of Boston homicides in 2011. Neither the Inspectors General nor Heymann even bother to mention the incident. The 2011 murders disrupt the narrative Heymann lays out regarding Tsarnaev’s gradual and undiscoverable “drift” toward terrorism, which undermines his justification for moving away from traditional law enforcement methods and toward blanket suspicion over entire communities. Subjecting entire communities to undeserved scrutiny is unjust, unnecessary, and ineffective as a security measure. Perhaps if just a fraction of the resources the JTTF put into its hundreds of fruitless assessments in 2011 had been directed toward helping police solve violent crimes, there never would have been a Boston Marathon bombing. The Really Bad Heymann’s final recommendation is the most troubling, however, in that he suggests the government should be authorized to take continuing action against certain individuals even after investigations close without evidence of wrongdoing. Suggested examples include stern warnings that the person will be suspected in future crimes, law enforcement interaction with family or associates in which the person’s dangerousness would be conveyed, continuing physical surveillance, and efforts to address “the source of his anger at the United States.” Heymann describes these as “non-coercive and non-punitive,” but it isn’t hard to imagine that being subjected to such official harassment would feel both coercive and punitive. How would one possibly protect themselves from being targeted because of an error or intentional abuse? Heymann’s suggestion also plays into the long-standing but erroneous perception among law enforcement that anger and dissent against U.S. policies, especially by minority groups, is an indicator of dangerousness that justifies government scrutiny and suppression. This belief is what drove the Hoover-era FBI’s COINTELPRO program of “dirty tricks” to “disrupt, misdirect, discredit, or otherwise neutralize” the First Amendment activities of civil rights and anti-war activists. Modern FBI counterterrorism training materials continue to conflate dissent with dangerousness, which should give pause to anyone who wants to confer unchecked power to law enforcement agencies to decide which ideas need suppressing. Indeed, Heymann appears to be unaware that the FBI has already granted itself the powers he advocates for. The 2009 Baseline Collection Plan authorizes agents to initiate a “disruption strategy” after “all significant intelligence has been collected, and/or the threat resolved,” which could include “arrests, interviews, or source-driven operations to effectively disrupt the subject’s activities.” Since 9/11 American Muslims not suspected of any crime have been subjected to FBI agents showing up at their homes and workplaces for “voluntary interviews,” intensive scrutiny and questioning at border crossings and airports about their religious beliefs and charitable endeavors, and surveillance, infiltration and mapping of their mosques and community organizations. Such disparate treatment doesn’t suppress terrorism; it suppresses religious and political freedom. Heymann also ignores that the government used one such “disruption” technique against Tsarnaev, by placing and keeping him on terrorist watch lists. The House Homeland Security Committee described the content of the TECS alert placed against Tsarnaev in October 2011: “Escort [him] to CBP secondary and detain is mandatory whether or not the officer believes there is an exact match.” Yet despite the severity of this alert, Tsarnaev was not sent to secondary screening or detained before being allowed to travel because the high volume of higher-priority watch listed travelers going through JFK that day overloaded airport security resources. This highlights the error of the methodology Heymann advocates. Once “slight suspicion” of is placed over all members of a community, it is difficult to resolve, which leads to ever-growing watch lists that can’t effectively serve their purpose. It is unfair and unrealistic to expect the FBI to stop every terrorist attack, and sound policies would acknowledge this fact. The facts of the Tsarnaev investigation show the government doesn’t need more power, it needs to use its powers more effectively. Traditional standards of reasonable suspicion and probable cause don’t impair effective investigations – they ensure that law enforcement and intelligence resources are directed where they are most warranted. We can’t improve national security by sacrificing the security of particular communities within our nation from arbitrary government intrusion. Mike German is a fellow with the Brennan Center for Justice Liberty and National Security Program. He was formerly a Special Agent of the Federal Bureau of Investigation, and policy counsel to the ACLU. He is the author of Thinking Like a Terrorist: Insights of a Former FBI Undercover Agent (Potomac Books).
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