Gomez: The FBI did not bungle the Tsarnaev case

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 this week Sen. Richard Burr, R-N.C., 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.

David Gomez is a former assistant special agent-in-charge and counterterrorism program manager with the FBI. He now runs HLS Global Consultants, a risk-mitigation consulting firm. Follow him on Twitter: @AllThingsHLS.