The FBI's Paranoia And Incompetence Threatens Free Speech

from the too-much-to-ask-an-investigative-agency-to-do-any-investigating dept

Fri, Mar 13th 2015 6:27am — Tim Cushing

The FBI's paranoia and bumbling ineptitude will make criminals of us all.

The trial of Boston Marathon bombing suspect Dzhokar Tsarnaev is underway and the government's witness -- FBI special agent Steven Kimball -- pinpointed a background photo's location as one place only to have the defense point out it was actually a completely different location.

“You said the picture [that forms the background of the second account] was a picture of Mecca,” said Conrad, towards the end of a lengthy and tense cross-examination.

“Yes, to the best of my knowledge,” answered Kimball.

“Did you bother to look at a picture of Mecca?” Conrad shot back.

“No.”

“Would it surprise you to learn that it is a picture of Grozny?”

The picture on the account is not of Mecca – the FBI had misidentified it. It is in fact a picture of the Akhmad Kadyrov Mosque in Grozny.

It got worse from there. Much worse. The government cherry-picked a number of posts from Tsarnaev's social media accounts in an attempt to portray him as a violence-prone radical. The problem was that no one involved in this "investigative" process actually performed anything approaching an investigation.

[P]erhaps the most damning tweet of all those shown by the prosecution... read, in Cyrillic: “I shall die young.”

[I]t became clear through Conrad’s questioning that Kimball had made little effort to discover the context of the tweets; he admitted at one point that he had not even clicked on some of the links they contained. One of the links was to the Russian pop song that contained the “I shall die young” lyric.

Other posts shown by Kimball yesterday turned out to be jokes from the Comedy Central television show Tosh.o, or sketch comedy duo Key and Peele.

At one point, Kimball misidentified a quote as having been made by the radical al -Qaida-affiliated cleric Anwar al-Awlaki. It was actually a quote from the Qu’ran.

The defense discovered through cross-examination that Agent Kimball had simply been fed a list of supposedly-damning social media posts by the prosecution team. And between the prosecutors and the FBI, apparently not a single person could be bothered to perform a minimum of due diligence. Instead, their carefully composed collage, "Tsarnaev the Radicalized," disintegrated under the minimal weight of the defense's questioning.

Now, think of what this means for anyone who might post song lyrics, quotes from books or anything else that might catch an investigator's eye. Turns out that even having "nothing to hide" is still plently reason to fear.

Outside of the Boston bombing trial we have reason to be troubled by law enforcement’s approach to online speech. In the wake of the shooting of two NYPD officers by a lone gunman who had posted on Instagram his plan to “put wings on pigs,” a number of individuals were arrested for posting allegedly threatening anti-police sentiments online. The logic is flawed: Just because a cop killer did post anti-police messages does not mean every similar social media post should be treated as a precursor to a cop killing. Such an approach problematically criminalizes speech, which, even if ostensibly violent, should be protected.

When it comes to connecting the dots after the fact, even innocuous social media postings can take on a menacing appearance when viewed by investigators looking to paint someone as threatening and dangerous. The government already does this -- turning rap lyrics into crimes in and of themselves and pursuing prosecution for verbalizing depraved and violent thoughts.

In its rush to turn Tsarnaev into a more monstrous person than he already appears to be, the FBI's investigators made this part of its investigation a mere formality -- and proved itself to be the home of incredibly dangerous fools.

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Filed Under: boston marathon bombing, dzhokar tsarnaev, fbi, free speech, rap lyrics, social media, steven kimball

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Just Another Anonymous Troll, 13 Mar 2015 @ 6:45am

If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.
-Cardinal Richelieu
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Baron von Robber, 13 Mar 2015 @ 6:55am

Gee, hope no cops get a copy of Ice-T's Cop Killer.
/rolleyes
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Anonymous Coward, 13 Mar 2015 @ 6:58am

Pure laziness
It's the same lazy attitude they display toward getting warrants, or wanting backdoors in encryption. Apparently doing actual investigative work is some 20th century relic, so why should they have to put out any effort when they have all this technology to do work for them.
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Anonymous Coward, 13 Mar 2015 @ 7:03am

Re: Pure laziness
so why should they have to put out any effort when they have all this technology to do work for them.

Their actual use of technology is pretty poor, they cannot even use Google to identify the location of a picture.
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David, 13 Mar 2015 @ 7:09am

This is really, really bad news for global mass surveillance
Basically, the point that is being made here is that a reasonable prevention of terrorist acts needs staff that are versed in interpreting the results of eavesdropping and/or media grabs in a proper cultural context.

It needs to get filtered through capable humans. That means that all that spionage is only useful for addressing English-speaking terrorists from an American background as long as the parties looking through the material are primarily CIA and NSA.

That's not really overly relevant for terrorist prevention, it is more for domestic crime solving.

But arguing around the Constitution is rather less workable when talking about domestic mass surveillance.

There is no real alternative to relying on foreign intelligence cooperation. And the KGB (or what it is currently called) did explicitly warn the CIA about the Tsarnaev brothers. But why bother with that if one has so much better tools available than the Russian hicks?

So we get a full demonstration here that mass intelligence gathering does not work. The really embarrassing thing is that the FBI could not even afford consulting with "specialists", namely people able to recognize the cultural context of statements, in the aftermath of catching a suspect. If they don't even have enough experts to spare any for prosecution, that does not look all that bright for prevention at all.
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Richard (profile), 13 Mar 2015 @ 7:18am

Surely they are trying to prove the wrong thing!
Why are they trying to prove he is a radical?

The point here is surely to prove that he was responsible for the bombing.

That should be a matter of witness statements and forensic evidence surrounding the event itself.
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Anonymous Coward, 13 Mar 2015 @ 7:18am

The FBI bosses should be the ones on trial (along with the CIA) for repeatedly ignoring the FSB's many warnings that Tsarnaev was a known terrorist -- apparently believing that the US had nothing to fear from Chechen terrorists because their violence would be directed exclusively against Russia (which was presumably something to be encouraged).

And yet they have the chutzpah to say they never saw it coming. The FBI's level of incompetance is so unbelievable that it would almost seem like the FBI actually wanted that bombing to happen. (such terrorist acts would, of course, result in a bigger budget and better 'job security' for the FBI)
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Anonymous Coward, 13 Mar 2015 @ 7:20am

"Kimball misidentified a quote as having been made by the radical al -Qaida-affiliated cleric Anwar al-Awlaki. It was actually a quote from the Qu’ran"

Well, Kimball had a huge problem here. If he googled the quote in order to check it then he would be seen to be searching for "radical" extremist material. And he knows that happens to people who do that.

Chilling effects ripple everywhere.
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Anonymous Coward, 13 Mar 2015 @ 7:22am

Re: Surely they are trying to prove the wrong thing!
"The point here is surely to prove that he was responsible for the bombing. "

He already admitted he did it (his defence attorney said in court that he did it). They have air time to fill and media to whip up.
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Ninja (profile), 13 Mar 2015 @ 7:23am

and proved itself to be the home of incredibly dangerous fools.

Fools? I try everyday not to fall into the conspiracy lunacy field but it's getting increasingly more difficult. Are they really fools or this is just them testing the waters to see where they need to erode next to get people in jail based solely on their say so in the future? I think we are the fools now, thinking there is any protection from our increasingly totalitarian Governments - note the plural, the US is not alone in the West.

We are fast approaching Orwell. And many people are helping with their prudishness and entitlement to not seeing what they don't agree with. By the time they disagree it will be too late.
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Shufflepants, 13 Mar 2015 @ 7:29am

Re: Surely they are trying to prove the wrong thing!
Why attack the facts when you can attack the man and get a jury to make a conviction based on ad hominem?
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Anonymous Coward, 13 Mar 2015 @ 7:33am

Re: Surely they are trying to prove the wrong thing!
That's standard strategy for prosecutors. They don't just want to show that a person committed an illegal act, they want to paint that person as the epitome of pure evil, and instill emotions like hatred and fear in the jury (while the defense tried to do the opposite). Because emotions trump logic in most people, that's what court attorneys will always focus on. It's why the grieving family members of the dead victim always get trotted out to the jury, despite having absolutely nothing to do with any relevant facts in the case. And acting skills such as crying on the witness stand especially helps nail a conviction.
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Anonymous Coward, 13 Mar 2015 @ 7:35am

Just like "red light cameras" & drone murders,
Totally automated "enforcement".
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Anonymous Coward, 13 Mar 2015 @ 7:36am

Re:
I don't think we are approaching Orwell. I think we are transitioning into Orwell. It will not be long before we are Full Orwell.
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Anonymous Coward, 13 Mar 2015 @ 7:41am

Since when has a king needed to justify declaring someone a criminal? They would not be kings without God's blessing, and why would God let them lie?

In other words, I think that our federal government has a serious case of tyranny in the following two ways.

1) The gov't used a terrible and tragic act of terrorism to create a system that allows for the persecution, and prosecution of others for its own sake, just like a monarch.
It does not matter how guilty (Tsarnaev) or innocent (Snowden) they are, what they want to do is being to point the finger without having to explain it except in the broadest most convenient terms.

2) Based on my point above, and their behavior the past decade I can only conclude that out of the Monarchs the feds have chosen to emulate, they've gone with Joffrey Baratheon, first of His Name.
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DannyB (profile), 13 Mar 2015 @ 7:45am

Re: It's All Google's Fault!
It's All Google's Fault!

If Google would have come forward to help the FBI, at Google's own expense, and without being asked by the FBI, then this would not have happened.

Something must be done. Terrorists. Etc.

:-)
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DannyB (profile), 13 Mar 2015 @ 7:49am

Re: Just like "red light cameras" & drone murders,
Isn't totally automated enforcement the holy grail?

That way government employees can get back to what it important*.

Brain implants would be greatly helpful. Detect thought crime. Automatically charge your credit card whenever you hear anything copyrighted. Short of that, at least require TVs to be 'smart' TVs with cameras and audio pickups in every home to help detect crimes.

* watching pr0n on the taxpayer's backs
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John Fenderson (profile), 13 Mar 2015 @ 7:50am

Re: Surely they are trying to prove the wrong thing!
This. This "fight against radicalization" has me powerfully concerned. Nations that purport to be free have no business attempting to suppress or punish speech and thought.
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tqk (profile), 13 Mar 2015 @ 7:54am

Re: Pure laziness
Apparently doing actual investigative work ...

Not even that. In all the time they had it, and all the text processing juju the TLAs have, none of it mentioned that quote was from the Koran?

They try to handwave incompetence, and they're not Jedi.
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Anonymous Coward, 13 Mar 2015 @ 7:59am

Re:
I think part of the problem based on other news stories is that they misspelled the older brother's name in their databases, including the no fly list. Had it been spelled correctly they wouldn't have allowed the older brother back into the country. The younger brother, the one on trial, seemed to have become radicalized only very recently before the attack.
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Anonymous Coward, 13 Mar 2015 @ 7:59am

"Don't be too proud of this technological terror you've constructed."
- D Vader

Seems like the Terror in this case was poorly constructed. It could be completely obliterated by a pair of well-aimed proton torpedoes. Looks like they needed to do a little more research...
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boomslang, 13 Mar 2015 @ 8:09am

Clarification
Under the Federal Rules of Evidence, the prosecution cannot just say, "here are some tweets". A fact witness is needed to offer foundation in order to admit the tweets as evidence, i.e., the FBI agent is merely a vessel through which the prosecution can admit these tweets as evidence.

Pursuant to the confrontation clause of the Sixth Amendment, the defense gets to attack the prosecution—via the vessel of the FBI agent—for introducing the tweets.

Basically, it looks like the prosecution pulled an FBI agent "off the street" and put him on the stand just to submit these tweets with the hope of making Tsarnaev look bad...but they didn't prep the FBI officer very well. Then when the defense got its turn to attack, what we have is a situation where a very well-prepared defense is up against a very poorly prepared FBI agent. Majority of the blame probably falls on the prosecution, not the agent.
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Anonymous Coward, 13 Mar 2015 @ 8:27am

At one point, Kimball misidentified a quote as having been made by the radical al -Qaida-affiliated cleric Anwar al-Awlaki. It was actually a quote from the Qu’ran.
In all fairness, it would not be surprising to learn that at some point al-Awlaki did speak whatever quote from the Qu'ran they're talking about. Radical religious leaders selectively quoting the scriptures of their religion to help garner followers for their cause is nothing new.
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Anonymous Coward, 13 Mar 2015 @ 8:52am

oh-oh. I just checked YouTube. Ke$sha's song "die young" has 88 million views. Oh wait- it's ok, she's white.
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John Fenderson (profile), 13 Mar 2015 @ 9:04am

Re: Clarification
"Majority of the blame probably falls on the prosecution, not the agent."

I don't think anyone is blaming the agent specifically for this, but the FBI. Which, in my opinion, is the correct entity to blame.
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Anonymous Coward, 13 Mar 2015 @ 9:10am

Re: This is really, really bad news for global mass surveillance
It's worse then what you described.
The xenophobic mentality of the alphabet soup agencies is an actual hindrance in hiring/recruiting the people with these skills. They 'know' for example you can't trust someone who has read the Koran. Heaven forbid you went to one of those terrorist generators to study the culture.
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David, 13 Mar 2015 @ 9:12am

Re: Re:
Well, I can't tell man from pig and pig from man already. Nobody fought or voted for that.
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Ned Ludd, 13 Mar 2015 @ 9:14am

You've Always Suspected It
Now we know that the quality of an FBI investigation is on par with that of a bunch of anonymous reddit posters sitting in their mom's basement. Maybe even less so since at least the people on reddit know how to click links.
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John Fenderson (profile), 13 Mar 2015 @ 9:22am

Re: Re: This is really, really bad news for global mass surveillance
And the xenophobia cuts both ways. I know that when I trust people who have worked for federal law enforcement or intelligence agencies less than I trust others. It's unfair, but I tend to assume that if they're OK with working for agencies that have a certain attitude then it means that they are likely to have that attitude as well. This has affected hiring decisions I've made in the past.
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Anonymous Coward, 13 Mar 2015 @ 9:32am

Re: Surely they are trying to prove the wrong thing!
Why are they trying to prove he is a radical?

The point here is surely to prove that he was responsible for the bombing.
Yes. But no.

First the “yes” part: During the guilt phase of this trial, the government carries the burden of proving Mr Tsarnaev's guilt beyond a reasonable doubt.

I have been following the trial closely, and I will tell you that not only does the government seem likely to meet their burden of proof, but that Mr Tsarnaev's defense team is not really contesting the issue. In short, the jury is gonna find the defendant guilty. With good reason.

So, now the “no” part: The government is asking for the death penalty. So, there will be a second, penalty phase to this trial. All the maneuvering during the guilt phase of this trial is just preparation for the real action during the penalty phase.

That's why the government is already trying to show that Mr Tsarnaev is irredeemable, incorrigible.
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Kenneth Michaels, 13 Mar 2015 @ 9:48am

We are already all criminals
One study estimates that every person in the US (who is not in bed all day) commits three felonies a day:

http://www.forbes.com/sites/booked/2010/07/16/booked-harvey-silverglate-on-three-felonies-a-day/
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Richard (profile), 13 Mar 2015 @ 10:05am

Re: Re: Surely they are trying to prove the wrong thing!
Yes but no but yes.

Well they are trying to prove something that is hard to even define - so no wonder they are having trouble.

The government is asking for the death penalty.

The government is trying to prove that they are no better than him.
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DogBreath, 13 Mar 2015 @ 10:06am

Time to vet the vetters
Because if you don't, this is what happens when you do an agency transfer from County Agent to FBI Agent.

Here is Kimball, hard at work, in his former job.
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David, 13 Mar 2015 @ 10:06am

Re: You've Always Suspected It
No, the quality of an FBI investigation is less than that of a bunch of anonymous reddit posters sitting in their mom's basement because a vested interest in the Quran is not a disqualifying factor for the latter occupation.
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Richard (profile), 13 Mar 2015 @ 10:09am

Re: Re: Surely they are trying to prove the wrong thing!
This "fight against radicalization" has me powerfully concerned. Nations that purport to be free have no business attempting to suppress or punish speech and thought.

and I agree.

If they really want to fight radicalisation it has to be done in the sphere of ideas - by more speech - not by curtailing speech.

However I suspect that they don't really want to do it - because it is far too useful as an excuse for doing the things that they really want to do anyway.
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tqk (profile), 13 Mar 2015 @ 10:22am

Re:
I've done better than this with procmail scripts splitting incoming mail into separate mailboxes (or round-filing it). Certainly calling "koran_search() $parameter" isn't quite rocket science. They can't use the tools they have.

That's photon torpedoes, btw.
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boomslang, 13 Mar 2015 @ 10:23am

Re: Re: Clarification
We don't even know if the FBI was the agency that got the tweets. The prosecution lawyers were probably the ones who cherry-picked tweets. It's not like you have to hack into a computer or hold someone at gun point to find publicly available tweets.
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Jay Lahto (profile), 13 Mar 2015 @ 10:26am

Donk-Donk.
This is an episode of Law & Order that we'll never see. Nobody would ever have believed the FBI could be so incompetent.

It's as inconceivable as someone breaking into the White House.
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Anonymous Coward, 13 Mar 2015 @ 11:28am

Re: Re:
No, it's definitely proton torpedoes.
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Anon, 13 Mar 2015 @ 11:34am

The real reasons
You haven't seen anything yet... Reason doesn't work the way we thought it does:

https://www.youtube.com/watch?v=PYmi0DLzBdQ

The (mass surveillance) by the NSA and abuse by law enforcement is just more part and parcel of state suppression of dissent against corporate interests. They're worried that the more people are going to wake up and corporate centers like the US and canada may be among those who also awaken. See this vid with Zbigniew

Brzezinski, former United States National Security Advisor.

https://www.youtube.com/watch?v=Ttv6n7PFniY

Brezinski at a press conference

https://www.youtube.com/watch?v=0kmUS--QCYY

The real news:

http://therealnews.com/t2/

http://www.amazon.com/Democracy-Incorporated-Managed-Inverted-Totalit arianism/dp/069114589X/

http://www.amazon.com/Shadow-Government-Surveillance-Security-Single-Superpow er/dp/1608463656/

http://www.amazon.com/National-Security-Government-Michael-Glennon/dp/0190206446/

Lo ok at the following graphs:

IMGUR link - http://imgur.com/a/FShfb

http://www2.ucsc.edu/whorulesamerica/power/wealth.html And then...

WIKILEAKS: U.S. Fought To Lower Minimum Wage In Haiti So Hanes And Levis Would Stay Cheap

http://www.businessinsider.com/wikileaks-haiti-minimum-wage-the-nation-2011-6

https://www.youtub e.com/watch?v=hnkNKipiiiM

Free markets?

https://www.youtube.com/watch?v=WHj2GaPuEhY#t=349

Free trade?

https://www.youtube.com/watch?v=Ju06F3Os64

http://www.amazon.com/Empire-Illusion-Literacy-Triumph-Spectacle/dp/1568586132/

"We now live in two Americas. One—now the minority—functions in a print-based, literate world that can cope with complexity and can separate illusion from truth. The other—the majority—is retreating from a reality-based world into one of false certainty and magic. To this majority—which crosses social class lines, though the poor are overwhelmingly affected—presidential debate and political rhetoric is pitched at a sixth-grade reading level. In this “other America,” serious film and theater, as well as newspapers and books, are being pushed to the margins of society.

In the tradition of Christopher Lasch’s The Culture of Narcissism and Neil Postman’s Amusing Ourselves to Death, Pulitzer Prize-winner Chris Hedges navigates this culture—attending WWF contests, the Adult Video News Awards in Las Vegas, and Ivy League graduation ceremonies—to expose an age of terrifying decline and heightened self-delusion."

Important history:

http://williamblum.org/

https://www.youtube.com/watch?v=OcA1v2n7WW4#t=2551

America in the Technetronic Age 1968

https://docs.google.com/viewer?url=http://64.62.200.70/PERIODICAL/PDF/Encounter-1968jan/18-29/&c hrome=true

search document for 'control' to help find.

Page 21 "At the same time, the capacity to assert social and political control over the individual will vastly increase. As I have already noted, it will soon be possible to assert almost continuous surveillance over every citizen and to maintain up-to-date, complete files, containing even most personal information about the health or personal behaviour of the citizen, in addition to more customary data. These files will be subject to instantaneous retrieval by the authorities."

"Moreover, the rapid pace of change will put a premium on anticipating events and planning for them. Power will gravitate into the hands of those who control the information, and can correlate it most rapidly."

http://www.amazon.com/Between-Two-Ages-Americas-Technetronic/dp/0313234981

They want to try and maintain social and political control during this period of increasing global change.
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Personanongrata, 13 Mar 2015 @ 1:29pm

Keystone
FBI special agent Steven Kimball makes Barney Fife look good.

Does --not so-- special agent Kimball only get one bullet for his gun too?
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Anonymous Coward, 13 Mar 2015 @ 3:25pm

Re:
There's some speculation that the Tsarnaevs were actually FBI informants at one point - if true it would make sense for them to deflect as much attention onto the suspects as possible.
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k-h, 13 Mar 2015 @ 6:49pm

They should have just let FBI agent Aaron McFarlane interview him. Then they would have had no need for a trial.
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Anonymous Coward, 13 Mar 2015 @ 9:24pm

Everything you say on Facebook and Twitter, can and will be used against you in a court of law. Which includes taking everything to say and presenting it out of context. Glad I post anonymously.
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JMT (profile), 13 Mar 2015 @ 11:05pm

Re: Surely they are trying to prove the wrong thing!
The trail isn't really about whether he's guilty; there's not much debate on that. It's about what he gets after being found guilty: life or death.
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Pragmatic, 16 Mar 2015 @ 7:24am

Re: Re: Pure laziness
Now repeat after me: Due process is not an impediment to justice.

When they've got that through their thick skulls perhaps we'll get some actual justice instead of, "But we all know he's guilty so just hang him, already!"
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Pragmatic, 16 Mar 2015 @ 7:26am

Re: This is really, really bad news for global mass surveillance
So what you're effectively saying, David, is that American exceptionalism let two bombers attack us?

[Sad But True]
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Pragmatic, 16 Mar 2015 @ 7:28am

Re: Re: Surely they are trying to prove the wrong thing!
Because many of our compatriots have abandoned reason in favor of subjectivism.
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Pragmatic, 16 Mar 2015 @ 7:32am

Re: Re: Surely they are trying to prove the wrong thing!
Oh, I wouldn't be so sure, AC. We don't live in a vacuum and coping with bereavement is bad enough what with planning the funeral, etc., without having the added stress of knowing how the victim suffered if he or she was murdered.

That the families suffer as a result of the crime committed against the victim is in fact relevant to the case, not just an opportunity to whip up a jury.
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Pragmatic, 16 Mar 2015 @ 7:34am

Re: Re: Surely they are trying to prove the wrong thing!
So they're trying to reduce the number of likely protests if he gets the death penalty. Got it.
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John Fenderson (profile), 16 Mar 2015 @ 8:43am

Re: Keystone
Perhaps, but he's an FBI agent so unlike Barney Fife, he might actually get to keep the bullet in the gun.
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tqk (profile), 16 Mar 2015 @ 9:36am

Re: Re: Re: Surely they are trying to prove the wrong thing!
In theory, it's to dissuade copycats, not protests. Note, the Chinese don't care what you say online as long as you're not trying to start a demonstration. Perhaps this's the same thing.
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