ANALYSIS: Former Sen. Joe Lieberman suggests AG guidelines may have “constrained” FBI from investigating Tamerlan Tsarnaev more aggressively

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Former Sen. Joseph Lieberman suggested that the FBI may have been less aggressive in their 2011 investigation of Tamerlan Tsarnaev due to the Justice Department’s guidelines for domestic FBI operations.

“Were the original FBI interviews of Tamerlan Tsarnaev adequate to determine whether he was likely to radicalize to violent Islamist extremism? Was the FBI investigation curtailed by existing Attorney General guidelines on such investigations, which go back to the previous administration?” Lieberman posed to lawmakers on the House Committee on Homeland Security. “I hope you’ll go back and speak with the FBI, the Attorney General’s office, take another look at those Attorney General guidelines to see if in any way they constrained the FBI from acting more aggressively or sharing the information with the state and local law enforcers.”

The FBI investigated Tamerlan Tsarnaev in 2011 after receiving information from Russian intelligence about Tamerlan’s alleged link to religious extremists. The FBI interviewed Tsarnaev and his family as well as reviewed his communications and online usage and travel history but “did not find any terrorism activity, domestic or foreign.” The FBI’s request for more information went unheeded by the Russian government.

Rick DesLauriers, the Special Agent in Charge of the FBI’s Boston division, insisted that “the Tsarnaev assessment was thorough, comprehensive, and fully compliant with law and policy.”

DesLauriers explained that the FBI is “limited in the types of investigative methods that can be utilized in an assessment” to protect an individual’s constitutional rights.

The Attorney General’s guidelines for domestic FBI operations prohibit assessments “pursued for frivolous or improper purposes” or based “solely on First Amendment activity or on the race, ethnicity, national origin, or religion of the subject of the assessment, or a combination of only such factors.The guidelines were last revised during the Bush administration under then-Attorney General Michael Mukasey.

The 2008 Mukasey guidelines allowed the FBI to carry out assessments to “detect, obtain information about, or prevent or protect against federal crimes or threats to the national security or to collect foreign intelligence” of an individual without “any particular factual predication” that a criminal act is about to occur. This is intended to allow the FBI to be more proactive in preventing or “detecting and interrupting criminal activities” in their early stages.

However, given that no factual indication of imminent crime is needed to conduct an assessment, the Mukasey guidelines limits the FBI to use only methods “of relatively low intrusiveness.” The methods authorized include checking publicly available information, government records – including databases maintained by the FBI, Justice Department, other federal, state, and local government agencies as well as foreign governments, interviewing or requesting information from members of the public, and even obtaining grand jury subpoenas for phone or email records.

But to conduct a full investigation, the FBI would need to provide an “articulable factual basis of possible criminal or national threat activity”. In other words, the FBI would need to uncover substantial indication that a crime was about to be committed in order to open a full investigation. This requirement is intended to protect Americans’ civil liberties and checking the power of the federal government from intruding into the lives of innocent Americans without just cause.

In the case of Tamerlan Tsarnaev, the FBI assessment apparently did not yield information indicating that Tsarnaev was about to commit an act of terror but the bureau tried to seek further information from the Russian government for to no avail.

By the time Tamerlan Tsarnaev returned from Russia in 2012, the FBI’s file on Tsarnaev had been closed. Reports indicate that Tamerlan had been visiting and posting jihadist contents online prior to the Boston Marathon bombings. The bombs – packed with BBs and nails – killed three people and injured more than 200 others – with dozens of the wounded requiring amputation.

Lieberman said the Justice Department’s standard for “articulable factual basis” to open an investigation is “too high” and may have deterred the FBI from sharing the information they had on Tsarnaev with local law enforcement agencies until “they had a greater level of proof of the crime that was about to be committed.”

“That’s a very high standards,” said Lieberman. “It’s so high that it probably won’t allow law enforcement to act before the crime – or in this case, the terrorist attack – occurs.”

However, civil liberties and religious groups have expressed concerns that lowering the evidence threshold would result in more profiling, spying, and harassment of Americans, particularly Muslim-Americans, based on their faith, speech, or personal beliefs.

“Muslim, Arab, Sikh and South Asian Americans are entitled to the same fundamental rights and protections guaranteed by the Constitution to all Americans,” according to the written testimony of Farhana Khera, Executive Director of Muslim Advocates, before the Senate Judiciary Committee in March 2011.

Khera, whose organization is spearheading a lawsuit to ban the New York Police Department’s “invasive and discriminatory spying” on Muslim Americans, decried the “laws and policies [that] have unfairly targeted these communities for increased questioning, searches, seizures, surveillance and other intelligence gathering and law enforcement activities.”

“As a result, today American Muslims are anxious about their future in a society that increasingly looks upon them with hatred and suspicion and that is moving away from our shared values of freedom, truth and fairness,” Khera wrote.

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