Don't Bash Russian Intelligence

Media commentary concerning the heads-up Russia gave the FBI concerning Tamerlan Tsarnaev's ties to Islamic militants is unequivocal:. "If only Russia had disclosed more about his extremist contacts and actions, the FBI might have been able to stop the Boston Marathon bombing." Russia let us down, or so the story goes.

This picture is incomplete, naïve, and deters future Russian counterterrorism alerts. This carping should stop. We should thank the Russians for what they did provide, not disparage them for withholding further information. Russian "exposure" of a United States diplomat as a "spy" may be payback for carping over its Tsarnaev intelligence.

The "Russia let us down" story is problematic. First, we do not know what data or information Russia provided to the FBI, nor what data Russia "failed" to provide. Second, we do not have the context FBI personnel had when it determined no action could be taken. Was this one of numerous Russian leads, or a relatively unique warning? If the former, it would need to be treated like similar leads; if the latter, perhaps it merited alarm within the FBI. Or did the FBI read the Russian warning as an effort to encourage the US to intimidate a Chechen Muslim sympathizer in a contentious internal dispute?

It is not easy to assess the intelligence community's performance. Intelligence gathering and dissemination is not a scientific endeavor with altruistic motives, but a subjective art form. It fulfills political goals to catalog data, identify threats, and recommend action. Remember the U.S. intelligence failings on 9/11, when several pieces of data indicated an imminent attack? The failure was in the bureaucratic structure, which was unable to use data to identify the threat and recommend counteraction. That failure came from departments within one government working ineffectively against the threat.

As for the Boston terror attack, we cannot expect that our intelligence officials can work in lock-step with other governments to eradicate global terrorism at the flip of a switch. After all, a decade's work has gone into trying to clean up our intelligence shop. Intelligence from foreign governments is just another variable to consider when preparing informed intelligence briefings. Any information, regardless of the source, is and should be scrutinized for its authenticity, and fit into the context of a current or prospective terror alert or investigation.

We don't learn from our successes, we learn from our failures. Perhaps there are lessons for us from Boston, but delegation of our intelligence apparatus to foreign governments should not be one of them. Only our intelligence officers work to protect our national security. No nation will reveal intelligence to a foreign country, even its closest of allies, if doing so will dry up its intelligence sources, divulge its techniques for gathering the information, or put an asset in mortal danger. In addition, secret wiretapping or other surveillance will activate the alarms of civil liberties activists (yes, even within Russia). Certainly governments can cooperate where objectives overlap, but governments cannot defer to a government whose territory is thought to have spawned the threat.

So it was the FBI's job to deal with the Tsarnaev lead, using its contextual expertise and the tools at its disposal. Did it do so? Again, we on the outside looking in cannot tell whether the FBI did all it could or should have done, or whether it dropped the ball. That is an inquiry best left to internal assessments and Congressional oversight. Tsarnaev was interviewed, but we do not know if he was electronically monitored after the lead came in. Processes under the Foreign Intelligence Surveillance Act require the FBI to obtain judicial approval for such monitoring. Was a FISA intercept request made? If not, why not?

Beyond surveillance, what else could the FBI do? Surely not "enhanced interrogation" of Tsarnaev. Doing this to legal resident aliens or citizens within the United States would produce a political firestorm. Likewise, physical surveillance may not have been justified. Nor do acquaintances interviewed since the bombing seem to have seen this coming, even in the final days before the tragedy.

Maybe naïve attribution of Russian malice did no harm. Unfortunately, I doubt that is the case; those who provided leads to the US will consider the drubbing they got this time when they consider whether to provide intelligence the next time. Though it is tempting to cast blame when a terrorist attack succeeds, the bigger picture demands we resist the temptation. We should be more circumspect.

Professor Charles Shanor teaches national security law at Emory Law School and is the author of Counterterrorism Law (Foundation Press, 2011)