The imperative of transparency as Boston Bombing probe takes a fatal turn
Ingrid Burke, RAPSI
On May 22, the FBI Boston Division released a somewhat nebulous statement announcing that a “shooting incident involving an FBI special agent” had occurred early that same morning in Orlando. Without mentioning the names of any of those involved in the incident, the statement explained that during the course of an interview connected with the pending Boston Marathon bombing investigation, the interviewee had initiated a violent confrontation, adding that: “During the confrontation, the individual was killed and the agent sustained non-life threatening injuries.”
Early reports claimed that the interviewee, named as Ibragim Todashev – a 27-year-old US green-card holder of Chechen origin – had been somehow acquainted with deceased Boston Marathon bombing suspect Tamerlan Tsarnaev, 26. Tsarnaev was killed in a police shootout following the April 15 Boston Marathon bombing, where twin explosions near the finish line left three dead and upwards of 200 injured. Tamerlan’s younger brother Dzhokhar, 19, was captured wounded but alive, and ultimately charged with using a weapon of mass destruction on US soil resulting in death, and with malicious property destruction by means of an explosive device resulting in death.
If convicted, Dzokhar faces the death penalty, or imprisonment for life or any number of years.
Then on May 29, a more substantive – relatively speaking – follow-up statement issued by the FBI’s National Press Office identified Todashev by name and outlined an action plan for its pending review of the incident: “The FBI is conducting a review of the May 22, 2013 shooting of Ibragim Todashev, 27, which occurred at Todashev’s residence… The FBI’s shooting incident review team interviews witnesses and gathers information regarding the shooting incident for presentation to a Shooting Incident Review Group (SIRG), which consists of members from the FBI and the Department of Justice. The SIRG examines all of the information and determines the reasonableness of the application of deadly force in accordance with the Department of Justice’s deadly force policy and the law.”
The statement closed with the FBI’s assurance that shooting incidents such as this are taken very seriously, “and as such, we have an effective, time-tested process for addressing them internally. The review process is thorough and objective and conducted as expeditiously as possible under the circumstances.”
As time passes and new details of the incident continue to emerge, however, it is becoming all too clear that this time-tested internal process may not pass muster under the steadily accumulating pressure driven by mass-curiosity over what exactly happened that night.
Challenging the official version
The Florida division of Islamic advocacy group the Council on American-Islamic Relations (CAIR) filed a complaint Saturday with the Civil Rights Division of the US Department of Justice (DOJ) calling for an “independent, thorough and transparent investigation… into the FBI’s shooting of Ibrahim Todashev after several hours of interrogation at his home.”
According to a copy of the complaint obtained by RAPSI, the organization represents Todashev’s family in seeking a response to three core issues: “First, it is essential that information be released both to the family and to the public regarding the continuous investigation of Mr. Todashev and the events leading to his untimely death. Secondly, a specific inquiry is necessary to determine if law enforcement’s investigative procedures violated Mr. Todashev’s constitutional rights under the Fourth, Fifth and Sixth Amendment. Lastly, your Division should determine whether the agents involved used excessive force.”
The Boston Globe likewise reported Tuesday that the American Civil Liberties Union (ACLU) is keeping an eye on the case. The news agency quoted Senior Policy Counsel Michael German of the ACLU Washington Legislative Office as having stated: “We’re concerned, like many other groups, about the way this story has changed… What we’d like to see is an independent and transparent investigation into what happened in this case.”
RAPSI will explore some of the legal questions raised by the case momentarily. First, let’s take a look at the tangled web of details that presently constitutes the story of Todashev’s demise.
So, what happened?
In the words of the CAIR complaint, “[w]hile the official version of events changes daily, it appears that an unarmed Mr. Todashev was fatally shot at least seven times, including once in the head.”
Anyone who has closely followed the case can attest that the story has tended over the past couple of weeks to change course at a merciless pace, particularly at the hands of officials speaking with major media outlets on the condition of anonymity. The plotline remains as murky as it does dramatic, having been replete with bizarre plot twists and props ranging from broomsticks to samurai swords.
The Associated Press (AP) cited three anonymous law enforcement officials in a report published the evening of the shooting as having initially claimed that Todashev had lunged at the special agent with a knife. Later that day, however, two of these officials reportedly backtracked – stating that the situation was no longer clear.
Citing anonymous law enforcement sources of its own, The Washington Post reported May 30 that Todashev had in fact been unarmed at the time of the shooting. One of the Post’s sources claimed that Todashev had lunged at an FBI agent and had overturned a table, but that he had not been armed with either a gun or a knife. A second source reportedly echoed the claim that Todashev had been unarmed. One of the Post’s sources claimed that one FBI agent was alone in the room with Todashev when things got out of hand, as the other law enforcement officials present had stepped out of the room.
Yet another anonymous source – this one described as a senior law enforcement official – told The New York Times (NYT) that Todashev had begun work on a written confession admitting his involvement in a 2011 triple homicide in the presence of the FBI agent and a Massachusetts detective . The agent then reportedly looked away when suddenly Todashev threw a table at him. As the story goes, the detective was wounded and knocked over, and then pulled his gun as he rose to his feet. At that point, Todashev was said to have begun running toward the agent with what may have been either a metal pole or a broomstick. By this account, even gunfire didn’t stop Todashev, who charged once again after being shot. At this point, according to the NYT source, the agent fired several shots, ultimately killing Todashev.
Then on May 30, Todashev’s father stated during a press conference in Moscow that his son had been killed by a gunshot that had been fired at his head at point-blank range. Showing reporters photographs of what he claimed to be his son’s corpse, riddled with bullets, the elder Todashev explained, “He was questioned for eight hours…
Then they shot him, six times in the body and once in the head.” At the press conference, Todashev speculated as to what could have inspired the authorities to shoot his son in the back of the head, but did not explicitly blame anyone involved for intentionally killing his son. He did not, on the other hand, stop short of accusing them of banditry: “They are bandits, not FBI agents.”
Todashev’s constitutional rights
The CAIR complaint addressed Todashev’s rights in accordance with the fourth, fifth, and sixth amendments to the US Constitution. These amendments as a whole serve to protect the rights of individuals somehow implicated in or suspected of criminal activities.
The Fourth Amendment prohibits unlawful searches and seizures and imposes a narrowly tailored warrant requirement. According to its text: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Fifth Amendment establishes a range of rights for individuals implicated in criminal cases. Among these is the requirement that a Grand Jury indictment or presentment must be present before a civilian in ordinary circumstances can face conviction for serious crimes: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger.”
The Fifth Amendment provides for the right against self-incrimination: “nor shall [any person] be compelled in any criminal case to be a witness against himself,” as well as for due process rights: “nor [shall any person] be deprived of life, liberty, or property, without due process of law.”
The Sixth Amendment provides for the right of the criminally accused to a fair and timely public trial: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
Reasonable and excessive force policies
According to the FBI’s website, “FBI special agents may use deadly force only when necessary—when the agent has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the agent or another person. If feasible, a verbal warning to submit to the authority of the special agent is given prior to the use of deadly force.”
The CAIR complaint didn’t explicitly state which laws or policies should be referenced in encouraging the DOJ’s Civil Rights Division to pursue an investigation into the use of excessive force. However, the Division’s website explains that excessive force falls under the types of misconduct covered by the US federal law on the deprivation of rights under the color of law. Acts carried out under the “color of law” refer to acts committed by persons using the power given to them by a government agency, even if in doing so they are not acting within the scope of their official authority.
The text of the law itself refers to the commission of such acts when motivated by the person’s status as an alien, or by his race or color. The Division, however, notes explicitly that: “Enforcement of these provisions does not require that any racial, religious, or other discriminatory motive existed.”
The law stipulates the following punishments in the case of the victim’s death: “if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.” The Division only mentions fines and imprisonment as punishment options, however.
In other words, there are options in the US justice system in case the worst is confirmed. As the case remains veiled in mystery, however, it is difficult to say with any degree of certainty whether and how Todashev’s rights were violated. Between the official press releases that have tended toward epitomizing vagueness and the disjointed reports leaked by anonymous law enforcement officials to mass media outlets, we are left with all the trappings of a Hollywood thriller, and none of the concrete facts that would ordinarily anchor our temptation to fall into such hysteria.