Was the Ball Dropped in the Tsarnaev Questioning?

Major Garrett

To paraphrase Boston Red Sox slugger David Ortiz: This is our @#$&%! Constitution.

Ortiz spoke for Boston and much of America when he thanked law enforcement and political leaders for their stewardship during the Boston Marathon crisis and terrorist manhunt. He spoke to Boston’s anger when he defended the city and its refusal to be cowed by cowards. Ortiz’s vulgarism crackled over live television, usually an offense that at least draws formulaic FCC review. Not this time. A pardon was granted before it was even requested.

Ortiz also said “nobody is going to dictate our freedom”—meaning terrorists won’t deprive Bostonians of normality or the prospect of returning to it soon.

Freedom is essential to the post-terrorism concept of liberty. Freedom from fear. Freedom from a gnawing sense of dread in public spaces. Freedom from anxiety that every public celebration is just another “soft target” on some madman’s list and the act of eating ice cream on a street corner could be fraught with peril. We don’t live that way in America.

More accurately, we don’t want to live that way.

The question, the deep-seated question we must all ask ourselves, is how much are we willing to pay in service of that definition of freedom? Will rights be sacrificed or compromised or redefined in the name of safety? If so, which, and how, and at what cost?

These are not theoretical questions, and I don’t ask them from some Olympian perch of indifference. I’m as infuriated as Big Papi. I want justice. I want to know if there are other tentacles to this act of barbarism. If so, I want the squid in shackles and prosecuted to the fullest.

At the moment, though, we have the beginnings of a disturbing debate. It is over what the FBI did when the Russian government identified Tamerlan Tsarnaev, the older of the two brothers implicated in the bombing, as a person worthy of investigation due to influences of radical Islam and an alleged inclination to join “unspecified underground groups.” Some Republicans in Congress now suggest that the FBI dropped the ball in its original questioning of him.

Scrutiny intensified Tuesday when Homeland Security Secretary Janet Napolitano testified before a Senate panel that the department knew of his departure to Russia in 2012, a murky six-month odyssey that may or may not have set in motion operational plans for the Boston Marathon bombing. Napolitano said there was “a ping on the outbound” flight of Tamerlan Tsarnaev. A ball may have been dropped, and a ping may have been ignored. Or not.

These questions have taken on greater relevance in light of reports that Tamerlan, 26, and younger brother Dzhokhar Tsarnaev, 19, were motivated in part by extremist Islamic beliefs.

There are some important facts and history to digest here. First, some relevant facts.

Tamerlan and Dzhokhar lived in America legally. Both emigrated more than a decade ago and were granted refugee status. Dzhokhar became a U.S. citizen on Sept. 11, 2012, and Tamerlan’s application for citizenship, according to the Los Angeles Times, was still pending at the time of the Boston Marathon bombings. Even without citizenship, Tamerlan was a legal permanent resident and therefore would be treated by federal law-enforcement personnel with constitutional care.

Second, some relevant history.

Tamerlan’s questioning was carried out under very precise procedures found in the Justice Department’s Domestic Investigations Operations Guide, or DIOG. This is not some musty manual of advisory guidelines. It’s a heavily vetted road map for agents to follow in the post-9/11 world of domestic-intelligence investigations initiated without probable cause or factual basis. First developed in the waning days of the Bush administration, the DIOG drew criticism from civil libertarians when a lawsuit forced its release in October 2009.

The guide allowed FBI agents to undertake an assessment of an individual, but it also spelled out how far that assessment could go and how long it could last if the trail of evidence ran cold or never existed in the first place. Agents had 90 days to keep a file open or close it. If there is no “derogatory information,” the file must be closed, and its very existence is not enough to subsequently prejudice the government against the individual. Justice went to great lengths to instruct field agents in DIOG procedures. The training required a minimum of 16 hours and agents then had to pass a 50-question “open book” exam on the procedures before they could carry out future investigations.

In 2010, the Justice Department’s inspector general uncovered evidence of cheating on the exam—a significant scandal that embarrassed the FBI and brought DIOG procedures under even more intense scrutiny. In September 2011, Ralph Boelter, acting assistant director of the FBI’s counterterrorism division, told Congress that 18 special agents cheated on the exams—11 of them supervisors.

Needless to say, the DIOG procedures were under intense internal and external scrutiny about the time Russia tipped off the U.S. about Tamerlan Tsarnaev. By all known accounts, the FBI followed procedures and found nothing to substantiate allegations from a foreign country that an individual living in America had intentions of joining an underground terrorist group with radical Islamic tendencies. And the file was closed. After it was closed, there was no legal permission for the FBI to monitor the websites or YouTube feeds he watched or created or which mosques he attended.

Because that file was closed, and procedures said no one living in the U.S. who had a closed DIOG file should be under suspicion or surveillance, Tamerlan Tsarnaev was allowed to fly to Russia on his Russian passport. What he did there, we do not know.

If we are going to question the procedures here and allege balls were dropped or a ping was ignored, it is worth asking the following: What kind of a security apparatus would we tolerate that allows repeated and unending questioning and surveillance of a legal U.S. resident based on one charge lodged by a foreign government? Moreover, what kind of system would allow that charge, even after it was found to be baseless, to deny that legal resident the ability to fly outside the U.S.?

Again, to paraphrase Big Papi: This is our @#$&%! Constitution.