CNN reported the request to investigate Tsarnaev, who died during last week's manhunt in Watertown, Mass., came from the FSB, which is the post-Soviet successor to the KGB, and that it is "rare" for a Russian intelligence agency to ask the FBI to look into an individual. However, the former counterterrorism executive we spoke with, described it as a "very common" occurrence.
"It's not that rare at all," the former counterterrorism executive said. "The FSB is part of the counterterrorism working group and they very commonly will send over requests via phone or via email. ... Those requests are not that uncommon between the FBI, particularly the FBI headquarters counterterrorism division and the FSB at the Russian Embassy."
The Counterterrorism Working Group is a program coordinated by the State Department and its counterparts in Russia to have agencies in both countries "cooperate closely on law enforcement matters." Through the working group, there are annual, in-person meetings between FBI and FSB personnel. The former FBI counterterrorism executive we spoke with participated in those meetings and "dealt quite a bit with the Russian government" including taking a trip to Moscow.
While these tips are common, the former FBI executive told us agents need to be "cautious" and take information from foreign governments about people living in the United States with "a grain of salt."
"Generally speaking, certain foreign governments try to keep track of their expatriates, especially those who are outspoken on human rights issues," the former executive explained. "Countries will submit names to us and will say, you know, this guy's a bad guy, a terrorist, or a drug trafficker, or whatever. And what you have to be careful about is, you may be being used as a proxy by a foreign government or a foreign intelligence agency to keep track of or to report back on their expatriate community in the United States. Their intent may not be as straightforward as determining whether or not they're a terrorist or not."
According to a statement released by the FBI on Friday, the bureau did follow up on a tip it received from a "foreign government" that Tsarnaev was a "follower of radical Islam" who was planning to travel abroad to "join unspecified underground groups." FBI officials later acknowledged the "foreign government" was Russia. The FBI's statement said agents "interviewed Tamerlan Tsarnaev and family members" and "did not find any terrorism activity, domestic or foreign." After those interviews, the FBI said it provided the results of the investigation to Russia and "requested but did not receive more specific or additional information from the foreign government."
The former counterterrorism executive who talked to TPM explained the FBI operates under two sets of guidelines outlining what is legal in these types of investigations -- one from the attorney general and the other from the FBI Domestic Investigations and Operations Guide, or DIOG for short. These guidelines specify the investigative measures that may be taken in response to various types of evidence and are designed to address legal and civil liberties concerns. While the attorney general's guidelines are fairly broad, the DIOG is extremely specific about what it permits.
"You have to treat it almost like an anonymous tip, so everything starting from the ground up, you have to look at what you can look at within the legal policy rules. There needs to be something you discover, either in a police report, or in a blog, or somebody's social networks, or some other piece of information that's concerning to then allow you to justify that next level of investigation," said the former FBI executive. "You just can't go straight to wiretaps and pulling peoples' bank account records and stuff like that. That's a much higher level of investigative authority and it's got to be justified through the information that you can determine."
The ex-FBI executive said a simple request from a foreign government would only allow a limited investigation if it did not result in further suspicious evidence.
"In that investigation, my understanding is it was what we call a guardian lead, which is probably the lowest level of investigation that can be conducted by the FBI," said the former executive. "It's pretty much limited to open records checks, interviews, if necessary, and a very, very limited amount of physical surveillance."
Because of these guidelines, the former counterterrorism executive said the FBI's claim they requested further information about Tsarnaev from Russia indicates they did all they could to legally investigate him.
"If there's nothing in the records, nothing in the social media, nothing in neighborhood canvasses that would allow you to independently justify that next investigative step, then you're pretty much stuck," said the former counterterrorism executive. "That's why they would have gone back to the Russians. ... It's really the dead end of your investigation at that point if they don't respond."
Sen. Lindsey Graham (R-SC) raised additional questions about the FBI's handling of Tsarnaev Monday when he said the bureau was unaware of a six-month trip to Russia that Tsarnaev made last year because his name was misspelled and, thus, "never went into the system." An FBI official told TPM any misspelling of Tsarnaev's name was not related to the investigation the bureau conducted in response to the Russian tip.
"The statement that the FBI issued Friday evening addressed the steps we took at the request of a foreign government. This alleged misspelling is a separate and unrelated matter," the official said. "We did what we were asked to do and the request was very routine."