What we might learn in US v. Tsarnaev—and what we probably won't

Details: Category: Boston Bombings; Published on Sunday, 08 March 2015 18:29

Privacy SOS
March 6, 2015

I appeared this morning on DemocracyNow! to discuss US v. Tsarnaev, and the recent filing of a $30 million lawsuit against the FBI by civil liberties organization CAIR over the FBI's May 2013 killing of Tamerlan Tsarnaev associate Ibragim Todashev.

Unfortunately, time didn't permit me to get into some of the more important questions related to the Todashev killing, the FBI's knowledge of Tamerlan Tsarnaev, or the bizarre circumstances surrounding the government's flip-flopping about the two men's involvement in a gruesome triple murder in 2011.

Among those questions are the following. Click on the hyperlinked text to read longer explorations of these issues.

Did the FBI try to cultivate Tamerlan Tsarnaev as an informant back in 2011, before the Waltham murders? If not, why not, as Senator Chuck Grassley asked FBI Director James Comey in October 2013? Why didn't the FBI recognize Tamleran in images it found of the brothers in the aftermath of the bombings? After all, the FBI office in Boston investigated Tamerlan on suspicion of terrorism for at least three months in early 2011.

Was Tamerlan Tsarnaev involved in the September 2011 triple murder in Waltham, Massachusetts? In May 2013, just weeks after the Boston bombings, officials leaked information to the press alleging that they had forensic evidence and cell phone location records tying Tsarnaev to the Waltham crime scene, casting him as a central suspect. Just weeks after this news, two Massachusetts State Troopers and a Boston based FBI agent, Aaron McFarlane, traveled to Florida to interview Tsarnaev associate Ibragim Todashev about his involvement in those murders, alongside Tamerlan.

After McFarlane killed Todashev by shooting him seven times—including three times in the back and once in the top of the head—the FBI told the public that the deceased was in the process of penning a confession implicating himself and the elder Tsarnaev in the grisly 2011 killings when he flipped out and attacked the agent. Why, then, did the DOJ in May 2014 tell a federal court that it had "no evidence" of Tamerlan's involvement in the Waltham murders, beyond the Todashev 'confession'?

The FBI and state troopers supposedly went down to Florida to interrogate Todashev about his role in the murders, which officials apparently suspected he committed alongside Tsarnaev, but when pressed to provide information about the Waltham investigation to the public defenders representing Dzhokhar, the feds suddenly threw up their hands and claimed they had none. What's the deal with this flip-flop? What was the true purpose of the interrogation in Florida if the feds had no evidence to show Tamerlan Tsarnaev—and thereby Ibragim Todashev—was involved in the triple murder? Why did the feds proceed to deport most of the people close to Todashev after his killing? Is this an example of extreme government incompetence, or a cover-up?

Why did the FBI hire Aaron McFarlane, a man who faced two brutality suits and four internal affairs investigations during his four year stint as an Oakland police officer? Though he has worked for the FBI for years, McFarlane reportedly continues to receive disability payments of over $50,000 per year from the taxpayers of Oakland. The Boston based agent has thus far been paid over half a million dollars in this tax free income, despite the fact that his supposed disability hasn't prevented him from working for the FBI. Was the FBI aware of the brutality suits and internal affairs complaints against McFarlane when it hired him? Was it aware that he was receiving annual disability payments from the City of Oakland, even though he was apparently fit to work as an FBI agent?

Finally, the DOJ and FBI have stated in open court that they do not know who built the bombs that exploded at the Boston Marathon, or where they were built. Will this issue come up in the trial? Is there an active investigation to discover who is responsible for creating these deadly weapons?

It's not clear that answers to these questions will emerge in the guilt phase of the trial in US v. Tsarnaev. Thus far it appears as if the defense strategy has little to do with challenging the government's narrative of events, and squarely focuses on humanizing their client, who they have admitted was involved in the attacks. But the public might, at the very least, get a window into the issues related to Tamerlan Tsarnaev when the defense presents mitigating evidence in the sentencing portion of the trial, where they have much broader latitude to discuss the older brother's role in shaping Dzhokhar's outlook and actions.

The question of whether Tamerlan was involved in the Waltham slayings is particularly prescient for the American public. If he was, it's yet more evidence that routine criminal investigation—figuring out how dead bodies got cold—is the best approach to protecting public safety, not dragnet surveillance. As Edward Snowden has said, the NSA and FBI were busy monitoring you and me in 2011, 2012, and 2013, but they completely missed Tamerlan Tsarnaev, someone the feds themselves had investigated for terrorist ties, and possibly even tried to cultivate as an informant.

Regardless of what new information emerges during the trial, one thing is clear: Mass surveillance doesn't stop horrific terrorist attacks. And despite the FBI's claims, it isn't even key to figuring out who is responsible for them afterwards. Nothing we learn in the Tsarnaev trial will change that basic fact.

This article first appeared at Privacy SOS and is Copyright 2015, American Civil Liberties Union of Massachusetts. Reprinted with permission of the American Civil Liberties Union of Massachusetts. http://www.aclum.org

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