Why the FBI, White House Will Face Hard Questions About Their Boston Bombing Interviews

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Peter van Agtmael / Magnum for TIME

Bystanders gather as authorities move into the hiding place of Dzhokar Tsarnaev several blocks away on Franklin Street in Watertown, Mass., on April 19, 2013

The FBI and the Obama Administration will face hard questions in coming days over interviews with the alleged perpetrators of the Boston Marathon bombings, one with the surviving suspect now in custody and another with his now deceased older brother that took place two years ago.

After a four-day manhunt that ended with the death overnight Thursday of Tamerlan Tsarnaev and the capture Friday night of his younger brother Dzhokhar, Boston’s relief had not even dissipated before Washington’s debates kicked in. “We remain under threat from radical Islam and we hope the Obama Administration will seriously consider the enemy-combatant option,” said GOP Senators Lindsey Graham and John McCain, referring to their preference that Dzhokhar, an American citizen, not be read Miranda rights or given the right to counsel.

The Administration has preferred to try terror suspects in civilian, Article 3 courts and abide by their rules, especially when dealing with American citizens. Obama suggested the Justice Department and the FBI would have the lead, rather than the military, in detaining, interrogating and trying Dzhokhar. “It’s important that we do this right,” Obama said in a statement released late Friday. “That’s why we have investigations. That’s why we relentlessly gather facts. That’s why we have courts,” Obama said.

(PHOTOS: Joy and Relief in Boston After Bombing Suspect’s Arrest)

In fact, the FBI doesn’t immediately need to read Dzhokhar his Miranda rights. Under the “public-safety” exception, cops can interrogate a suspect about imminent threats for some time before reading them their rights. One recent precedent came with the arrest of Umar Farouk Abdulmutallab, the so-called underwear bomber, who was interrogated for several hours without being read his rights. Also, Democrats will no doubt remind their GOP critics that British citizen Richard Reid, the “shoe bomber,” was tried in Article 3 courts by the Bush Administration.

The bigger problem for the administration comes not from the current interviews with Dzhokhar, but with the interviews conducted two years ago with his now deceased brother, Tamerlan. Since he was identified as a suspect Thursday, there were already indications circulating in the media that Tamerlan had embraced Islamic extremism. But Friday night we learned that the FBI had actually been warned of his increasingly dangerous ideological bent by a foreign government and had investigated the matter.

In a statement released late Friday, the FBI said:

2011 Request for Information on Tamerlan Tsarnaev from Foreign Government.

The two individuals believed to be responsible for the Boston Marathon bombings on Monday have been positively identified as Tamerlan Tsarnaev, now deceased, and Dzhokhar Tsarnaev, now in custody. These individuals are brothers and residents of Massachusetts. Tamerlan Tsarnaev was a legal permanent resident and Dzhokar Tsarnaev is a naturalized U.S. citizen. Charges have not yet been filed against Dzhokar Tsarnaev and he is presumed innocent.

Tamerlan Tsarnaev, age 26, was previously designated as Suspect 1, wearing a black hat. Dzhokar A. Tsarnaev, age 19, was designated as Suspect 2, wearing a white hat. Both were born in Kyrgyzstan.

Once the FBI learned the identities of the two brothers today, the FBI reviewed its records and determined that in early 2011, a foreign government asked the FBI for information about Tamerlan Tsarnaev. The request stated that it was based on information that he was a follower of radical Islam and a strong believer, and that he had changed drastically since 2010 as he prepared to leave the United States for travel to the country’s region to join unspecified underground groups.

In response to this 2011 request, the FBI checked U.S. government databases and other information to look for such things as derogatory telephone communications, possible use of online sites associated with the promotion of radical activity, associations with other persons of interest, travel history and plans, and education history. The FBI also interviewed Tamerlan Tsarnaev and family members. The FBI did not find any terrorism activity, domestic or foreign, and those results were provided to the foreign government in the summer of 2011. The FBI requested but did not receive more specific or additional information from the foreign government.

There’s a lot of information there that will get sorted through, like the indication of databases kept by the government for the purposes of data mining green-card holders (and American citizens?). But the ultimate fight between the Hill and the FBI, or perhaps the GOP and the White House, will hinge on how and why the FBI decided to conclude from their searches that Tamerlan wasn’t connected to international terrorism.

(VIDEO: President Obama: Bombers’ ‘Hateful Agenda’ Will Not Prevail)

Under the Foreign Intelligence Surveillance Act (FISA) and the Patriot Act, in order to unlock powerful surveillance and investigative tools the FBI must show probable cause that an individual is engaged in international terrorist acts on behalf of a terrorist group. The foreign government seemed to believe that Tamerlan was. Did they supply sufficient evidence for the FBI to meet a FISA court judge’s standard of probable cause? Was the FBI going the extra mile to meet the probable-cause test?

Initially it doesn’t look good for the FBI. The definition under FISA of international terrorist acts is that they must:

… transcend national boundaries, in terms of the means by which they are accomplished, the person they appear intended to coerce or intimidate, or the locale in which the perpetrators operate or seek asylum.

The classic example, experts say, of operating internationally is training in an al-Qaeda camp in the Pakistani hinterlands. To be sure, to get a FISA warrant the standard is higher for American citizens and green-card holders (like Tamerlan) — the FBI has to show the suspect is knowingly engaging in international terrorism or preparing for it on behalf of a terrorist group. If the suspect isn’t a citizen or green-card holder, then you just have to show the suspect is a member of terrorist group.

But FISA court judges don’t often reject warrant requests. And if the foreign government thought or knew that Tamerlan was traveling abroad to associate with “underground groups,” that could have been enough. Which raises the question how hard, if at all, the FBI and prosecutors in Boston tried to get a FISA warrant.

Even as he enjoys the cheers of Bostonians for his successful apprehension of Dzhokhar Tsarnaev, FBI special agent in charge Richard DesLauriers, who took over the Boston office in 2010, may be preparing for tough questions about his past oversight of the Tsarnaev family.

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