Tamerlan Tsarnaev: Not a Step by Step Investigation

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Screen shot 2013-05-24 at 12.19.43 PMIn a piece summarizing investigators’ understanding of Tamerlan Tsarnaev based largely on their investigations in Russia, ABC unironically quotes Dana Rohrabacher — who used to play dress-up mujahadeen when they were fighting Russia in Afghanistan — on intelligence-sharing tensions with Russia.

That communication gap has become a target for a group of American lawmakers who plan to visit Russia next week to investigate the bombing.

“If there was a distrust, or lack of cooperation because of that distrust, between the Russian intelligence and the FBI, then that needs to be fixed and we will be talking about that,” Rep. Dana Rohrabacher (R-Calif.), the chairman of the House Committee on Foreign Affairs’ Subcommittee on Europe, Eurasia and Emerging Threats who is leading the Congressional delegation, told ABC News by telephone.

ABC makes no mention of the recent escalation of intelligence tensions, from the failed recruitment in March followed by the refused entry on May 5 of US lawyer Thomas Firestone, the May 14 exposure of Ryan Fogle, who allegedly was attempting to recruit FSB’s expert on Chechen extremists, and the May 17 exposure of someone FSB claimed was CIA’s Station Chief in Moscow.

That is, ABC doesn’t point to the pretty extraordinary ways Russia is trying to drive up tensions even as we’re supposed to be working together to understand the Boston Marathon attack.

Nor does it mention that the FBI “and other law enforcement personnel” killed Russian Ibragim Todashev, just as they were purportedly getting him to sign a confession to involvement, with Tamerlan, in a grisly 2011 triple murder.  The now-dead Todashev will not be able to shed any more light on what kind of relationship he had with Tamerlan, nor what relations with Russian nuts of all types they might have had.

There’s a lot it doesn’t mention.

It does, however, in the 25th and 26th paragraph (the last two), admit this:

While the officials described their cooperation with the Russians as “unprecedented,” they grumbled privately that they have been unable to do a methodical step-by-step investigation like they are used to doing in the U.S., or even in other countries where they have long-standing cooperation. American investigators from the FBI have been unable to travel to Dagestan without permission from the Russian authorities.

Still, they insist they have been able to confirm much of what they have been told by Russian government officials from what one official vaguely described as “other channels.”

I do hope these “other channels” are truly independent. Because it seems Russia is not only limiting the degree to which the FBI can investigate Tsarnaev, but inventing new reasons to add to tensions with the US.

Did Solitary Confinement Make UndieBomber 1.0 Incompetent to Represent Himself?

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But, in fact, the FBI do a great job as far as eliciting information after they’re Mirandizing them, and so they can get information as part of that type of negotiation with them, let them know they can in fact languish forever, or we can in fact have a dialogue about it intelligently.

— John Brennan, describing the way the FBI gets suspects to talk after Mirandizing them

Here’s something you may not know: Umar Farouk Abdulmutallab, the first UndieBomber, is appealing his conviction and sentence.

He’s doing so on several grounds, including that his confession made during public safety questioning while on fentanyl should not have been admissible at trial. But the most interesting issue — and the one that takes up the bulk of his appeal — argues Abdulmutallab was not competent to represent himself. (His appeal, as well as the government response and his reply only recently got unsealed by the Circuit Court.)

As the appeal notes, back in August 2011, after he had been in custody almost 20 months, his standby counsel Anthony Chambers submitted a motion requesting a competency hearing, one the judge rejected.

His standby counsel filed a motion requesting a competency hearing, noting that Abdulmutallab suffered “mental lapses,” engaged in “bizarre behaviors,” and sometimes seemed interested in presenting a defense while at other times he seemed indifferent to his defense. Abdulmutallab also demonstrated indifference toward his defense in front of the district court. The district court denied the motion for a competency examination based largely on Abdulmutallab’s own equivocal and rambling profession of competency. The failure to hold the competency examination cannot be cured after the fact and requires a new trial so that a “concurrent determination” of competency can be made. Abdulmutallab’s guilty plea did not waive the competency issue because a person whose competence is in doubt cannot knowingly, voluntarily, and intelligently waive a right or plead guilty.

The appeal cites consistent difficulties Abdulmutallab and attorneys tied to his case had with the Milan Correctional Facility, where he was being held in solitary confinement with communication restrictions. At almost every status hearing (save the one where he fired his court appointed lawyers), Abdulmutallab complained about the communication restrictions placed on him at Milan. (“Milan” is pronounced My-lin.)

At a status conference on April 13, 2010, his attorney’s reported that security restrictions at Federal Correctional Institute Milan (“Milan”) had severely limited their ability to meet with him to review discovery and other matters. He was held in solitary confinement under constant 24-hour manned observation.

Read more →

A Not-A-Drone-Strike Near Disney World

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The FBI has been tracking a Chechen martial arts practitioner in FL, Ibragim Todashev, since the Boston Marathon attack. The guy knew Tamerlan Tsarnaev from Boston and reportedly had a phone conversation with him “more than a month ago” (which still would put it shortly before the attack). Todashev — who got in a serious fight in a parking lot earlier this month — had recently booked a flight to NY, with plans to travel on to Chechnya.

So, after having interviewed him yesterday, the FBI decided to interview him again around midnight last night.

It didn’t end well.

The FBI said Ibragim Todashev was shot and killed just after midnight at 6022 Peregrine Avenue in the Windhover Apartments near Universal Orlando.

“The agent encountered the suspect while conducting official duties. The suspect is deceased,” FBI Special Agent Dave Couvertier told Local 6.

John Miller, the former FBI assistant director who now works for CBS News, said the FBI was trying to re-question Todashev at his apartment when “something went wrong.”  Miller said the FBI agent fired shots, but details of the incident have not yet been released and it’s not known if Todashev had a gun.

This will bear watching.

Here’s the FBI’s complete statement on the killing.

The FBI is currently reviewing a shooting incident involving an FBI special agent. Based on preliminary information, the incident occurred in Orlando, Florida during the early morning hours of May 22, 2013. The agent, two Massachusetts State Police troopers, and other law enforcement personnel were interviewing an individual in connection with the Boston Marathon bombing investigation when a violent confrontation was initiated by the individual. During the confrontation, the individual was killed and the agent sustained non-life threatening injuries. As this incident is under review, we have no further details at this time. [my emphasis]

You’d think a crack investigative agency like the FBI would know how many and what kind of other law enforcement personnel were present.

Oh, what’s that? You mean they’re not telling us on purpose?

Update: Apparently Todashev confessed to playing a role in the triple murder in Waltham in 2011 authorities suspect Tamerlan was involved in.

Todashev, they say, had spent some time in the Boston area, where he was a mixed martial arts fighter, and knew Tsarnaev there.  Investigators say he confessed to the agent in Florida that he played a role in a triple murder in 2011 in which three men were discovered slain in an apartment in Waltham, Mass.

Their throats had been cut, and their bodies were covered with marijuana. No suspects had been arrested in that case.

Officials say FBI agents were questioning Todashev on Tuesday. He was cooperative at first, they say, but later that night, he attacked the agent with a knife, who shot and killed him. Officials say Todashev became violent as he was about to sign a written statement based on his confession.

Chances are great that the FBI didn’t tape this claimed confession.

Update: As I suspected, at the time of the assault earlier this month, Todashev was being actively followed, presumably by the FBI.

According to discovery in that case, deputies knew immediately that Todashev was either a cage or jui juitsu fighter and knew “how dangerous these men can be,” a report said.

“I told this subject if he tried to fight us I would shoot him,” one deputy wrote in a report.

The report said that Todashev told deputies he believed he was being followed by federal agents.

He told deputies that three vehicles with tinted windows that were behind him when he was stopped were FBI vehicles. All three cars left the scene before deputies could confirm that they the drivers were federal agents, according to the report.

“I noticed one vehicle was driven by a male, had a computer stand and appeared to be talking on a radio,” the deputy said in the report.

Why Would the US Shield Fahd al-Quso in February 2012 But Drone Kill Him in May 2012?

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On February 10, 2012, the government went out of its way to hide Fahd al-Quso’s ongoing involvement in terrorist attacks against the US. Three months later, on May 6, 2012 — the day before the AP published its story about CIA thwarting an UndieBomb attack — the government killed Quso in a drone strike.

DOJ’s narrative of UndieBomb 1.0 hides Quso’s role in it

On February 10, 2012, as part of his sentencing, DOJ submitted a narrative telling one version of how Umar Farouk Abdulmutallab attempted to bomb Northwest Flight 253 over Detroit. In it, the government tied Abdulmutallab (who, after all, had pled guilty to a conspiracy to commit terrorism) to three AQAP figures: It claimed Anwar al-Awlaki, among other things, gave Abdulmutallab his final instructions that the attack be directed at a US plane and the bomb be set off over US soil. It explained how AQAP bomb-maker Ibrahim al-Asiri constructed the bomb and personally trained Abdulmutallab on its use. And it noted that while Abdulmutallab was training with AQAP, he met Samir Khan who (the narrative helpfully noted in a footnote) would go on to publish Inspire.

The narrative DOJ submitted on February 10 did not mention Fahd al-Quso by name.

Watering trees with UndieBomber 1.0

That’s odd, because Quso reportedly did play a role in Abdulmutallab’s attack. According to a March 2011 AP story, Quso may have been the last person Abdulmutallab met with before he set off on his attack.

Before Abdulmutallab set off on his mission, he visited the home of al Qaeda manager Fahd al-Quso to discuss the plot and the workings of the bomb.

Al-Quso, 36, is one of the most senior al Qaeda leaders publicly linked to the Christmas plot. His association with al Qaeda stretches back more than a decade to his days in Afghanistan when, prosecutors said, bin Laden implored him to “eliminate the infidels from the Arabian Peninsula.”

From there he rose through the ranks. He was assigned the job in Aden to videotape the 1998 suicide bombing of the USS Cole, which killed 17 sailors and injured 39 others, but fell asleep. Despite the lapse, he is now a mid-level manager in the organization. Al-Quso is from the same tribe as radical U.S.-born cleric Anwar al-Awlaki, who had an operational role in the botched Christmas attack.

In December, al-Quso was designated a global terrorist by the State Department, a possible indication that his role in al Qaeda’s Yemen franchise has grown more dangerous.

Al-Quso was indicted on 50 terrorism counts in New York for his role preparing for the Cole attack and served more than five years in prison in Yemen before he was released in 2007. On the FBI’s list, al-Quso ranks behind only bin Laden and his deputy Ayman al-Zawahiri among the most sought-after al Qaeda terrorists.

After meeting with al-Quso, Abdulmutallab left Yemen in December 2009 and made his way to Ghana, where he paid $2,831 in cash for a round-trip ticket from Nigeria to Amsterdam to Detroit and back. [my emphasis]

Indeed, Abdulmutallab’s tie to Quso is one of the only aspects of Abdulmutallab’s trip in Yemen that has been independently verified.

In his book, Dirty Wars, Jeremy Scahill notes,

A local tribal leader from Shabwah, Mullah Zabara, later told me he had seen the young Nigerian at the farm of Fahd al-Quso, the alleged USS Cole bombing conspirator. “He was watering trees,” Zabara told me. “When I saw [Abdulmutallab], I asked Fahd, ‘Who is he?'” Quso told Zabara the young man was from a different part of Yemen, which Zabara knew was a lie. “When I saw him on TV [after the attack], then Fahd told me the truth.” [first bracket original, second bracket mine]

Later in the book, Scahill reports that Zabara was assassinated this January by unknown killers.

Is Fahd al-Quso Abu Tarak?

The details of Quso’s ties to Abdulmutallab — particularly that the Nigerian was watering trees on Quso’s farm — make me wonder whether Quso isn’t the person Abdulmutallab called Abu Tarak in his initial confession on Christmas Day 2009.

In his opening argument in the abbreviated Abdulmutallab trial, AUSA Jonathan Tukel described what Abulmutallab initially confessed after he was captured. Along with all the things later attributed to Awlaki and Asiri, Tukel said Abdulmutallab described having daily talks with Abu Tarak about jihad.

He told the FBI that he and Abu-Tarak spoke daily about jihad and martyrdom and supported al-Qaeda and Osama bin Laden.

In a narrative on Abdulmutallab’s commitment to jihad also submitted for the sentencing based on his personal reviews of Abdulmutallab’s interrogation reports, DOJ expert Dr. Simon Perry suggested that Abdulmutallab was living with Abu Tarak when in Yemen, though he says that was in Sanaa, not Shabwah.

While residing at Abu Tarak’s residence in Sana, Yemen he was mainly confined to his residence and discouraged from any communication with the outside world (phone, email). During this period, UFAM spoke regularly with Abu Tarak and three other individuals who visited him daily, speaking with them about Jihad and martyrdom.

In any case, regardless of whether or not Quso is Abu Tarak, or whether Abu Tarak is an amalgam of AQAP figures, it seems clear that Quso played some role in Abdulmutallab’s preparation.

And yet DOJ chose not to mention that this guy — who had been trying to attack the US since the October 12, 2000 USS Cole attack — was among the notable AQAP figures who prepared Abdulmutallab to attack the US.

Was DOJ hiding that they knew how to infiltrate AQAP?

Whatever Quso’s role in UndieBomb 1.0, the implication of the timing is clear: he was central to the UndieBomb 2.0 plot. Indeed, it is almost certain that CIA asked AP to delay publishing their story to give time to kill Quso, who had just sent our mole off with another UndieBomb.

In other words, one plausible explanation for why DOJ did not confirm what other reports made clear is that it did not want to tip Quso off to what Abdulmutallab told them about him. That is, if they were already planning the op against him, they wouldn’t want him to know they knew how Abdulmutallab had found him 2.5 years earlier.

That is just one possibility, of course.

But if that’s the case — if DOJ obscured Quso’s role in the government’s most extensive accusations that Anwar al-Awlaki had an operational role in targeting the US — then are the claims about Awlaki true?

Obama’s Headlong Rush to Counterterrorism Transparency

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By my count, Thursday will be the 100th day since Obama promised, in his State of the Union Adress delivered February 12, “to engage Congress to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.”

Back then there were, officially at least, just a handful of Gitmo detainees on hunger strike. And it’s possible — if DOJ used the two 45-day gags on subpoenas they permit themselves — a subpoena seizing the phone records for 21 AP phone lines had already been issued.

After Obama promised more transparency on drones and other counterterrorism programs, Members of Congress continued to have to demand minimal transparency. On February 20, Rand Paul sent his third request for that information. On February 27, House Judiciary Chairman Bob Goodlatte repeated that Committee’s request to see OLC’s drone targeting memos; he also expressed anger that the Administration had refused to send a witness to the hearing.

On March 7, Eric Holder hinted that we would “will hear from the President in a relatively short period of time” on drones and transparency and counterterrorism.  On March 8, guards at Gitmo shot non-lethal bullets at detainees. The following day US conducted a drone strike in Pakistan, one of two strikes that month.

On March 11, Progressive Members of Congress sent a letter asking for information on drone targeting.

On April 9, McClatchy reported that most drone strikes had hit low level militants, contrary to public claims; it also revealed the intelligence reports themselves were false.

On April 10, the House Judiciary Committee finally threatened to subpoena the OLC memos authorizing the killing of an American citizen; that was at least the 23rd request for such information from Congress. A week later the Committee would finally get a promise to see just those memos, memos squarely within the Committee’s oversight jurisdiction.

On April 13, the military locked down Gitmo, effectively depriving most detainees of the human company they had enjoyed for years. On that day, 43 men were hunger striking.

On April 14, Samir Haji al Hasan Moqbel described, in a NYT op-ed, “I’ve been on a hunger strike since Feb. 10 and have lost well over 30 pounds. I will not eat until they restore my dignity.” That same day, the US launched one of two drone strikes in Pakistan that month.

On April 15, the Tsarnaev brothers attacked the Boston Marathon, reportedly in retaliation for treatment of Muslims in Afghanistan and Iraq.

April 17, a US drone struck the Yemeni village of a Yemeni, Farea al-Muslimi, already scheduled to testify before the Senate Judiciary Committee about how drones turn Yemenis against the US.

On April 21, the number of hunger strikes at Gitmo reached 84 — over half the men there. Six days later, on April 27, that number reached 100. Three more men have since joined the hunger strike.

As those numbers were growing, on April 25, Dianne Feinstein called on Obama to transfer those detainees who have been cleared. On April 30, Obama renewed his promise to close Gitmo. The next day, the White House made clear that the moratorium preventing almost half the detainees, men who have been cleared for transfer, to return home to Yemen, remained in place.

On May 10, the AP learned that DOJ had seized phone records from 21 phone lines with no notice, potentially exposing the sources of up to 100 journalists.

On May 16, in a hearing querying whether Congress should eliminate or expand the September 18, 2001 Authorization to Use Military Force, Assistant Defense Secretary Michael Sheehan testified the war on terror would last at least 10-20 more years. He also said DOD won’t be taking over CIA’s side of the drone war anytime soon.

Saturday, a drone strike killed at least 4 thus far unidentified men in Yemen.

Which brings us to Thursday when, the WaPo details, Obama will give a speech telling us once again the drone strikes are legal, his desire to close Gitmo is real, and leaks his new CIA Director exacerbated are serious. He will, apparently, also tell us how he plans to make his counterterrorism plan look more like what he promised it would look like 4 years ago.

President Obama will deliver a speech Thursday at the National Defense University in which he will address how he intends to bring his counterterrorism policies, including the drone program and the military prison at Guantanamo Bay, Cuba, in line with the legal framework he promised after taking office.

In the interim between when he promised this transparency and when he’ll start to sort of deliver it (but not, apparently, any actions to close Gitmo), about 7% of his second term will have passed.

Some of the delay, apparently, comes from the need to address the issues that have been festering during the delay.

Obama was prepared to deliver the speech earlier this month, but it was put off amid mounting concerns over a prisoner hunger strike at Guantanamo Bay and more recently the Justice Department leaks investigation — both of which the revised speech may address.

But otherwise, it appears it has taken 100 days to be able to craft a speech good enough to make his paranoia about secrecy and lip service to human rights in counterterrorism look like something else.

Ah well, at least they’ve sharply curtailed drone strikes while they’ve been writing a speech.

Dzhokhar’s Sharpie Manifesto

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CBS had a fascinating scoop this morning, reporting that (presumably in the hours when he was holed up and authorities searched just blocks away), Dzhokhar Tsarnaev wrote a part-confess part-manifesto on the wall of the boat.

The note — scrawled with a marker on the interior wall of the cabin — said the bombings were retribution for U.S. military action in Afghanistan and Iraq, and called the Boston victims “collateral damage” in the same way Muslims have been in the American-led wars. “When you attack one Muslim, you attack all Muslims,” Tsarnaev wrote.

Tsarnaev said he didn’t mourn older brother Tamerlan, the other suspect in the bombings, writing that by that point, Tamerlan was a martyr in paradise — and that he expected to join him there soon.

The CBS version of the story suggests this sharpie manifesto may make up for any evidentiary problems given the FBI’s refusal to give Dzhokhar a lawyer.

Miller explained that while Tsarnaev admitted many of the same details to authorities during his 16 hours [sic] in custody, those admissions came “during the time he was interrogated but before he was given his Miranda warning.” The note gives prosecutors supporting and clearly admissible evidence even if there is an fight over whether things Tsarnaev said before he was given his Miranda rights are admissible as evidence.

Though it’s unclear whether CBS’s reporter came to this conclusion on his own or that’s what his sources told him.

Which brings us to this laughable detail in the ABC version of the story.

Spokespeople for the Massachusetts State Police and the Watertown police had denied the existence of the writings when first asked about them by ABC News two weeks ago.

Today, both departments referred reporters to the FBI. A federal law enforcement official confirmed reports first broadcast by CBS News that writings had been discovered inside the boat.

The discovery of writings intensified tensions between the FBI and local police when FBI agents believed some Boston officers and state police had taken cell phone pictures of the writing.

Agents demanded the phones of all officers at the scene the night of the capture of Dzhokhar be confiscated to avoid the photos becoming public before being used as evidence at trial, according to two law enforcement officials.

A FBI spokesperson said agents cannot confiscate phones without a warrant and officials said none of the police approached would agree to turn over their phones to the FBI.

Hahahaha! The cops would turn over their phones, with their evidence of Dzhokhar’s manifesto, without a warrant!!!

Hahahaha!

Only, there’s something funny about the story. Why would cell phone pictures of the manifesto matter if the FBI had properly documented photos taken immediately after the arrest when the chain of custody was intact? I mean, I could see worrying about tainting the jury pool, but the leaked content of the interrogations already said all this stuff anyway.

Putin’s Game

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‘I declare it’s marked out just like a large chessboard!’ Alice said at last. ‘There ought to be some men moving about somewhere–and so there are!’ she added in a tone of delight, and her heart began to beat quick with excitement as she went on. ‘It’s a great huge game of chess that’s being played–all over the world–if this is the world at all, you know. Oh, what fun it is!’

As you may have heard, the Russians rather ostentatiously outed an alleged American spy, Ryan Fogle, yesterday. Before I talk about that, I wanted to make sure folks had Garry Kasparov’s op-ed in the WSJ from the other day. Among other questions about whether we really want to be partnering closely with Vladimir Putin, Kasparov notes how selective Putin’s attentiveness to terrorism can be.

Terror would seem to be a more likely area for U.S.-Russian collaboration, especially regarding the virulent brand of Islamist extremism that has been bubbling over in Russia’s southwestern Caucasus region since the fall of the Soviet Union. Yet the Kremlin’s cooperation on the Islamist threat has been remarkably selective.

Soon after the suspects’ names in the Boston bombing became known, the Russian security services announced that they had warned the FBI about the elder Tsarnaev, Tamerlan, in 2011. But what about during and after Tamerlan’s visit to Russia’s North Caucasus in 2012? That’s when he reportedly was indoctrinated and trained by radicals in Dagestan.

Why were there no communications in 2012 from the FSB (the successor of the KGB) about a suspected radical, an American no less, training in the hottest of Caucasus terrorist hotbeds and then returning to the U. S.? It is beyond belief that the extensive police state that monitors every utterance of the Russian opposition could lose track of an American associating with terrorists.

Tamerlan reportedly met with Makhmud Mansur Nidal, a known terror recruiter, and William Plotkin, a Russian-Canadian jihadist. Both men were killed in Dagestan by the Russian military just days before Tamerlan left Russia for the U.S. If no intelligence was sent from Moscow to Washington, all this talk of FSB cooperation cannot be taken seriously.

This would not be the first time Russian security forces seemed strangely impotent in the face of an impending terror attack. In the Nord-Ost theater siege by Islamist Chechens in 2002 and the Beslan school hostage attack by Chechen and other Islamist radicals in 2004, it later came to light that there were FSB informants in both terror groups—yet the attacks went ahead unimpeded. Beslan was quickly used by Mr. Putin to justify shredding the last vestiges of Russian democracy by eliminating the election of regional governors.

It’s not just Kasparov doubting Putin’s cooperation on the Boston Marathon investigation.

House Intelligence Chair Mike Rogers complained about it back on April 26.

“The Russians I think have a lot more information here than they are sharing today,” Rogers told Fox News. “They’ve kind of let us peek under the curtain a little bit, but it’s very clear to me that they have valuable information that, A, they should have provided earlier, and B, that we need to get now to understand what happened when he went back to Russia.”

Shortly thereafter, Putin and President Obama had their second conversation on the topic, after which Putin publicly professed to have little of value to offer because the Tsarnaev’s hadn’t been living in Russia.

Mr. Putin said last week that the Federal Security Service was unable to provide “information which had operative value” about the Tsarnaev brothers, “due to the fact that the Tsarnaevs had not lived in Russia for many years.”

Mr. Putin’s spokesman, Dmitri S. Peskov, repeated that phrase after the two presidents spoke on Monday, but he said cooperation between the countries’ counterterrorism and intelligence services had improved to new levels as a result of the Boston bombing.

“This aroused praise from Putin and Obama, and their satisfaction,” Mr. Peskov told the Interfax news service, adding that cooperation on intelligence “on the whole promotes mutual confidence in bilateral relations.”

The White House offered a more reserved account of the two leaders’ conversation, noting “the close cooperation that the United States has received from Russia on the Boston Marathon attack.”

Meanwhile, a WSJ story from last week catalogued all the things Russia either did not turn over in timely fashion or did turn over with errors:

  • (Possibly) that Canadian alleged extremist William Plotnikov –whom Russia killed last July — had implicated Tamerlan as an associate in 2010
  • The original tip from the FSB provided incorrect birth dates for Tamerlan
  • FSB provided no response to three requests for more information from FBI
  • Texts from Tamerlan’s mother telling another relative he’d be interested in joining jihad
  • Details from Tamerlan’s trip to Russia in which FSB alleges he met with militants

To be sure, some of this reluctance to share information is a very normal imperative to protect sources and methods, Read more →

Hailing Carmen Ortiz While Ignoring Several Amendments

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Main Justice has a bizarre post suggesting that those who excoriated Carmen Ortiz for her treatment of Aaron Swartz (and Tarek Mehanna and Russ Caswell, though MJ doesn’t name them by name) are now hailing her aggressiveness.

“The criticism lately has been that they’ve overcharged some people and been overly harsh,” Peter Elkann, a Boston defense attorney, said in a recent interview with Reuters. Elkann went on to observe that “no one is going to accuse any prosecutor of making too big a deal out of this case.”

That would be a safe statement, considering that the April 15 bombing killed 3 people and wounded more than 280 others, many of whom lost legs, as it left blood on the street and horrified and infuriated millions of Americans.

Ahem.

Maybe Main Justice doesn’t read this blog, which has twice noted the needless prosecutorial irregularity of Dzhokhar Tsarnaev’s interrogation.

But I would hope that a site covering legal inside baseball has heard of a guy named Erwin Chemerinsky, who seems just as troubled by DOJ’s refusal to comply with Dzhokhar’s reported request for a lawyer as bmaz and I?

It has become increasingly evident that the Justice Department violated the constitutional rights of Boston bombing suspect Dzhokhar Tsarnaev. He apparently was questioned for hours without being given hisMiranda warnings, and the interrogation continued even after he explicitly requested an attorney. It is disturbing that the Justice Department would risk its criminal prosecution by ignoring such basic rules and even more disturbing for what this says as to its view of the Constitution.

Don’t get me wrong. I don’t think Carmen Ortiz made the decision to refuse Dzhokhar a lawyer through 16 hours of interrogation alone. I’m quite certain she did that because that’s the policy — generally and specifically — Obama’s DOJ wants to pursue.

But that’s true of her over-aggressive pursuit of the war on drugs, the war on hackers, and the war on Muslims, too, the wars she was fighting when she took down Aaron Swartz and Tarek Mehanna (and tried to take down Russ Caswell). The other abusive decisions she made all reflect the policy choices of the Obama Administration.

But denying someone his Fifth and Sixth Amendment rights is completely consistent with what we’ve seen Carmen Ortiz do in the past. And while Main Justice appears unphased by it, some of the same people who have noted her prosecutorial aggression in the past are noting it continues here.

The Ongoing Tsarnaev Investigation

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There have been a number of interesting developments in the Boston Marathon bombing investigation. This post will mostly serve to collect them and comment on what they say.

The taxi cab full of pressure cookers

First, there’s a nagging question I’ve got. Anonymous leaks to the press have claimed that Dzhokhar Tsarnaev told the FBI he and his brother assembled the pressure cooker bombs in Tamerlan’s Cambridge apartment (which is one of the reasons authorities distrust Katherine Russell Tsarnaeva, leading her to hire Johsua Dratel to represent her).

But if it’s true the brothers assembled the bombs in the apartment, then what was this cab ride all about?

Jim Duggan, 51, has been haunted since his close encounter with brothers Tamerlan and Dzhokhar Tsarnaev, thinking maybe he could have unwittingly thwarted the killer plot if he had just driven away.

He told the Daily News on Thursday that the brothers flagged him down April 14 outside a rapid-transit station in the Boston suburb of Malden.

“I tried to put their backpacks into the trunk, but they wouldn’t let me touch them,” Duggan said.

He drove the men to Cambridge, letting them out near Kendall Square — close to where they lived.

Duggan said the brothers gave him a $2 tip on a $38 fare. As he started to drive away, the the older brother, Tamerlan, 26, began pounding on his car and yelling at him to get his attention.

The taxi driver said he immediately stopped and popped the trunk. Before the brothers could stop him, he removed one of the backpacks, which he now suspects held a homemade pressure-cooker bomb used in the attack.

“I said to them, ‘That’s the most packed backpack I ever picked up,’” said Duggan, guessing the bag weighed about 20 pounds.

I’m especially interested in this given Dzhokhar’s reported claim that they were going to hit the July 4th celebration, but finished the bombs early and therefore decided to target the Marathon instead. What if they had picked up the bombs at some location on the commuter rail?

The pizza and pot murders

In 2011, a friend of Tamerlan’s and two others were killed in a bizarre and brutal killing in Waltham. At the time, people thought Tamerlan’s behavior was weird (for example, he didn’t go the funeral, which Tamerlan’s ultra conservative views might have prohibited). In the wake of the Boston attack, though, authorities now claim not just Tamerlan, but also Dzhokhar, might be tied to the killing.

In the wake of the Marathon bombings, Middlesex County began to probe a link between the elder Tsarnaev and Brendan Mess, one of the three men killed in the gruesome slaying on Sept. 11, 2011. Officials said Mess and two men were found in a Waltham residence with their throats slit and their bodies covered with marijuana. Tamerlan and Mess were once roommates and did boxing and martial arts training together.

Now law enforcement officials tell ABC News that some crime scene forensic evidence provided a match to the two Tsarnaev brothers. The officials also said records of cell phones used by the Tsarnaevs appears to put them in the area of the murders on that date. Several officials confirmed the new findings but declined to be identified because they are not authorized to comment on the ongoing investigation.

[snip]

Then, Gerry’s Italian Kitchen became a focal point again on April 24, nine days after the Marathon bombing, after investigators removed a Planet Aid charity donation bin from its parking lot. A driver had discovered discarded fireworks inside and law enforcement sources told ABC News the gunpowder had been removed from the cartridges.

Elsewhere, I’ve seen it claimed that Tamerlan worked for Gerry’s Italian Kitchen at the time.

I’m really intrigued by this possibility — particularly since it looks like a mob killing more than an Islamic extremist one. But I also think it’s possible that the brothers’ DNA was at the scene because they, as friends, had been there. And what do authorities mean when they say their phones “put them in the area”? Is Cambridge the area, or just the Waltham neighborhood? Finally, while authorities might be really pushed to implicate Dzhokhar as well as Tamerlan, the piece notes that up to now they’ve believed there was just one killer.

They’ve got a real incentive to implicate Dzhokhar, who is around to be tried, unlike Tamerlan. So it’s worth being skeptical about his implication, at least.

Wearing makeup to your militia debut

There are a number of interesting details about what FSB is saying about Tamerlan’s trip to Russia (such as in this article; also note, as far as I can tell, FSB is baby-sitting the FBI agents working this case, so it’s important to remember much of this is being seen through their eyes).

But I’m particularly interested in this description of Tamerlan showing up in what I’ll call jihad disguise, which made actual Salafists worried he would attract attention.

Mr. Tsarnaev, who a year later allegedly planted the Boston Marathon bombs with his brother Dzhokhar and died after a shootout with police, got a cool reception from some of the Islamists he hoped to bond with. He greased his hair with olive oil and wore dark eye makeup, apparently in an effort to affect contemporary jihadist fashion, according to Mohamad Magomedov, who struck up a friendship with him at the mosque. Read more →

Real ID Biometrics in Immigration Bill

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I’ve got two ginormous issues with the report that the Immigration Bill includes a measure that would require the creation of a “photo tool” database to verify status before employment.

The immigration reform measure the Senate began debating yesterday would create a national biometric database of virtually every adult in the U.S., in what privacy groups fear could be the first step to a ubiquitous national identification system.

Buried in the more than 800 pages of the bipartisan legislation (.pdf)  is language mandating the creation of the innocuously-named “photo tool,” a massive federal database administered by the Department of Homeland Security and containing names, ages, Social Security numbers and photographs of everyone in the country with a driver’s license or other state-issued photo ID.

Employers would be obliged to look up every new hire in the database to verify that they match their photo.

First, this would accomplish precisely what Real ID would accomplish, but less.

I’ve long believed we were going to go to Real ID in any case. I’ve also long believed that we ought to change the politics of such a discussion by proposing that along with Real ID, we also get universal registration. The authoritarians would thus have a choice: give up their efforts to disenfranchise the poor via voter ID and track employment, or lose both.

I’m guessing it’d present quite a dilemma for the authoritarians.

But to learn a bipartisan bill is basically ceding on real ID without using it to foster democracy?

My other problem has to do with the certainty that this would be turned into a counterterrorism tool. Recall that last year, John Brennan decided protecting US person data was just too tough, so National Counterterrorism Center would have to have access to any federal database that NCTC deemed to have terrorism information.

I think it highly likely that NCTC would deem a database of all Americans to contain terrorist information.

Therefore, we should assume that whatever else this database is supposed to do, it would also mean that the faces of innocent Americans would start getting included in the data analysis of potential terrorists.

Mind you, the authorities claim (though I’m not convinced) that they weren’t able to ID the Tsarnaev brothers with all the images they had of them at the Boston Marathon. Maybe the technology sucks (again, not convinced).

But that doesn’t stop the inclusion of all Americans in the dataset of possible terrorist mugshots from being an invitation for witch hunts.