While campaigning against the Patriot Act in South Carolina last weekend, Rand Paul—a committed and supposedly knowledgeable civil libertarian—made a rather surprising claim. The Kentucky senator said that American law enforcement officials had "probable cause" to obtain a warrant for the arrest Boston Marathon bomber Tamerlan Tsarnaev two years before he committed that attack, after the FBI received a tip from the FSB, Russia's intelligence agency.
"Remember the Boston bombers, the Tsarnaev boys?" Paul said according to a report by Bloomberg's David Weigel. "The Russians tipped off us, we interviewed him, they could have arrested him, but I certainly think we had probable cause. Had I been the judge and they called me I would have said, hell yes, look at his record. Hell yes, look at his travel plan."
Paul's point was that traditional law enforcement methods are much more effective than those authorized by the Patriot Act. The problem is that his statement was simply false. Not only did American authorities lack "probable cause" to arrest Tsarnaev based on the information provided by the Russians, they didn't even have "reasonable suspicion" to launch a full investigation. Paul is either badly misinformed, or he's endorsing much lower constitutional standards for arrest and surveillance.
The FBI "certainly could have done a better job monitoring him, but there don't appear to be sufficient grounds for an arrest," says Andrew McCarthy, a former federal prosecutor. "This is a recurring problem with Rand: he throws around legal terms -- 'probable cause,' 'general warrant,' etc. -- but he really does not grasp what they mean."
According to a report on the Boston Marathon bombing by the Inspectors General for the Intelligence Community, Central Intelligence Agency, Department of Justice, and Department of Homeland Security, the Russian tip and subsequent assessment by the FBI did not provide sufficient information to establish "reasonable suspicion" that Tsarnaev was a "known or suspected terrorist."
The report states that the Russian FSB informed the FBI in 2011 that Tamerlan Tsarnaev and his mother were "adherents of radical Islam, and that Tamerlan Tsarnaev was preparing to travel to Russia to join unspecified 'bandit underground groups' in Dagestan and Chechnya." That information alone "wasn't enough," a senior federal agent told the DOJ's inspector general, so the FBI sent the Russians two more letters requesting more information. They did not receive a reply.
Legal guidelines limited the FBI "to relatively unintrusive methods such as consensual interviews and database checks in an assessment," the report notes. Without reasonable suspicion that Tsarnaev was a known or suspected terrorist, federal agents were unable to "use more intrusive methods such as obtaining judicial search warrants and FISA orders to conduct electronic surveillance in a full investigation."
Tsarnaev and his parents agreed to a voluntary interview with a federal agent, but that interview and other research the FBI was legally allowed to conduct failed to establish reasonable suspicion for a full investigation. The report faulted counterterrorism investigators for failing to request interviews with some Tsarnaev associates and to conduct a follow-up interview after Tsarnaev traveled to Russia in 2012, but there's no way to know if conducting those interviews would have ever led to information that would have led to his arrest.
So does Paul disagree with the investigative standards applied by the FBI? Does he really believe a U.S. person of Chechen descent may be arrested whenever Russia's spy agency--the successor to the KGB--alleges that person is a radical Muslim preparing to join unnamed "bandit underground groups"? Tsarnaev was a legal permanent resident, but there "is no difference between citizens and lawful permanent residence – or any other Aliens – when it comes to what probable cause means," says Andrew McCarthy. So if Paul thinks this vague tip from the Russians was enough to arrest Tsarnaev, he would also have to believe that it would be enough to arrest a U.S. citizen.
I asked Paul's spokesman Tuesday afternoon by email what crime Paul thinks Tsarnaev should have been charged with in 2011, but his spokesman has not replied.
It's not inherently hypocritical to strongly defend civil liberties while thinking that foreign intelligence agencies may provide information that could lead to the arrest of an American, but it's remarkable that Paul doesn't express concern about how Russia's spy agency obtained information about U.S. persons in the first place.
As libertarian GOP congressman Justin Amash of Michigan told me Sunday evening, "You shouldn't be allowed to collect something through a foreign government that you can't collect here." So did the Russians obtain this information in a way that American counterintelligence agents could have legally done so, or by listening into phone calls or reading emails between Tsarnaev and other U.S. persons? This is a question that seems not to have crossed Paul's mind as he uses the Boston bombing to rail against the Patriot Act. The inspector general report merely states that "Russian authorities provided personal information about both Tamerlan Tsarnaev and Zubeidat Tsarnaeva, including their telephone numbers and e-mail addresses."
It's true enough that the Patriot Act and the NSA's metadata program did not stop the Boston terror attack. That says something about America's intelligence capabilities, but it isn't a strong argument against the Patriot Act. If anything, the facts surrounding the Boston Marathon bombing undercut Paul's claim that the Patriot Act is being used to trample on the civil liberties of Americans.
The inspectors general report contains a brief, heavily-redacted section on information obtained from the NSA about Tsarnaev in 2012--the year he was overseas. "This information was not accessed and reviewed until after the bombings," the report states. If American authorities were unable to access this information, listen to Tsarnaev's phone calls, or read his emails after receiving a tip from the Russians that he was about to join "bandit underground groups" in Chechnya, doesn't that suggest that the civil liberties of average Americans are rather well protected?
Is there more to this story?
