National Security Fraud?

Over at National Review online, Andrew McCarthy has an superb piece on a bit of fraud being perpetuated on the American people by the Obama Administration.  And no, he's not talking about the gun-control crusade or the green energy jobs scam.  Mr. McCarthy is referring to the administration's "investigation" of the Boston Marathon bombing, and the surviving suspect, Dzhokhar Tsarnaev.  As he describes it, recent revelations about additional plots are little more than distractions, aimed at diverting public attention away from the government's handling of the case:

Unlike you, federal government officials are immune from charges of fraud. The executive branch, vested with all of the government’s prosecutorial authority and discretion, is not going to investigate its own operatives for carrying out its own mendacious policies.

That is the story of last week’s Boston Marathon bombing and the frantic efforts of the bombers, the brothers Tsarnaev, to evade capture, shoot it out with police (one of whom they killed, and another of whom they wounded), and — we’re now told — detonate more bombs in Times Square.

The Times Square non-attack is quite interesting. The specter of it, projected in the immediate wake of the Marathon murders and maimings, is horrific . . . so horrific that the government, in leaking this tidbit from its botched interrogation of Dzhokhar Tsarnaev, knew that news media were certain to lead their broadcasts with it. The press would never wonder why they, and thus we, were being told about it.    

Mind you, there is nothing inappropriate about government officials’ speaking about matters on thepublic record — such as the allegations lodged in criminal complaints. But the Times Square non-attack is not mentioned in the complaint filed against Dzhokhar Tsarnaev. In fact, the complaint includes no information from Tsarnaev’s interrogation.

Yet somehow the airwaves are now full of startling revelations from his Miranda-aborted 16-hour post-arrest interview, including not least his confession, and, of course, his assurance, as Allah is his witness, that no one other than he and his Svengali older brother — and certainly no foreign Islamic terrorist organization — had anything to do with their terror spree.

And the reason for these machinations?  According to Mr. McCarthy--a former federal prosecutor who won convictions against jihadists in the 1993 World Trade Center attack--the Obama Administration is desperate to convince the public (and its friends in the media) that Islamic terror threats can be handled through the criminal justice system.  No need to classify the younger Tsarnaev as an enemy combatant and use intelligence interrogation methods to extract information from him.  Just read him his Miranda rights and let him stop talking--on the advice of counsel, naturally.

In his piece, McCarthy thoroughly obliterates the various arguments accompanying Team Obama's handling of the case.  For starters, he notes that the "public safety exception" that allows a slight delay in Mirandizing a suspect does not grant 48 hours of free-wheeling interrogation.  In fact, the countdown to reading a defendant his rights begins as soon as he is rendered defenseless.  So, FBI agents and intelligence operatives had a very narrow window for interrogating Dzhokhar, and it began when he climbed out of that boat in suburban Boston.  

Secondly, Mr. McCarthy observes that it was President Obama and Attorney General Eric Holder who triggered the rush to Mirandize the terror suspect.  Representatives from the U.S. Attorneys office in Boston rushed into federal court last Sunday night to file charges against Dzhokhar.  That begs a rather obvious question--why?--but it also mandated that Tsarnaev be informed of his rights.  When that federal magistrate arrived at Dzhokhar's hospital room, she was merely concluding a chain of events put into motion at the highest levels of American government.  

But the most telling bit of deception may be found in the third "rationale" offered by the Obama Administration, namely that we had gained all of the vital intelligence from Dzhokhar by the time that magistrate advised him of his constitutional rights.   

In fact, it seems rather obvious that the government is managing the entire affair to fit a certain template: the Tsarnaev brothers acted on their own; they became radicalized here in the United States, and there is no evidence of a wider conspiracy involving terrorist elements in their native Chechnya.  

So far, that effort has produced only mixed results.  While the fawning U.S. press corps is ready to report any disclosure from the administration--even those meant to mislead and distract--certain inconvenient facts keep popping up.  First of all, there are the warnings we received about Tamerlan Tsarnaev from Russian security services more than two years ago.  We have subsequently learned that the Russians notified their FBI and CIA counterparts about Tamerlan's radical activities on at least two different occasions.  FBI agents even interviewed the over Tsarnaev brother, at Moscow's request, but found nothing to suggest he had become radicalized or posed a security threat.  

Apparently, the feds never bothered to look at his social media postings, which included an assortment of jihadist videos and comments suggesting an affinity for Al Qaida.  There have also been reports that Russian security officers witnessed Tamerlan in contact with suspected terrorists on six different occasions during an extended visit to Dagestan last year.  It is unclear if that information was shared with American intelligence and the FBI and we've learned more recently that the Russians monitored phone conversations where Tamerlan vaguely discussed jihad with his mother.  They also recorded her conversations with another man in southern Russia, who is now under investigation by U.S. authorities.   Unfortunately, Moscow didn't pass along the results of its wiretaps until this week. 

That raises a very disturbing question that may explain some of the legal chicanery now on display.  Why didn't the U.S.'s vast signals intelligence (SIGINT) network detect these same calls?  The National Security Agency (NSA) doesn't rely on the Russians to monitor communications between Muslim terrorists operating in the Caucasus regions.  With its global resources, NSA and its partners are quite capable of handling the task, but there has been no confirmation that our communications intelligence (COMINT) detected these calls, let alone reported them.  

If that was the case, then the Tsarnaev case represents a major intelligence failure.  True, some calls are missed, and others are never isolated among the flood of communications intercepted by NSA each day.  But the western SIGINT community has been much more proficient at capturing, translating and analyzing terror-related communications in recent years; in fact, many of our counter-terrorism successes began with intercepted phone calls or e-mails that sent other intel operatives (and law enforcement) in the right direction.  

Based on the limited information that keeps trickling out, it seems increasingly likely that the Tsarnaev brothers were foot soldiers in a wider terrorist conspiracy, one that was probably rooted in Chechnya and Dagestan.  Putting the plan into motion required some sort of communication between Tamerlan and his handlers, but there is no record (so far) of phone calls, e-mails or other contacts that were intercepted by western intelligence.  That could indicate that the terrorists found some way to beat U.S. surveillance.  If that actually happened, the potential repercussions are positively frightening.  

On the other hand, there is the equally disturbing scenario that a probe of the Tsarnaev brothers was undone by bureaucratic bungling and political correctness.  Given Tamerlan's status as a permanent resident alien, any extended monitoring of his communications would have required a FISA warrant at some point.  Yet, there is no record the Obama Justice Department ever sought such approval, despite persistent warnings from the Russians.  Once again, the salient question is why? Did we ever pursue a FISA-approved wiretap against the Tsarnaevs and if we did, why did the bomb plot go undetected?  Or did someone at DOJ decide to give the matter a pass, fearing cries of profiling and discrimination if the surveillance effort was ever disclosed? 

If either of these explanations proves correct, then a lot of folks in the intel community and at DOJ need to be fired.  But then again, we've never been very good at holding individuals accountable, no how badly they screw up.  Not a single intel official was dismissed after 9-11, and high-level administration officials have been immune in such scandals as Fast and Furious.  

If the Boston bombings case follows a similar pattern, the future chain of events will go something                                                   

like this.  There will be a few more articles bemoaning the FBI's inability to complete its interrogation of Dzhokhar, followed by defense team leaks about prosecutors refusing to discuss a potential plea deal.  The case will eventually fade from public view until the day that Dzhokhar is scheduled to face trial.  Amid all the media speculation about defense strategies, government evidence and courthouse security, the actual trial will prove anti-climactic.  As the trial gets underway, the defendant will enter into a plea deal that spares his life--and prevents the feds from having to divulge the screw-ups that led to the terror attack--and the subsequent political maneuvering that denied the collection of needed intelligence.   

Dzhokhar will eventually emerge from federal prison in his early 50s, after completing a 30-year "life" sentence.  By that time, the masterminds of the legal fraud that Andy McCarthy describes will be dead, and their reputations firmly secured.   At that point, no one will really care about the claims of a former terrorist, convicted in a case that happened four decades earlier.  Call it the Benghazi template.  Seven months after terrorists murdered four Americans at our consulate in that Libyan city, that scandal has been apparently sealed off, behind a wall of official silence.  A similar veil is now descending on Boston, but no one seems to notice.  
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ADDENDUM:  In the past 24 hours, two respected figures in the national security establishment, former Attorney General Michael Mukasey, and Representative Mike McCaul, Chairman of the House Homeland Security Committee, have suggested that others were involved in the marathon bombings.      

Appearing on "Fox News Sunday," Mr. McCaul  said he believes the Tsarnaev were "trained" to carry out the attack, and their mother played a key role in their radicalization.  McCaul said that assessment is based (in part) on the sophistication of their pressure cooker bombs.  In a separate interview with the network, Mr. Mukasey offered similar thoughts saying the belief the bombers followed instructions from the internet "doesn't do it" for him.  He also suggested that Dzhokhar Tsarnaev could still be questioned for intelligence purposes and that information could be "kept separate" from criminal proceedings.  

Excellent idea, but the odds of that happening are approximately zero.  Just ask President Obama, or Eric Holder.