Beware of Easy Answers to the 'Who Dropped the Ball?' Question

Discussion of the Boston bombing case is now into full 20-20 hindsight mode trying to figure out why we did not prevent Tamerlan Tsarnaev from executing the attack when the government had been alerted to his potential radicalization two years ago. There are probably important policy lessons to be learned from this incident -- but it is far too easy for politicians and commentators to lay blame on keystone cops who shirked their responsibilities and bureaucrats who refused to share information with each other.

The reality is that an intelligence-based watch listing system is exceptionally difficult to run, seamless integration of multiple databases is unachievable, and our historical deep-rooted commitment to a free society with limited government powers makes 100 percent police-state like precision in terrorism prevention virtually impossible.

Critics of the government's handling of this case -- many of whom are not privy to all the facts about what the government has done or failed to do (which is my situation as well) -- are claiming that after the Russians tipped us off that Tamerlan might be an extremist, the government should have been tracking his every movement for two years and been able to thwart this plot. At the very least, they say, we should have started paying much closer attention to him after he traveled to Russia in 2012 and returned about nine months ago.

Let's examine this argument one piece at a time. The first issue involves how we put individuals on watch lists and what we are able to do one they are on such a list. An inquiry from a foreign government about a potential extremist inside the United States is certainly worthy of close law enforcement scrutiny. But we should keep in mind that many governments around the world may have ulterior motives in bringing information about someone to our attention. For example, before the civil war broke out in Syria, the Assad government may well have identified persons raising money for Syrian opposition groups living in the U.S. as "extremists" -- not to protect us -- but for their own political purpose.

Nonetheless, in the Tsarnaev case, the Attorney General guidelines for national security investigations would allow a "preliminary investigation" to be opened based on the information we received from Russia. This threshold allows the FBI to use almost all investigative techniques other than those that require a warrant. This is what the FBI did: interviewing the subject and family members, and checking databases, on-line activities, travel records, associations, and the like.

Some have asked why a FISA warrant was not sought to collect more intelligence -- but the answer is that without evidence that Tsarnaev was an agent of a foreign power or associated with a terrorist organization, neither the Justice Department nor the FISA court would have approved such a warrant. The key question for us is whether we want to give the government power to obtain a warrant when such evidence is lacking? Do we want to live in a society where electronic surveillance may be conducted based on the ideas or religious practices engaged in by a citizen or lawful resident alien? In making this assessment, we have to understand that if the government can spy on its citizens based on ideas rather than conduct -- it will seek information not only on followers of al Qaeda-styled Islam, but other ideas as well such as an enthusiasm for stockpiling weapons, criticism of global capitalism, opponents of U.S. foreign policy, and on and on.

The next question is why Tamerlan's travel to war-torn Dagestan in 2012 does not appear to have triggered another round of scrutiny. If it turns out that immigration officials did not notify the FBI either that he had left, or come back to the U.S., that is something that needs to be fixed. But it is worth considering how much resources and focus would have been dedicated to Tamerlan even if these notifications had been made. There are over half a million names on the broadest terrorism dataset -- the Terrorism Identities Data Environment. Since only 5 percent of them are U.S. citizens, a large percentage of these individuals may travel abroad in any given year. We dedicate a lot of resources to counterterrorism, but not enough to open a full inquiry on tens of thousands of people every time they travel.

We should also keep in mind that since the financial crisis, agency budgets are getting tighter, even in counterterrorism. It wouldn't have been so easy in the summer of 2012 for the FBI to come up with the money to send an agent to Russia to try to see if Tamerlan was consorting with radicals during his six month sojourn. Many of the FBI agents working the Boston case now would have been scheduled for furlough days in the coming months if the bombing hadn't occurred.

When we look backwards, it is easy to say -- "you had him in your sights, why didn't you do more." It is a far, far different question when there are thousands of pieces of data flowing into a system every day and your job is to figure out which of them is deserving of the limited governmental resources that are available. Chechnya is a volatile region of the world, but it is not at the top of the list of hotspots for the United States. It is very possible that even if the FBI knew that Tamerlan had returned from Russia in 2012 that it would not have followed up with an investigation or that the inquiry would have had the same result that it did in 2010 -- identifying no criminal or terrorism related activity.

We do not know all the facts at the moment and it is possible that mistakes have been made. But the hard reality is that data-driven counterterrorism is tough business. We have a huge, complicated country. People are constantly moving and changing. Behaviors that appear obviously suspicious today may have seemed innocuous a year or two ago -- even to the seasoned counterterrorism investigator. The bureaucracies dedicated to protecting us do not have unlimited resources and they are difficult to coordinate. And we properly place limits on governmental institutions so they lack the power to investigate and conduct surveillance based on thoughts and ideas rather than conduct.

Our record has been pretty good over the past decade. Perfection, however, is unobtainable.

David H. Schanzer is an associate professor of the practice of public policy and director of the Triangle Center on Terrorism and Homeland Security.  This commentary was originally published in The Huffington Post.