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Article I Aghast that Article III Insisted on Separation of Powers

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It turns out Obama’s DOJ has not discovered new respect for accused rights since holding Manssor Arbabsiar and Faisal Shahzad two weeks without seeing a judge or lawyer after all. Rather, the magistrate who signed the complaint Sunday night made the decision on Saturday.

A federal judge made the call to advise the Boston bombing suspect of his Miranda rights, even though investigators apparently still wanted to question him further under a public-safety exception.

[snip]

The judge first told the Justice Department on Saturday she intended to read Mr. Tsarnaev his rights on Monday. One U.S. official said the judge cited the intense television coverage of the capture as one reason for initiating the criminal prosecution.

Kudos to Judge Marianne Bowler for the courage to stand by the law.

Meanwhile, the Members of Congress who learned about this yesterday were outraged Article II didn’t tell Article III to fuck off. Mike “Like he was J Edgar Hoover” Rogers even wrote Eric Holder about it (as if Holder had sway over Bowler).

House intelligence committee Chairman Mike Rogers (R., Mich.) said in an interview Thursday that Justice officials should have pushed back on the judge’s plans. He wrote to Attorney General Eric Holder late Wednesday to register his concerns.  “What I find shocking is that the judiciary proactively inserted itself into this circumstance and the Justice Department so readily acquiesced to the circumstance,” he said. “The court doing this proactively they may have jeopardized our ability to get public-safety information.”

[snip]

The revelation came late Wednesday at a briefing before the House intelligence committee. One lawmaker in the meeting asked FBI Deputy Director Sean Joyce why the FBI didn’t raise objections, according to another U.S. official.

Mr. Joyce said in essence it wasn’t the FBI’s role to object to such a determination, the official recounted.

The answer stunned many of the lawmakers in the room. “The whole tenor in the room changed,” the official said.

Remember, by the time Bowler read Dzhokhar his rights, multiple government witnesses were leaking publicly that the government was convinced there was no imminent threat, the entire point of the public safety exception. No one was even pretending this was about public safety anymore.

Nevertheless, the House Intelligence Committee is outraged — outraged!! — that a judge did her job.

Was There Even a BB Gun?

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Over the weekend, we heard the story that when Tamerlan Tsarnaev rushed the small group of cops who were trying to arrest him, he was strapped with a suicide vest. In addition, we were told, the brothers had two handguns, an M-4 rifle, and a BB gun. The brothers, we were told, were planning further attacks.

At this point, the support for the claim Tamerlan had a suicide vest has disappeared (as it should have as soon as his brother ran over him with the SUV, though that detail, too, may not be entirely true). Ray Kelly — who never met a fear he didn’t want to magnify — tells us the brothers were headed out not to conduct further attacks, but to party in NYC. And according to the AP, just one handgun was found at the site of the shootout, and none was found on Dzhokhar when he was arrested.

Officials also recovered a 9 mm handgun believed to have been used by Tamerlan from the site of an April 18 gunbattle that injured a Massachusetts Bay Transportation Authority officer, two U.S. officials said.

The officials told the AP that no gun was found in the boat where Dzhokhar was hiding. Boston police Commissioner Ed Davis said earlier that shots were fired from inside the boat.

Asked whether the suspect had a gun in the boat, Davis said, “I’m not going to talk about that.”

But Kurt Schwartz, director of the Massachusetts Emergency Management Agency, said a police officer was shot within half a mile of where Tsarnaev was captured, “and I know who shot him.”

Authorities had previously said Dzhokhar exchanged gunfire with them for more than an hour Friday night before they captured him inside a tarp-covered boat in a suburban Boston neighborhood backyard. But two U.S. officials said Wednesday that he was unarmed when captured, raising questions about the gunfire and how he was injured.

All that’s not to say the brothers weren’t dangerous. There is still the matter of the additional pressure cooker bomb thrown at the site of the shootout, and some pipe bombs thrown during the chase, some of which exploded. They had already shot a cop at point blank range, apparently in a failed attempt to get a second handgun (though, as the NYT version of this story makes clear, the video from that murder don’t even conclusively show that it was the brothers). The NYT even notes that Dzhokhar was not — as reported Friday — outside the search perimeter in Watertown, but within it.

But a number of the original details describing how dangerous the two were haven’t survived as the fog of the chase has lifted.

How much of that earlier picture arose from embarrassment that Dzhokhar escaped the police shootout, leading to the shutdown of all of Boston? How much of it arose from a long-cultivated image of what Islamic terrorists do, as distinct from what two disgruntled American immigrants might do?

Especially given Sean Collier’s murder, I’m not faulting the cops for being careful. But to what extent are we running from ghosts the terror industry has created over the last 10 years?

The Intelligence Committee’s “Secret” Briefings on the Boston Attack

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There are 15 members of the Senate Intelligence Committee. By my count, at least 5 of them revealed some part of what they got briefed on the Boston attack yesterday afternoon to the press.

Saxby Chambliss says an agency may not have shared one piece of evidence.

“There now appears that may have been some evidence that was obtained by one of the law enforcement agencies that did not get shared in a way that it could have been. If that turns out to be the case, then we have to determine whether or not that would have made a difference,” Chambliss said.

Though Chambliss would not get into specifics on  the information or whether or not the bombing could have been prevented, he told Channel 2 Action News that they will find out if someone dropped the ball.

“Information sharing between agencies is critical. And we created the Department of Homeland Security to supervise that. We created the National Counter Terrorism Center to be the collection point for all of this information, and we’re going to get to the bottom of whether or not somebody along the way dropped the ball on some information and did not share it in a way that it should have been shared.”

Chambliss also suggested that some of the walls that had been eliminated after 9/11 may have been unintentionally recreated.

“Post-911 we thought we had created a systems that would allow for the free flow of information between agencies,” said Senator Saxby Chambliss, a Republican from Georgia and member of the intelligence panel. “And I think there have been some stone walls .. .that have been re-created that were probably unintentional.”

Richard Burr revealed that FSB had contacted the government more than the single, January 2011 time that has been reported; it contacted us (he didn’t say what agency) at least once since October 2011.

Russian authorities alerted the US government not once but “multiple’’ times over their concerns about Tamerlan Tsarnaev — including a second time nearly a year after he was first interviewed by FBI agents in Boston — raising new questions about whether the FBI should have focused more attention on the suspected Boston Marathon bomber, according to US senators briefed on the probe Tuesday.

[snip]

In a closed briefing on Tuesday, members of the Senate Intelligence Committee learned that Russia alerted the United States about Tsarnaev in “multiple contacts’’ — including “at least once since October 2011,’’ said Richard Burr, a Republican of North Carolina, speaking with reporters afterward.

Susan Collins revealed that one agency even had problems sharing information within its own agency and repeated that magic word, “stovepipe.”

“But I’m very concerned that there still seem to be serious problems with the sharing of information, including critical investigative information,’’ she said after emerging from the closed-door committee briefing. “That is troubling to me, this many years after the attacks on our country in 2001, that we still seem to have stovepipes that prevent information from being shared effectively, not only among agencies but also with the same agency in one case.”

Russian authorities alerted the US government not once but “multiple’’ times over their concerns about Tamerlan Tsarnaev — including a second time nearly a year after he was first interviewed by FBI agents in Boston — raising new questions about whether the FBI should have focused more attention on the suspected Boston Marathon bomber, according to US senators briefed on the probe Tuesday.

The FBI has previously said it interviewed Tsarnaev in early 2011 after it was initially contacted by the Russians. After that review, the FBI has said, it determined he did not pose a threat.

In a closed briefing on Tuesday, members of the Senate Intelligence Committee learned that Russia alerted the United States about Tsarnaev in “multiple contacts’’ — including “at least once since October 2011,’’ said Richard Burr, a Republican of North Carolina, speaking with reporters afterward.

Marco Rubio shared details echoing those reported elsewhere, that the brothers had gotten both their beliefs and bomb instructions online. Dianne Feinstein — the only Democrat I found blabbing to the press — said to hold off on making judgments.

Now, none of these details are that informative. I’m interested in the multiple follow-up complaints from Russia, particularly given that other reports say FBI asked for follow-up information from Russia three different times and got nothing (was FSB sharing it with the CIA?). I’m interested in the agency that couldn’t share information within its own agency.

Other than that, I get the impression this is more of what plagues our counterterrorism efforts in the first place: a flood of information with an imperfect ability to sort it (not to mention the very distinct possibility that there were no definitive pieces of intelligence that would have alerted authorities to the brothers’ violent intent).

But I wonder, given that no one seems to take the “closed” part of “closed hearings” very seriously. Why can’t we just brief this stuff publicly, so taxpayers and citizens can learn whether the billions we’ve spent on counterterrorism have done anything more than create even more bureaucracies.

Update: This story confirms that the second request was to CIA, which referred it back to the FBI.

Meanwhile, a review of Russia’s contacts with the U.S. authorities, shows that six months after the Russians asked the FBI to review the activities of Tsarnaev’s brother, Tamerlan, Russian authorities made an identical request to the CIA.

The official, who is not authorized to comment publicly, said the CIA was aware of the FBI’s prior review—which turned up nothing improper—and referred the Russian request back to the FBI.

The CIA is prohibited from conducting intelligence operations on U.S. soil.

The FBI, which had closed its review on Tsarnaev in June 2011 after sharing its results with Russian officials, again contacted their Russian counterparts, asking if they had developed additional information on the Cambridge, Mass., man.

But the official said Russian authorities never responded.

This story notes that FSB has been accompanying the FBI as it questions the Tsarnaev parents and provides background on all the ways US-Russian relations are strained right now.

Inspire, Hijacking, and the Second Car

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Just wanted to put up a post addressing several questions on the Boston Marathon attack we’ve been discussing.

First, NBC reports that Dzhokhar Tsarnaev told authorities they learned how to make a pressure cooker bomb by reading AQAP’s Inspire magazine.

The surviving suspect in the Boston Marathon attack has told investigators that he and his brother got instructions on building bombs from an online magazine published by al Qaeda, federal law enforcement officials told NBC News.

Dzhokhar Tsarnaev told investigators that the brothers read the instructions in Inspire, an online, English-language magazine that terror monitoring groups say al Qaeda began publishing in 2010.

The magazine has twice included articles on building bombs with kitchen pressure cookers — the method investigators say Tsarnaev and his brother, Tamerlan, used in the Boston attack.

If true (remember, this revelation presumably took place at a time when Dzhokhar was not 100%), it suggests that killing a bunch of people in Yemen won’t keep us safe from terrorism.

No doubt, though, it will be used to distract attention from the other reported fact that the brothers were working alone, and were effectively disgruntled American immigrants reacting to US wars against Muslims rather than members of a foreign terrorist group. Because the punditocracy is trying really hard to avoid considering why guys who had spent so much time in the US would do this, absent external encouragement.

Next, the hijack victim. It had been reported he was not a citizen. The Daily Mail claims the victim was Chinese. This conflicts with an earlier Fox report, which said the victim was white. And in this limited instance, I think Fox may be more accurate than a London rag. But I repeat my earlier questions about whether this victim’s identity has been so closely guarded because FBI may need to shore up his visa to ensure he’ll be available for testimony (and let me be clear, I say this from close second-hand observation of what happens when a non permanent resident becomes the critical witness in a legal case, which is why I raise it).

Finally, I wanted to draw your attention to this astounding account from a Watertown resident who chronicled the shootout between the brothers and the cops. It appears to be the best account of that fight (and shows that it was not as large scale as we might imagine given the massive manhunt that followed it).

I’m most interested by this description, confirming the brothers did indeed (as earlier reported by the Watertown police chief) have two cars — the stolen Mercedes and a sedan that was reported as a Honda.

The shooters were also driving the green sedan on the left. They had the back passenger door open and were going back into the car where they had additional supplies (assumingly, more ammunition and explosives). They also had backpacks at their feet where they also had additional supplies.

The role of the second car is actually something entirely obscured in the complaint, which describes one brother (I suspect, Tamerlan) hijacking the Mercedes, then picking up the other brother, then allowing the victim escape at a snack stop. The complaint then picks up the narrative with the Watertown cops IDing the vehicle.

A short time later, the vehicle was located by law enforcement in Watertown, Massachusetts.

But, given the wonderful time stamps offered in this photo account, the brothers had made their snack stop, gotten the second car, and gotten to Watertown in a matter of 15 minutes.

So where was the car? Had it been stashed somewhere to allow a getaway?

The Dzhokhar Complaint

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As I noted in the last thread, the complaint against Dzhokhar Tsarnaev has been released.

The affidavit supporting the complaint was sworn yesterday evening at 6:47, not in Boston, but in Brookline.

It charges Dzhokhar with two counts: unlawfully conspiring to use a WMD (which is a terrorism charge) and maliciously destroying, by use of an explosive, property used in interstate and foreign commerce, resulting in death. The WMD charge is completely consistent with past charges, though it is used more consistently with Muslim terrorists than with white terrorists (though it was used, then plead down, against the Spokane MLK bomber, who used a bomb similar to the one Dzhokhar allegedly used).

The complaint describes what surveillance footage of Dzhokhar shows just after he dropped his knapsack on the ground outside the Forum Restaurant:

The Forum Restaurant video shows that Bomber Two remained in the same spot for approximately four minutes, occasionally looking at his cell phone and once appearing to take a picture with it. At some point he appears to look at his phone, which is held at approximately waist level, and may be manipulating the phone. Approximately 30 seconds before the first explosion, he lifts his phone to his ear as if he is speaking on his cell phone, and keeps it there for approximately 18 seconds. A few seconds after he finishes the call, the large crowd of people around him can be seen reacting to the first explosion. Virtually every head turns to the east (towards the finish line) and stares in that direction in apparent bewilderment and alarm. Bomber Two, virtually alone among the individuals in front of the restaurant, appears calm. He glances to the east and then calmly but rapidly begins moving to the west, away from the direction of the finish line. He walks away without his knapsack, having left it on the ground where he had been standing. Approximately 10 seconds later, an explosion occurs in the location where Bomber Two had placed his knapsack.

[snip]

I can discern nothing in that location in the period before the explosion that might have caused that explosion, other than Bomber Two’s knapsack.

There are a few more details about the bombs and aftermath of interest.

The complaint appears to depart from some reports from Watertown cops, in that it reports both brothers took the Mercedes SUV together to the shootout. (Read the complaint to hear the chilling exchange with the Mercedes owner.)

The complaint describes apparent gunshot wounds to Dzhokhar’s head, neck, legs, and hand. If these are indeed gunshot wounds, it indicates more gunshot wounds than has been previously revealed by the FBI.

Finally, the complaint describes finding what appears to be the clothes Dzhokhar wore at the Marathon — his white hat and black jacket. They also found some BBs there.

Update: neil on asks a question a lot of people are asking: why include the carjacking when it wasn’t charged?

Remember, this is a complaint. All it has to do is prove probable cause for arrest. It doesn’t have to lay out all the evidence or charges (though indictments don’t have to provide all that much detail either).

But the carjacking is important because it records one of the brothers (it doesn’t specify which one, but for a variety of reasons I suspect it is Tamerlan) admitting to being the marathon bomber. Then, it describes the carjackers proceeding to use a pressure cooker bomb against the Watertown cops that is very similar to the pressure cooker found at the marathon. Without the carjacker episode, you’ve only got video evidence against Dzhokhar, and not even that definitive evidence. But with the carjacking, you tie it to a confession and further physical evidence.

Update: NYT has made the transcript of his appearance before the judge available.

Dzhokhar Charged, Administration Confirms Civilian Prosecution

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Two important updates on the Marathon Bomber.

First, according to WCVB, Dzhokhar Tsarnaev was charged this morning in front of a magistrate judge in his hospital bed.

Dzhokhar Tsarnaev, the surviving accused Boston Marathon bomber, has been arraigned in his hospital bed, a federal official tells NewsCenter 5’s Kelley Tuthill.

The complaint against him has been sealed and is not public, according to Gary Wente, the circuit executive for the U.S. Courts in Boston.

A magistrate went to Beth Israel Deaconess Medical Center Monday for Dzhokhar Tsarnaev’s initial appearance.

Also this morning, Jay Carney announced at his press conference that Dzhokhar will be tried in civilian court; he will not be treated as an enemy combatant (which he couldn’t be legally in any case).

Now let’s see what kind of access the government permits his lawyer.

Update: Here’s the complaint (h/t Mike Scarcella)

Update: Here’s a transcript from the appearance. (h/t NYT)

Outsourcing America’s Bad Human Rights Reputation

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Given all the attention to the Administration’s decision, thus far, to neither Mirandize nor charge Dzhokhar Tsarnaev, I wanted to point back to two things that happened last week.

First, in a hearing before the House Appropriations Committee, in response to Congressman Frank Wolf’s frustrated declaration (for a variety of totally justified — such as Holder’s delay in implementing a prison rape preventing program — and totally bogus reasons) that he was just going to ignore Eric Holder, Holder made a case that his DOJ is doing a great job. Josh Gerstein describes his little speech:

I’m proud of what we’ve done across the board at the Justice Department in the last four and a half years. I’m proud of what I’ve done as attorney general. The department that we have now is fundamentally different than the department I found when I got there. We don’t hire people on the bsis of political orientation. We don’t do things as was done in the previous administration. We don’t write memos that say that torture is appropriate when dealing with interrogation techniques. [my emphasis]

No. As far as we know, at least (given the secrecy of the Administration), they have not written memos saying torture is appropriate when dealing with interrogation. They have, however, written memos stretching the concept of public exception beyond its intended function. They have also written memos reinterpreting due process before execution to mean “what John Brennan says in secret.”

In other words, Eric Holder’s DOJ has written memos authorizing practices that are alternatives, but arguably not much better, than the policies his predecessors rubber stamped.

Meanwhile Micah Zenko has a great post summarizing how many of the counterterrorism acts presumably conducted in cooperation with US forces — if not by US forces yet blamed on local ones — fall under the State Department’s definition of human rights violations.

Today—eighty-nine days past its legal deadline—the State Department released its annual Country Reports on Human Rights Practices for 2011. The new, user-friendly interface allows you to find and read individual country chapters much more quickly and easily (and might explain the delay). For all its flaws, the report remains a must-read for its reporting and candor. It serves as a generally honest counter to the rosier assessments of U.S. partners and allies’ human rights practices.

From my vantage point of trying to understand the Obama administration’s policies and practices of target killings, the report is also notable for what it does not include; namely, any mention of U.S. involvement in or responsibility for such operations.

The chapter on Yemen, for instance, has an entire section dedicated to “killings:”

The government also employed air strikes against AQAP and affiliated insurgents in Abyan, with some strikes hitting civilian areas. Although some accused the government of intentionally striking civilians in Abyan, most if not all noncombatant casualties from these bombardments were attributed to a lack of air force training and technical capability.

First, because U.S. targeted killings in Yemen are “covert,” the State Department cannot acknowledge American complicity or collusion. But it stands to reason that some, if not a majority, of these air strikes were carried out by CIA or Joint Special Operations Command (JSOC) drones, or even U.S. Navy assets offshore.

Zenko goes on to point to passages criticizing human rights abuses in Turkey, Somalia, and Pakistan that likely have US involvement.

It’s bad enough that the Attorney General’s measurement of his Department’s performence is measured against John Yoo’s standards, not the law, but we’re probably helping other countries violate State’s own standards for human rights.

All the while dodging the real shame that ought to come from such abuses.