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FBI’s Curious Silence about the Waltham Murders

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Susan Zalkind, who has relentlessly followed the story of Ibragim Todashev, the friend of Tamerlan Tsarnaev whom FBI killed back in May, has a long story in Boston Magazine. The whole thing is worthwhile (though beware the disturbing pictures of Todashev’s corpse). But I’m particularly fascinated by the way Zalkind chronicles when the FBI started asking people about Todashev’s possible involvement in the Waltham triple murder.

She notes that the only person the FBI questioned about Todashev’s potential role in the murders while he was still alive (aside, presumably, from Todashev himself) was his girlfriend, Tatiana Gruzdeva.

While he was being interviewed, Tatiana said, two agents took her into an office, where they questioned her for three hours. At first they continued to ask her about the Boston bombings. The agents wanted to know if Ibragim was planning another attack.

“They asked me, ‘Can you tell us when he will do something?’” Tatiana recalled. “I said, ‘No! I can’t!’ Because he wasn’t doing anything, and I didn’t know anything.”

Then they brought up a new topic: a triple murder.

“They said, ‘We think he did something else, before.’ They said he killed three people in Boston 2011 with a knife. I said, ‘It’s not true! I can’t believe it.’ You know, I was living with him seven months, and we have a cat.”

Throughout the course of my reporting, Tatiana is the only one of Ibragim’s associates who recalled being questioned about the Waltham murders before Ibragim’s death.

But after asking her about Waltham, they immediately jailed her on an immigration violation which, Zalkind suggests, FBI used to pressure Todashev. A week later, with Gruzdeva still in immigration detention, they killed him.

In the interview an FBI agent did with Todashev’s friend Khusen Taramov just before they killed Todashev, they didn’t ask about Waltham.

Agent Chris asked Khusen a few questions, “Like what do you think about bombings, or do you know these guys, blah blah blah, or what is my views on certain stuff. You know what I mean, lotta stuff, different questions,” Khusen said. Chris didn’t mention a triple murder.

But then immediately after Todashev’s death, FBI started asking — or telling — a number of people about his alleged role int he murders. They told his wife they had DNA evidence implicating him.

When FBI agents came to tell Reni Manukyan that her husband was dead, they claimed they had hard evidence of his guilt in the Waltham murders. “We have DNA that proves he was involved in that triple murder,” she remembered them saying. “The only thing I was telling them is, ‘This is not true, this cannot be true.’”

They set up a crime so they could question Ashurmamad Miraliev about it, in an extended interrogation, without a lawyer, in which he claims he was subjected to what sounds like classic “separation” interrogation technique.

Ashurmamad says he was questioned by the FBI for hours—he’s not sure exactly how long—and was denied requests to speak to his attorney. (The FBI has declined to comment on this case, but a Tampa Field Bureau public-affairs official told me it is their policy to question individuals “with their consent, or in the presence of their attorney.”)

Agents had previously interviewed Ashurmamad and two of his roommates two days before Ibragim died. They questioned him about his own religious beliefs, the Boston Marathon bombings, and about Ibragim. Now, four months later, the interrogation was different. This time, agents were mostly interested in Ibragim and his involvement in the triple murder in Waltham. They wanted to know if there was someone else who might have been involved in the killings, and who else might have information.

[snip]

Although he had never been to Boston and never met the Tsarnaevs, Ashurmamad was nonetheless flagged—according to a note on the booking sheet—“ON TERRORIST WATCH LIST/PLACED PROTECTIVE CUSTODY AND HIGH RISK. HOUSE ALONE.” Ashurmamad was taken from the Orlando Police Department to the Osceola County jail, where he was kept alone in an 8-by-10 room. To meet with his lawyers, he had to have his hands and wrists shackled and be chained to the ground. Ashurmamad told me there were no windows, the light was always on, and he was always cold. He was there for a month until the tampering case was dropped. But he wasn’t released. His student visa had expired, and he’d missed a court date while he was in jail. So he was moved directly to an immigration detention facility, and on November 4, he was ordered to be deported back to Tajikistan.

It’s as if they didn’t want anyone to know about the potential connection until Todashev was killed, at which point they want everyone to know (but also want any immigrant with ties to Todashev barred from the country).

And in spite of the FBI setting up all these curiously timed interviews about Waltham, officially the investigation remains a Middlesex County matter.

The triple murder, Coakley explained, was not her investigation—it was the Middlesex County DA’s concern. She said that she could and would follow up to make sure state police were working with Waltham police on the murder case. “The Waltham PD and the state police should be working together,” she told us.

I find all this interesting given what has happened with Dzhokhar Tsarnaev as the FBI has interrogated, then deported or in some other fashion kicked out of the country, Todashev’s buddies in FL.

At roughly the same time as the FL investigation heated up, on August 27, Carmen Ortiz slapped Special Administrative Measures on Dzhokhar, nudging him closer to solitary treatment but also giving FBI control over what information he learns.

The following month, the government refused to give Dzhokhar any information on the involvement of his brother, Todashev, or himself in the Waltham murders, citing an ongoing investigation. Read more →

NSA’s Latest Claim: It Only Gets 30% of “Substantially All” the Hay in the Haystack

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SIGINT and 215In December 2007, the FBI began intercepting MOALIN’s cell phone.

— FBI search warrant affidavit seeking (among other things) additional cell phones, October 29, 2010

Yesterday, Siobhan Gorman reported that NSA’s “phone-data program” collects 20% or less of the phone data in the US. She explains that the program doesn’t collect cell phone data, and so has covered a decreasing percentage of US calls over the last several years.

The National Security Agency’s phone-data program, which has been at the center of controversy over the NSA’s surveillance operations, collects information from about 20% or less of all U.S. calls—much less than previously described by lawmakers.

The program had been described as collecting records on virtually every phone call placed in the U.S., but in fact, it doesn’t cover records for most cellphones, the fastest-growing sector in telephony and an area where the agency has struggled to keep pace, according to several people familiar with the program.

Ellen Nakashima’s report places the percentage between 20 and 30%, echoing Gorman’s claim about limits on cell data.

The actual percentage of records gathered is somewhere between 20 and 30 percent and reflects Americans’ increasing turn away from the use of land lines to cellphones. Officials also have faced technical challenges in preparing the NSA database to handle large amounts of new records without taking in data such as cell tower locations that are not authorized for collection.

[snip]

The bulk collection began largely as a land-line program, focusing on carriers such as AT&T and Verizon Business Network Services. At least two large wireless companies are not covered — Verizon Wireless and T-Mobile U.S., which was first reported by the Wall Street Journal.

Industry officials have speculated that partial foreign ownership has made the NSA reluctant to issue orders to those carriers. But U.S. officials said that was not a reason.

“They’re doing business in the United States; they’re required to comply with U.S. law,” said one senior U.S. official. “A court order is a court order.”

Rather, the official said, the drop in collection stems from several factors.

Apart from the decline in land-line use, the agency has struggled to prepare its database to handle vast amounts of cellphone data, current and former officials say. For instance, cellphone records may contain geolocation data, which the NSA is not permitted to receive.

These reports offer a more credible explanation than Geoffrey Stone’s multiple claims to this effect about why the program misses data. So they may be true.

But I think they instead point to the legal range of authorities NSA uses to collect phone records, not to what records they actually have in their possession.

These reports are commenting (though without specifying, or even seeming to be aware they need to specify) on what the government claims it collects under Section 215. These reports are not commenting on what NSA collects under all authorities.

In this post I will show why I believe these reports to be credible only in a very narrow sense. In a follow-up post I will point to the legal issues that underlie the Administration’s conflicting claims about what it collects.

Read more →

The Corporate Store: Where NSA Goes to Shop Your Content and Your Lifestyle

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I’m increasingly convinced that for seven months, we’ve been distracted by a shiny object, the phone dragnet, the database recording all or almost all of the phone-based relationships in the US over the last five years. We were never wrong to discuss the dangers of the dragnet. It is the equivalent of a nuclear bomb, just waiting to go off. But I’m quite certain the NatSec establishment decided in the days after Edward Snowden’s leaks to intensify focus on the actual construction of the dragnet — the collection of phone records and the limits on access to the initial database (what they call the collection store) of them — to distract us away from the true family jewels.

A shiny object.

All that time, I increasingly believe, we should have been talking about the corporate store, the database where queries from the collection store are kept for an undisclosed (and possibly indefinite) period of time. Once records get put in that database, I’ve noted repeatedly, they are subject to “the full range of [NSA’s] analytic tradecraft.”

We don’t know precisely when that tradecraft gets applied or to how many of the phone identifiers collected in any given query. But we know that tradecraft includes matching individuals’ various communication identifiers (which can include phone number, handset identifier, email address, IP address, cookies from various websites) — a process the NSA suggests may not be all that accurate, but whatever! Once NSA links all those identities, NSA can pull together both network maps and additional lifestyle information.

The agency was authorized to conduct “large-scale graph analysis on very large sets of communications metadata without having to check foreignness” of every e-mail address, phone number or other identifier, the document said.

[snip]

The agency can augment the communications data with material from public, commercial and other sources, including bank codes, insurance information, Facebook profiles, passenger manifests, voter registration rolls and GPS location information, as well as property records and unspecified tax data, according to the documents. They do not indicate any restrictions on the use of such “enrichment” data, and several former senior Obama administration officials said the agency drew on it for both Americans and foreigners.

That analysis might even include tracking a person’s online sex habits, if the government deems you a “radicalizer” for opposing unchecked US power, even if you’re a US person.

Such profiles are not the only thing included in NSA’s “full range of analytic tradecraft.”

We also know — because James Clapper told us this very early on in this process — the metadata helps the NSA pick and locate which content to read. The head of NSA’s Signals Intelligence Division, Theresa Shea, said this more plainly in court filings last year.

Section 215 bulk telephony metadata complements other counterterrorist-related collection sources by serving as a significant enabler for NSA intelligence analysis. It assists the NSA in applying limited linguistic resources available to the counterterrorism mission against links that have the highest probability of connection to terrorist targets. Put another way, while Section 215 does not contain content, analysis of the Section 215 metadata can help the NSA prioritize for content analysis communications of non-U.S. persons which it acquires under other authorities. Such persons are of heightened interest if they are in a communication network with persons located in the U.S. Thus, Section 215 metadata can provide the means for steering and applying content analysis so that the U.S. Government gains the best possible understanding of terrorist target actions and intentions. [my emphasis]

The NSA prioritizes reading the content that involves US persons. And the NSA finds it, and decides what to read, using the queries that get dumped into the corporate store (presumably, they do some analytical tradecraft to narrow down which particular conversations involving US persons they want to read).

And there are several different kinds of content this might involve: content (phone or Internet) of a specific targeted individual — perhaps the identifier NSA conducted the RAS query with in the first place — already sitting on some NSA server, Internet and in some cases phone content the NSA can go get from providers after having decided it might be interesting, or content the NSA collects in bulk from upstream collections that was never targeted at a particular user.

The NSA is not only permitted to access all of this to see what Americans are saying, but in all but the domestically collected upstream content, it can go access the content by searching on the US person identifier, not the foreign interlocutor, without establishing even Reasonable Articulable Suspicion that it pertains to terrorism (though the analyst does have to claim it serves foreign intelligence purpose). That’s important because lots of this content-collection is not tied to a specific terrorist suspect (it can be tied to a geographical area, for example), so the NSA can hypothetically get to US person content without ever having reason to believe it has any tie to terrorism.

In other words, all the things NSA’s defenders have been insisting the dragnet doesn’t do — it doesn’t provide content, it doesn’t allow unaudited searches, NSA doesn’t know identities, NSA doesn’t data mine it, NSA doesn’t develop dossiers on it, even James Clapper’s claim that NSA doesn’t voyeuristically troll through people’s porn habits — every single one is potentially true for the results of queries run three hops off an identifier with just Reasonable Articulable Suspicion of some tie to terrorism (or Iran). Everything the defenders say the phone dragnet is not, the corporate store is.

All the phone contacts of all the phone contacts of all the phone contacts of someone subjected to the equivalent of a digital stop-and-frisk are potentially subject to all the things NSA’s defenders assure us the dragnet is not subject to.

Read more →

6th Circuit: You Can Still Represent Yourself if Solitary Confinement Has Made You Incompetent

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As expected, the Sixth Circuit wasted no time in denying Umar Farouk Abdulmutallab’s appeal of his conviction and sentence. The Circuit affirmed District Court Judge Nancy Edmunds on all matters.

Curiously though, in his opinion, Judge David McKeague spends relatively little time on the most contentious issue of the case: whether or not Abdulmutallab was competent to represent himself. He doesn’t really address an issue raised by Abdulmutallab’s Appelate lawyer, Travis Rossman, whether any competence determination be concurrent.

As I noted in my coverage of the hearing, Standby Counsel Anthony Chamber’s case for incompetence was not that Abdulmutallab was incompetent in 2009 when he was arrested or in 2010 when he fired his attorneys, but had been made in competent by 19 months of solitary confinement.

The question wasn’t whether Abdulmutallab was competent on August 17, 2011, Tukel suggested, when Edmunds did not call for a competency hearing, nor whether he was competent on October 12, 2011, when he plead guilty. Rather, it was whether he was competent on September 13, 2010, when he fired his defense attorneys. This was part of what seemed a broader government strategy to obscure the timing issues. He also argued all Abdulmutallab’s most bizarre behavior post-dated the August 2011 hearing. He argued that because Abdulmutallab attended college in England, he must be competent (!). He also argued that US v. Miller weighs against the standard on concurrent determination.

What Tukel didn’t provide much evidence about (beyond that Abdulmutallab always answered Edmunds’ questions about counsel as one would expect a defendant defending himself) is whether he was incompetent in August 2011.

Yemeni daggers. Allahu Akbar. Improper attire. Those are the external signs of “craziness” this hearing focused on.

And yet, in spite of the fact that Rossman repeatedly raised Chambers’ descriptions of Abdulmutallab’s “mental lapses,” no one focused on that question.

Which is crucial because, as Rossman argued (albeit weakly), part of the argument was that the conditions of Abdulmutallab’s confinement — 19 months of solitary confinement by the time of the August 2011 hearing — made him incompetent to defend himself.

And while McKeague pointed to one point where Abdulmutallab responded rationally to Edmunds’ questions, his most sustained case for Abdulmutallab’s competence rests on the Nigerian’s competence in carrying out his terrorist plot 21 months before he pled guilty (note, some of these claims are actually quite contestable, but I won’t deal with that here).

In order for Abdulmutallab to accomplish his goal of blowing up an aircraft over United States soil, Abdulmutallab had to make numerous calculated decisions. A brief overview of the steps that Abdulmutallab took in preparation for his mission is instructive:

  • Abdulmutallab studied the teachings of the radical Imam Anwar Awlaki, which prompted his decision to travel to Yemen for the purpose of meeting Awlaki.
  • While in Yemen, Abdulmutallab agreed to carry out the martyrdom mission.
  • In order to conceal his time in Yemen, Abdulmutallab decided to travel to Ghana before departing to Amsterdam.
  • Abdulmutallab had to come up with clever reasons for traveling to the United States when an airport screener in Amsterdam questioned his reasons for travel.

These actions show the deliberate, conscious, and complicated path Abdulmutallab chose to pursue in the name of martyrdom. Unlike the defendants in Pate and Drope, Abdulmutallab not only acted rationally, but was (nearly) able to execute a complex martyrdom mission. The complexity behind Abdulmutallab’s mission indicates the exact opposite of incompetence.

In other words, McKeague’s opinion most strongly argues that if you’re competent enough to (almost) carry out a terrorist plot then you are competent enough to defend yourself, whether or not 19 months of solitary confinement make you incompetent in the meantime.

Ramzi bin al-Shibh, take note.

Perhaps as significant a part of this ruling as the competency one is how the Circuit dealt with Abdulmutallab’s challenge to his statements at University of Michigan hospital, given the assault on Miranda in other terrorism cases. Not only had he not been Mirandized, but he had also been administered drugs, when he made those comments.

Basically, McKeague punted.

Abdulmutallab argues that the district court erred in failing to suppress the statements he made during his time at the University of Michigan Hospital. Abdulmutallab states that his testimony at the hospital was compelled and therefore the Fifth Amendment prohibited the use of that testimony in trial.

We will not address the merits of Abdulmutallab’s argument, as he waived any right to challenge the suppression of his statements when he entered the guilty plea. When a criminal defendant pleads guilty, “he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards [for effective assistance of counsel].” Tollett v. Henderson, 411 U.S. 258, 267 (1973). This court has held that a defendant who pleaded guilty may not appeal an adverse ruling on a pre-plea motion to suppress evidence “unless he has preserved the right to do so by entering a conditional plea of guilty in compliance with Rule 11(a)(2).”

I don’t question this decision, particularly given the decision on competence. But it’s important because commentators had pointed to Abdulmutallab’s case as precedent for the treatment of (among others) Dzhokhar Tsarnaev. But the Circuit declined to fully endorse his treatment, one way or another.

Scary Terror Metrics: Do Indicted “Terrorists” Really Measure Back Door Spying?

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Screen shot 2013-12-04 at 9.02.37 AM

Given how often fellow Michigander Juan Cole and I demonstrate what a mendacious hack Mike Rogers is…

Mike Rogers voted to give arms to the Syrian rebels. And while he may hope they don’t go to the al-Qaeda affiliates (as happened when Ronald Reagan gave $5 billion to the Afghan Mujahidin in the 1980s), he has no guarantee that won’t happen and is willing to take the risk. If Rogers were really, really concerned about the Jabhat al-Nusra, he wouldn’t be risking upping its firepower with Americans’ tax dollars as a justification for monitoring who your 15 year old daughter calls on her cell phone.

Let us say that again. Feinstein and Rogers just came on television to scaremonger the American people with the Syrian jihadis, and both of them voted to give the Syrian rebels millions of dollars in arms.

… You’d think some of the MI press might look into it.

Thankfully, Cole and I are no longer the only ones asking substantive questions about Rogers and Dianne Feinstein’s fearmongering on this Sunday’s shows. Peter Bergen has a piece that — like Cole — looks at actual numbers to challenge their claims. He relies on a New America Foundation study of Americans and residents indicted or killed over the last decade, showing that those numbers show terrorism to be going down (and be propagated by smaller, less capable groups).

But is there any real reason to think that Americans are no safer than was the case a couple of years back? Not according to a study by the New America Foundation of every militant indicted in the United States who is affiliated with al Qaeda or with a like-minded group or is motivated by al Qaeda’s ideology.

In fact, the total number of such indicted extremists has declined substantially from 33 in 2010 to nine in 2013. And the number of individuals indicted for plotting attacks within the United States, as opposed to being indicted for traveling to join a terrorist group overseas or for sending money to a foreign terrorist group, also declined from 12 in 2011 to only three in 2013.

Of course, a declining number of indictments doesn’t mean that the militant threat has disappeared. One of the militants indicted in 2013 was Dzhokhar Tsarnaev, who is one of the brothers alleged to be responsible for the Boston Marathon bombings in April. But a sharply declining number of indictments does suggest that fewer and fewer militants are targeting the United States.

Recent attack plots in the United States also do not show signs of direction from foreign terrorist organizations such as al Qaeda, but instead are conducted by individuals who are influenced by the ideology of violent jihad, usually because of what they read or watch on the Internet.

None of the 21 homegrown extremists known to have been involved in plots against the United States between 2011 and 2013 received training abroad from a terrorist organization — the kind of training that can turn an angry, young man into a deadly, well-trained, angry, young man.

Of these extremists, only Tamerlan Tsarnaev, one of the alleged Boston bombers, is known to have had any contact with militants overseas, but it is unclear to what extent, if any, these contacts played in the Boston Marathon bombings. [my emphasis]

The post got me thinking about the validity of this metric. Are the number of people indicted since 2009 a reflection of the actual threat, or that Federal officials have exhausted all the leads they’ve gotten from backdoor searches of existing COMINT collections?

Consider what one anonymous source said in the months after Anwar al-Awlaki was killed.

U.S. intelligence analysts miss the publication, too, at least to the extent that it provided a window into the thinking of al-Qaeda in the Arabian Peninsula, as the Yemen-based group is known.

“It was something that helped us gain insight into the group,” said a U.S. defense official involved in tracking AQAP, who spoke on the condition of anonymity. The publication’s apparent demise is “an intelligence loss for us,” the official said.

Yet Inspire probably wasn’t just a window onto AQAP’s thinking (if it really was that). Particularly given the indications NSA had some access to its code (if I were NSA I would have attached some kind of flag to the code used to decrypt the document, and I would also search on that code in upstream collection), I would assume Inspire was a major source of leads. So did killing Awlaki and Samir Khan simply make it harder for US officials to find Muslims to trap in stings over time?

NAF’s data is inconclusive on this point.  Read more →

The Dog Ate Charles McCullough’s Homework

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Let’s take the narrative the Federal Government wants to tell us about the Boston Marathon attack.

Both FBI and CIA got tips from Russia in early- and mid-2011 implicating Tamerlan Tsarnaev in extremism which FBI, which appropriately has jurisdiction, investigated and entered into the relevant databases accessible to Joint Terrorism Task Force partners.

Later that year, the government alleges (based on the word of a guy they killed immediately thereafter), Tamerlan and Ibragim Todashev — and possibly Tamerlan’s brother Dzhokhar — knifed three friends and associates to death on 9/11 while they waited for pizza from a place the brothers may have once worked; while several of the people on both sides of that killing were involved in selling drugs, the presumed motive for that killing (especially given the date) pertains to Islamic extremism, not a drug and money dispute, in spite of or perhaps because of the pot and money left at the scene. After the killing, Tamerlan disappeared from the scene in Cambridge and was never interviewed by the cops. Senate Intelligence Committee members allege Russia passed on another warning about Tamerlan after October 2011, though the FBI insists it kept asking for more information to no avail.

The next year, Tamerlan left for Russia and Chechnya and Dagestan, but the Homeland Security dragnet missed him because Aeroflot misspelled his name (an issue that contributed to their missing the UndieBomb, too; Russia’s original tip to the FBI had gotten his birthdate wrong). While in Russia, Tamerlan met a bunch of Chechen extremists, several of whom were killed shortly after he met them. Then, Tamerlan returned to Boston, and he and his brother made some bombs out of pressure cookers and fireworks in his Cambridge flat (testimony of their cab driver notwithstanding), and then set them off near the finish line of the Boston Marathon, killing 3 and maiming hundreds.

In spite of the thousands of videos of the event, FBI’s prior investigation, and immigration records on the brothers including pictures, the government’s facial recognition software proved unable to find them (in spite of claims “FBI” officials were asking around Cambridge already), so the government released their pictures and set off a manhunt that resulted in Tamerlan’s death and the arrest of Dzhokhar.

That’s the story, right?

Two weeks after the attack, James Clapper tasked the Intelligence Community Inspector General, Charles McCullough, with investigating the attack to see if it could have been prevented (note, after the 2009 UndieBomb attack, the Senate Intelligence Committee conducted such an investigation but I’ve heard no peep of them doing so here). Also involved in that investigation are DOJ, DHS, and CIA’s IG, but not NSA’s IG, in spite of the fact that the Russians, at least, reportedly intercepted international texts implicating Tamerlan in planning jihad (though there’s no reason to believe the non-US side of those texts — a family member of the brothers’ mother — would have been a known CT target). (Note that, even as McCullough has been conducting this investigation, which ultimately involves information that has been leaked to the press, James Clapper has him conducting investigations into unauthorized leaks — does anyone else see the huge conflict here???)

Back on September 19 (perhaps not coincidentally the day after Ibragim Todashev’s friend Ashurmamad Miraliev was arrested in FL and questioned for 6 hours without a lawyer), McCullough wrote Congress to tell them that because “information relevant to the review is still being provided to the review team,” the review would be indefinitely delayed.

According to the BoGlo, McCullough is offering a new excuse for further delay: the shutdown.

Officials said the shutdown has hampered various agencies’ ability to conduct interviews, undertake research, or pay support personnel who are responsible for reviewing the operations of the government’s terrorism databases before the Marathon attack and determining whether information on the bombing suspects was properly handled.

[snip]

Last month congressional oversight communities were informed that while officials were “working diligently” to complete the review, the process of interviewing counter-terrorism officials and reviewing computer files had turned out to be more challenging than expected. McCullough, the intelligence community’s inspector general, said at the time that “information relevant to the review is still being provided to the review teams.”

A senior Senate staffer, who was not authorized to speak publicly, said briefings recently scheduled for intelligence officials to brief key congressional committees on the progress of the review were canceled.

So here we are over 6 months after the attack, and an inquiry purportedly reviewing whether our CT information sharing (led by the National Counterterrorism Center, which reports to Clapper, to whom McCullough also reports as a non-independent IG) did what it was supposed to, is still having trouble reviewing the actual databases (!?!?), ostensibly because they had to furlough the support people doing that rather than allow them to figure out how to fix problems to prevent the next terrorist attack. (Remember, James Clapper testified he had furloughed 70% of civilian IC staff, to the shock of Chuck Grassley and others.)

Perhaps that’s the problem. Perhaps it is the case that in 6 months time, IC support personnel had not yet been able to access and assess the database counterterrorism professionals are expected to monitor and respond to almost instantaneously. If that is the case, it, by itself, ought to be huge news.

Or perhaps there’s something about the Waltham investigation that has made it newly embarrassing that warnings before and — if blathery Senators are to be believed — after the murders didn’t focus more attention on Tamerlan Tsarnaev.

Carmen Ortiz Blows Off Dzhokhar Tsarneav’s Request on His Own Involvement in Waltham

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As AP reported, the government reported in motion opposing his discovery requests that Ibragim Todashev told them his brother participated in the 2011 Waltham triple murder.

In any event, the government has already disclosed to Tsarnaev that, according to Todashev, Tamerlan Tsarnaev participated in the Waltham triple homicide. Any benefit to Tsarnaev of knowing more about the precise “nature and extent” of his brother’s involvement does not outweigh the potential harm of exposing details of an ongoing investigation into an extremely serious crime, especially at this stage of the proceedings.

But the motion doesn’t address the full extent of Dzhokhar’s request, which asked for,

All documents concerning the investigation of the triple homicide in Waltham, MA on September 10-11, 2011, including without limitation documents concerning the alleged involvement of Tamerlan Tsarnaev, Ibragim Todashev, and/or our client in those murders. [my emphasis]

I’m not saying the government is wrong on the law in this case, and I do wonder whether they didn’t address this because they suspect Dzhokhar was involved in the murder (which would provide the existence of such information more protection).

But I do note their response focuses on whether they have information on Tamerlan and/or Ibragim (the latter of which they say would not be discoverable), not on whether they have information on any involvement Dzhokhar might have had in the killings.

FBI Says the FBI Wasn’t Surveilling the Tsarnaevs

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After years of questions about certain oddities in the Federal government’s treatment of Anwar al-Awlaki, Robert Mueller said this in one of his last public comments as Directof the FBI.

“I am not personally familiar with any effort to recruit Anwar al-Awlaki as an asset  — that does not mean to say there was not an effort at some level of the Bureau (FBI) or another agency to do so,”  Mueller said.

Which is why I find the specific wording of this statement, issued in response to questions Chuck Grassley is raising, to be so interesting.

Previously, members of the Joint Terrorism Task Force have responded to similar questions relating to whether or not the FBI, Boston Police, Massachusetts State Police or other members of the Joint Terrorism Task Force knew the identities of the bombers before the shootout. Members of the Joint Terrorism Task Force did not know their identities until shortly after Tamerlan Tsarnaev’s death when they fingerprinted his corpse. Nor did the Joint Terrorism Task Force have the Tsarnaevs under surveillance at any time after the Assessment of Tamerlan Tsarnaev was closed in 2011. The Joint Terrorism Task Force was at M.I.T., located in Cambridge, MA, on April 18, 2013, on a matter unrelated to the Tsarnaev brothers. Additionally, the Tsarnaev brothers were never sources for the FBI nor did the FBI attempt to recruit them as sources.

There has been recent reporting relating to whether or not the FBI, Boston Police, Massachusetts State Police or other members of the Joint Terrorism Task Force knew the identities of the bombers before the shootout with the alleged marathon bombing suspects, and were conducting physical surveillance of them on April 18, 2013. These claims have been repeatedly refuted by the FBI, Boston Police, and Massachusetts State Police.

To be absolutely clear: No one was surveilling the Tsarnaevs and they were not identified until after the shootout. Any claims to the contrary are false. [my emphasis]

I mean, sure, “No one” ought to include “not any agency or private entity, including those not listed here,” but maybe it doesn’t.

How to Evaluate the HIG? Exploitation? Dead Bodies?

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Carrie Johnson uses the arraignment of Abu Anas al-Libi as an opportunity to consider the success of the High Value Interrogation Group. She weighs the following details:

  • There haven’t been that many cases
  • Some governments refuse access to HIG
  • The group lacks leadership
  • The clean team model has problems

But I think we need to take a step back.

First, while Johnson gives a list of some of the interrogations conducted by HIG, it’s not comprehensive (for example, it doesn’t include Umar Farouk Abdulmutallab, with whom HIG was used in an ad lib capacity — it had just started; and it doesn’t include Manssor Arbabsiar). And it’s not clear we would know every time HIG gets used. For example, there were unnamed officials present at Ibragim Todashev’s death; given that we know HIG was used from the start with Dzhokhar Tsarnaev, it’s fair to at least ask whether any HIG members were present, and whether they remained in the room when Todashev was killed.

That expanded list of HIG interrogees quickly gets you to the question of consequences for HIG interrogees. Just from this possible list, you get questions such as,

  • If HIG was present at Todashev’s interrogation did they have a role in his killing?
  • Al-Libi was brought to New York because of health problems attributed to his choice to stop eating and drinking; did HIG use any food manipulation before this?
  • While I expect him to lose, Abdulmutallab’s appeal on competency grounds remains active; did HIG-induced solitary tip Abdulmutallab over the edge, as his appeal claims (he was reportedly not-altogether there when first detained)?

And these issues, plus the refusal of lawyers for Dzhokhar all could endanger convictions — and certainly, death penalties (which has already been taken off the table in al-Libi’s case) — in these cases.

Then there’s the question of what we’re after: the truth, or exploitation?

I’ve written about exploitation and HIG here, and Jason Leopold and Jeff Kaye showed how that — not necessarily truthful intelligence — was the goal of the torture program.

Exploitation is the use of interrogations not just to get intelligence, but also to support propaganda and/or generate informants. If exploitation is HIG’s goal, we might raise questions about whether both Abdulmutallab and Tsarnaev really implicated Anwar al-Awlaki of their own accord. In the former case, both non-HIG confessions did not implicate Awlaki as anything but an inspiration. In the latter, we know Tamerlan was also influenced by right wing propaganda. If exploitation is the goal, should we really believe the government story about the Scary Iran Plot, particularly given that most details of the “plot” — such as the restaurant targeted in Georgetown — came from our informant in the first place?

I don’t know the answer to these questions. But they seem to be ones we need to answer whether HIG works or not — to say nothing of whether a Democratic society should embrace HIG or not.

The Other Things the Government Is Hiding from Dzhokhar’s Lawyers

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As Josh Gerstein reported earlier today, Dzhokhar Tsarnaev repeatedly asked for a lawyer during his interrogation — and the government has not turned over details about the extent of his requests to his lawyers.

That’s interesting enough — does the government really expect it will be able to suppress these details?

But there are other details from Dzhokhar’s lawyers’ discovery request that I find equally of interest. The government also withheld:

  • The immigration files of requested individuals. The government has refused to share the files from anyone but Dzhokhar’s nuclear family (presumably meaning even the file of his spooked up uncle will be withheld, along with that of — say — Ibragim Todashev).
  • The interview reports from certain people in Russia.
  • Information about the surveillance and interviews of Tamerlan and the brothers’ mother prior to the Boston bombing.
  • Information on tips from the Russians.
  • Transcripts of Dzhokhar’s calls from the detention center. This would include a call to his mother the government cited in imposing SAPs on him.
  • “All documents and information concerning or comprising intercepted communications (e.g., U.S. mail, voice (telephone/skype/etc.) calls, text messages, e-mail messages, we search history/browser requests) of the defendant and his family members.” The filing doesn’t describe what, if any, response the government gave to this request.
  • Documents pertaining to the investigation of the 2011 Waltham murders, including any investigation of Tamerlan, Ibragim Todashev, or Dzhokhar. The government cited investigative privilege in withholding these documents.

Some of this may well come out later. But it seems the government is withholding anything that might touch Russian intelligence. Which is why I find this footnote so interesting.

With respect to the second summary disclosure, government counsel cryptically wrote: “We apologize for providing this information in a supplement but our own review of the information was unavoidably delayed.”

The Fifth and Sixth Amendment issues here might well endanger the government’s death penalty case, if not worse. But you get the feeling the government may be willing to risk their legal case (at least the death penalty) to protect these intelligence details.

Too bad for them so many of them have been leaked to the press or disclosed in the aftermath of killing Todashev.