Tsarnaev: Right to Counsel, Not Miranda, Is the Key

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LadyJusticeWithScalesSince Dzhokhar Tsarnaev was taken into custody just over a week ago, the hue and cry in the public and media discussion has centered on “Miranda” rights and to what extent the “public safety exception” thereto should come into play. That discussion has been almost uniformly wrongheaded. I will return to this shortly, but for now wish to point out something that appears to have mostly escaped notice of the media and legal commentariat – Tsarnaev repeatedly tried to invoke his right to counsel.

Tucked in the body of this Los Angeles Times report is the startling revelation of Tsarnaev’s attempt to invoke:

A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule. The exemption allows defendants to be questioned about imminent threats, such as whether other plots are in the works or other plotters are on the loose.

Assuming the accuracy of this report, the news of Tsarnaev repeatedly attempting to invoke right to counsel is critically important because now not only is the 5th Amendment right to silence in play, but so too is the right to counsel under both the 5th and 6th Amendments. While the two rights are commonly, and mistakenly, thought of as one in the same due to the conflation in the language of the Miranda warnings, they are actually somewhat distinct rights and principles. In fact, there is no explicit right to counsel set out in the Fifth at all, it is a creature of implication manufactured by the Supreme Court, while the Sixth Amendment does have an explicit right to counsel, but it putatively only attaches after charging, and is charge specific. Both are critical to consideration of the Tsarnaev case; what follows is a long, but necessary, discussion of why.

In fact, “Miranda rights” is a term that is somewhat of a misnomer, the “rights” are inherent in the Constitution and cannot be granted or withheld via utterance of the classic words heard every day on reruns of Law & Order on television. Those words are an advisory of that which suspects already possess – a warning to them, albeit a critical one.

In addition to being merely an advisory of rights already possessed, and contrary to popular belief, advising suspects of Miranda rarely shuts them down from talking (that, far more often, as will be discussed below, comes from the interjection of counsel into the equation). As Dr. Richard Leo has studied, and stated, the impact of Miranda on suspects’ willingness to talk to interrogators is far less than commonly believed. One study has the effect rate of Miranda warnings on willingness to talk at 16%; from my two plus decades of experience in criminal defense, I would be shocked if it is really even that high.

On top of this fact, the Miranda warnings relate only to the admissibility of evidence or, rather, the inadmissibility – the exclusion – of evidence if it is taken in violation of Miranda. Professor Orin Kerr gives a great explanation here.

Since there is, without any real question, more than sufficient evidence to convict Tsarnaev without the need for admissibility of any verbal confession or other communicative evidence he may have provided the members of the HIG (High Value Detainee Interrogation Group), the real Read more →

CIA Bags O’ Cash Total Tens of Millions of Dollars, But Over $4.5 Billion Left Afghanistan in 2011

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Today’s New York Times carries a frank exposure of blatant moves by the CIA to curry favor with Hamid Karzai and high ranking members of Afghanistan’s government through direct cash payments brazenly dropped off at Karzai’s office:

For more than a decade, wads of American dollars packed into suitcases, backpacks and, on occasion, plastic shopping bags have been dropped off every month or so at the offices of Afghanistan’s president — courtesy of the Central Intelligence Agency.

All told, tens of millions of dollars have flowed from the C.I.A. to the office of President Hamid Karzai, according to current and former advisers to the Afghan leader.

Perhaps the most disturbing aspect of these cash payments is that they seem to have been designed in large part to pay off Afghan warlords:

Moreover, there is little evidence that the payments bought the influence the C.I.A. sought. Instead, some American officials said, the cash has fueled corruption and empowered warlords, undermining Washington’s exit strategy from Afghanistan.

And it’s not just any warlords who are being funded by this cash. We learn in the article that the current corruption pay for Rashid Dostum, who committed the largest single war crime in the Afghan war, is now $80,000 per month.

And in the funding of warlords, keep in mind that they form the backbone of David Petraeus’ Afghan Death Squads Local Police under the “direction” of US special operation forces and the CIA. After particularly egregious behavior by one of these groups earlier this year, Karzai first expelled US special forces from Maidan Wardak province and then eventually backed off somewhat on that move. Today’s article suggests that Karzai is trying to play a major role in controlling these groups. Given the main topic of the article, we are left to presume that Karzai’s control is through the allocation of these CIA funds:

Now, Mr. Karzai is seeking control over the Afghan militias raised by the C.I.A. to target operatives of Al Qaeda and insurgent commanders, potentially upending a critical part of the Obama administration’s plans for fighting militants as conventional military forces pull back this year.

Although an off the books cash influence-buying program that has totaled tens of millions of dollars over the course of a decade sounds like a huge scandal, this is chump change compared to the real theft of US funds in Afghanistan. The Special Inspector General for Afghanistan Reconstruction noted in the January, 2013 report (pdf) that huge sums of cash exit Afghanistan through the Kabul airport:

The U.S. government has long had serious concerns about the flow of cash out of the Kabul International Airport. According to the Congressional Research Service, some $4.5 billion was taken out of Afghanistan in 2011.

Where does all this cash come from? The largest flow of money into Afghanistan of course comes from the US and the biggest program we fund there supports Afghan security forces:

The Congress created the Afghanistan Security Forces Fund (ASFF) to provide the ANSF with equipment, supplies, services, and training, as well as facility and infrastructure repair, renovation, and construction.

Here is a figure from the SIGAR report showing how lavishly the ASFF has been filled with US funds: Read more →

When a Counter-TerrorismNarcotic Partner Asks for a Divorce

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Dana Priest has a fascinating piece ostensibly describing how the administration of Mexican President Enrique Peña Nieto has chosen to shift its counter-narcotic approach from the one Felipe Calderón’s PAN party had pursued for a decade. About 12 of the article’s 60-some paragraphs describe first how, in a scene reminiscent of Bob Woodward’s account of Michael Hayden and others briefing Obama on the national security programs they assumed he’d retain after he took over the presidency, the US presented the existing US-Mexican counter-narcotics programs to Peña Nieto’s team.

In a crowded conference room, the new attorney general and interior minister sat in silence, not knowing what to expect, next to the new leaders of the army, navy and Mexican intelligence agency.

In front of them at the Dec. 15 meeting were representatives from the U.S. Drug Enforcement Administration (DEA), the CIA, the FBI, the Office of the Director of National Intelligence and other U.S. agencies tasked with helping Mexico destroy the drug cartels that had besieged the country for the past decade.

The Mexicans remained stone-faced as they learned for the first time just how entwined the two countries had become during the battle against narco-traffickers, and how, in the process, the United States had been given near-complete entree to Mexico’s territory and the secrets of its citizens, according to several U.S. officials familiar with the meeting. [my emphasis]

Priest then notes, at the end of the story, that Mexico had ejected the US personnel who had been working in fusion centers in Mexico.

But the Mexican delegation in Washington also informed U.S. authorities that Americans will no longer be allowed to work inside any fusion center, including the one in Monterrey. The DEA agents and retired military contractors there will have to go.

But the guts of the story replicate work Priest did with the Top Secret America series and book (and perhaps, given that the program ostensibly deals with Mexican rather than US security, offers even more detail), laying out precisely what we were doing in Mexico, from drones to electronic surveillance and data analysis to personal direction of raids. She describes a number of approaches here that are presumably replicated in or borrowed from counterterrorism operations, which makes the article an interesting reflection of both.

This description of the way Mexico controls drones, for example, reinforces questions I’ve had about the Saudi drone base we use to target Yemen.

An agreement was reached that would temporarily give operational control to Mexican authorities during such flights. U.S. pilots sitting in the States would control the planes remotely, but a Mexican military or federal police commander would be able to direct the pilot within the boundaries of a Mexico-designated grid.

Here, though, are two of my favorite details.

[Mexico’s intelligence service] CISEN discovered from a captured videotape and a special analytical group it set up that some of the cartels had hired former members of the U.S.-trained Guatemalan special forces, the Kaibiles, to create sociopathic killers who could behead a man, torture a child or immerse a captive in a vat of acid.

Anxious to counterattack, the CIA proposed electronically emptying the bank accounts of drug kingpins, but was turned down by the Treasury Department and the White House, which feared unleashing chaos in the banking system.

This has been reported elsewhere, but it’s important to remember the lethal cartels we’re fighting in Mexico arose, in part, out of training we did that is not that different from what Priest describes here. Blowback, baby.

Then there’s Treasury’s concerns about chaos in the banking system if the US were to mess with drug accounts. We know drug money served as a key revenue source for shaky banks during the financial crisis. And we know the government gave HSBC a wrist-slap rather than indictments after discovering the vast amounts of money laundering it was facilitating. One reason Latin American leaders are increasingly choosing a different approach to combat drugs is that under the current plan, the money ends up in the US, while the violence largely remains in their countries.

There are a few details of Priest’s piece that deserve some challenge, though. Read more →

Feinstein Calls for Review of Her Moratorium on Release of Yemeni Prisoners from Gitmo

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Finally sensing that US policy on Yemeni prisoners at Guantanamo is a disaster of epic proportions, and after playing a key role in putting the moratorium on release of Yemeni prisoners into place, Dianne Feinstein on Thursday took the first step toward trying to resolve the crisis before hunger striking prisoners begin to die in large numbers. Feinstein penned a letter to National Security Director Tom Donilon on Thursday, asking for renewed efforts to release those Guantanamo prisoners who have been cleared for release. It is clear that a central step in that process is to review the moratorium on release of cleared Yemeni prisoners.

There is a craven semantics game that is played in the arena of prisoners who have been cleared for release. Government and military officials only ever refer to “detainees” who are cleared for “transfer”, even when those prisoners have been completely cleared of any wrong-doing. Because of that semantics problem, the Guantanamo Review Task Force final report (pdf), issued in January of 2010, provides a muddled description of two groups of Yemeni prisoners who are cleared at various levels for release:

Falling into the category of those who really should be released outright, but classed in the report as “Detainees Approved for Transfer”, we see 29 from Yemen:

29 are from Yemen. In light of the moratorium on transfers of Guantanamo detainees to Yemen announced by the President on January 5, 2010, these detainees cannot be transferred to Yemen at this time. In the meantime, these detainees are eligible to be transferred to third countries capable of imposing appropriate security measures.

A second category of Yemeni detainees cleared for release are those that the government believes still warrant some sort of detention in Yemen. They appear in the category “Detainees Approved for Conditional Detention”:

30 detainees from Yemen were unanimously approved for “conditional” detention based on current security conditions in Yemen.

The status of these prisoners is described further:

After carefully considering the intelligence concerning the security situation in Yemen, and reviewing each detainee on a case-by-case basis, the review participants selected a group of 30 Yemeni detainees who pose a lower threat than the 48 detainees designated for continued detention under the AUMF, but who should not be among the first groups of transfers to Yemen even if the current moratorium on such transfers is lifted.

These 30 detainees were approved for “conditional” detention, meaning that they may be transferred if one of the following conditions is satisfied: (1) the security situation improves in Yemen; (2) an appropriate rehabilitation program becomes available; or (3) an appropriate third-country resettlement option becomes available. Should any of these conditions be satisfied, however, the 29 Yemeni detainees approved for transfer would receive priority for any transfer options over the 30 Yemeni detainees approved for conditional detention.

About that “moratorium” on release of Yemeni prisoners. The review task force report informs us that of 36 Yemeni detainees initially cleared for full release, one was released by court order in September 2009 and another six were released in December 2009. But then the Undie Bomber episode took place on Christmas Day of 2009, and the release of Yemeni prisoners somehow became politically impossible. From the review report: Read more →

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?

Tamerlan Tsarnaev Placed in Database Perceived as Weak, Even by DHS

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As the blame game starts on the Boston Marathon bombing, someone (maybe a blabby Senator?) made it public that the CIA asked to have Tamerlan Tsarnaev added to the Terrorist Identities Datamart Environment (TIDE) database last year.

The CIA asked the main U.S. counterterrorism agency to add the name of one of the suspected Boston Marathon bombers to a watch list more than a year before the attack, according to U.S. officials.

The agency took the step after Russian authorities contacted officials there in the fall of 2011 and raised concerns that Tamerlan Tsarnaev — who was killed last week in a confrontation with police — was seen as an increasingly radical Islamist and could be planning to travel overseas. The CIA requested that his name be put on a database maintained by the National Counterterrorism Center.

That database, the Terrorist Identities Datamart Environment, or TIDE, is a data storehouse that feeds a series of government watch lists, including the FBI’s main Terrorist Screening Database and the Transportation Security Administration’s “no-fly” list.

Officials said Tsarnaev’s name was added to the database but it’s unclear which agency added it.

We got a look at the TIDE database last year when Tom Coburn reviewed whether fusion centers do useful work. Here’s what that report said about TIDE:

While reporting information on an individual who is listed in the TIDE database sounds significant, the Subcommittee found that DHS officials tended to be skeptical about the value of such reporting, because of concerns about the quality of data contained in TIDE.156

156 Although NCTC describes its TIDE database as holding information on the identities of known and suspected terrorists, DHS officials – who interacted with TIDE data on a daily basis, as they reviewed reporting not only from state and local law enforcement encounters but from encounters by DHS components – said they found otherwise. “Not everything in TIDE is KST,” DHS privacy official Ken Hunt told the Subcommittee, using a shorthand term for “known or suspected terrorist.”

“Would you buy a Ford?” one DHS Senior Reports Officer asked the Subcommittee staff during an interview, when he was asked how serious it was for someone to be a match to a TIDE record. “Ford Motor Company has a TIDE record.”

[snip]

Ole Broughton headed Intelligence Oversight at I&A from September 2007 to January 2012. In an interview with the Subcommittee, Mr. Broughton expressed the concern DHS intelligence officials felt working with TIDE data. In one instance, Mr. Broughton recalled he “saw an individual’s two-year-old son [identified] in an [Homeland Intelligence Report]. He had a TIDE record.” Mr. Broughton believed part of the problem was that intelligence officials had routinely put information on “associates” of known or suspected terrorists into TIDE, without determining that that person would qualify as a known or suspected terrorist. “We had a lot of discussion regarding ‘associates’ in TIDE,” Mr. Broughton said.

[my emphasis]

This is not to say that Tamerlan shouldn’t be in TIDE.

Rather, it says there’s so much other crap in TIDE, that it isn’t perceived as very useful — at least not by the people at DHS the Permanent Subcommittee on Investigations interviewed.

This is the problem with overcollection of data: it adds a bunch more hay to the haystack for the time you want to start looking for a needle.

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.