grazeem Loc: Arizona

Like it or not, the FBI’s failure to continue monitoring Boston Marathon bomber Tamerlan Tsarnaev for possible terrorist activity goes back to guidelines that were created to stop the bureau’s abuses under former Director J. Edgar Hoover.
Back then, the FBI conducted surveillance of anti-government activists regardless of whether there was intelligence or other information showing that they support terrorist activity. That meant the FBI not only violated their rights, it lost its focus when it came to pinpointing real criminal activity.
As we now know, the FBI opened an investigation of Tsarnaev, the older of the two brothers who detonated bombs at the Boston marathon, after the bureau received a tip in 2011 from Russian authorities that he might be sympathetic to Islamist radical causes. The FBI found no indication that Tsarnaev might be planning terrorist activity and closed the case.
Few people are as knowledgeable about the FBI’s counterterrorism efforts as Arthur M. "Art" Cummings II, who headed FBI counterterrorism and counterintelligence investigations until 2010. Cummings put in place so-called "trip wires" that have led to roll-ups of dozens of terrorist plots. As an example, the FBI asks companies or laboratories that supply certain chemicals or biological materials to report any suspicious purchases to the FBI or police.
Cummings says that under Justice Department guidelines originally put in place after Hoover died, the FBI could not have continued to watch the older brother after finding no indication of a potential threat.
"Islamic radicals may exhibit activity across a continuum," Cummings tells me. "At one extreme, they are simply sympathetic to the jihadist movement. At the other extreme, they engage in violent militancy. If the bureau believes a person to be sympathetic but not moving across to militant, then the Justice Department guidelines, as well as the practicalities of collection and resource constraints associated with collecting against everyone sympathetic to a terrorist cause, leads the bureau to discontinue investigation. Simply put, at that point we don’t believe the person poses a threat."
Looking back, Cummings says, nothing that has come out indicates that the FBI’s assessment was wrong. The older brother subsequently spent seven months in Russia, and upon his return to Boston began assembling an online library of jihadist videos and voiced anger to neighbors about the U.S. wars in Iraq and Afghanistan.
But none of that activity crosses over the line from constitutionally protected free speech to possible criminal conduct. As Cummings points out, tens of thousands of Americans are sympathetic to the jihadist movement. About a quarter of Muslims in America ages 18 through 29 believe that suicide bombings could be justified, according to a Pew Research Center poll. And the FBI estimates up to 10 percent of the 2,000 mosques in the United States employ imams who preach jihad and extremism.
Most likely, Tamerlan Tsarnaev himself had no idea he would cross the line into terrorist activity until just before the bombing. His younger brother Dzhokhar has told the FBI they decided to detonate bombs in Times Square hours before their deadly encounter with law enforcement officers.
During an appearance at a conference in Washington, Director of National Intelligence James R. Clapper Jr. said he has seen no evidence that U.S. agencies failed. "The dots were connected," he said.
Before 9/11, because of relentless media criticism and a lack of clear authority under Justice Department guidelines, the FBI became so gun-shy and politically correct that even though terrorists were known to hatch their plots in mosques, the FBI was averse to following suspects there. Under the guidelines in place before 9/11, FBI agents could not even look at online chat rooms to develop leads on people who might be recruiting terrorists or distributing information on making explosives. The FBI had to first determine that there was a sound investigative basis before it could sign on to chat rooms any twelve-year-old could enter.
In other words, "A crime practically had to be committed before you could investigate," Weldon Kennedy, a former FBI deputy director, says. "If you didn’t have that, you couldn’t open an investigation."
Cummings credits new Justice Department guidelines developed under Attorney General Michael Mukasey in 2008 with giving the FBI the freedom it　needs to look for potential terrorists before they strike. But the guidelines do not give the FBI the authority to continue an investigation when it has found that a target is merely engaging in free speech.
Those same guidelines preclude the FBI from engaging in the kind of blanket surveillance the New York City Police Department has been employing. The New York City police are second to none, and many think its program is needed to roll up terrorist plots such as the one in Boston. What they don’t see are the specifics of that surveillance. Through the Joint Terrorism Task Force, FBI agents do. What they see has led FBI Director Robert S. Mueller III to direct agents to have nothing to do with the NYPD’s Intelligence Division.
The division has been deploying police officers to conduct blanket surveillance of mosques, Muslim-owned businesses, and left-wing meetings. The FBI believes that this aimless, unfocused surveillance which results in data being kept on innocent people is both a violation of Americans’ rights and a waste of taxpayer money, producing no intelligence of any value.
New York Police Commissioner Raymond W. Kelly has defended his agency’s practices as necessary. But while New York City has detected plots, it has not been because of these surveillance tactics, an FBI official tells me.
"The NYPD has been sending undercover operatives to political meetings," the official says. "The FBI would not be allowed to do those kinds of things. We stay away from the Intelligence Division because we know what they are doing would not pass the test with FBI oversight authorities."
Instead, "The FBI has detected attacks with cooperation from the community and good liaison with law enforcement," the agent says. "We are not engaging in that kind of aimless intelligence gathering on mosques or political meetings without a predication that terrorist activities might be involved. We can develop informants and assets, but we can’t task them to do a fishing expedition, which is what the police are doing. It’s not targeted investigation, and it risks trust and cooperation being broken. We will not be a party to it."
This should matter to New Yorkers for three reasons. When law enforcement officers engage in fishing expeditions, they often lose sight of their real purpose, which is to develop specific sources and leads to plots. At the same time, by incurring enmity among peace-loving Muslims, they discourage them from providing tips on terrorists. In fact, a number of plots have been rolled up based on tips to the FBI from Moslems. Finally, by sanctioning tactics that the FBI considers abuses, New Yorkers risk more widespread violations of their rights.
New laws and rigid oversight and guidelines put an end to FBI abuses under Hoover. Now if FBI agents violate Justice Department guidelines governing how they may conduct investigations, they could be fired or prosecuted. The problem is that no such guidelines apply to the New York City Police Department.
In the case of the Boston bombings, questions still remain about the performance of the intelligence community. But while the outcome in Boston was tragic, the existing limits on FBI powers appear to strike the right balance between the need to protect the public and the need to protect our civil liberties.
Ronald Kessler, a former Washington Post and Wall Street Journal reporter, is the author of "The Secrets of the FBI" and "In the President’s Secret Service." --


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