Why the FBI Might Not Blame Itself for Killing Tsarnaev’s Suspected Accomplice

The New York Times found that the FBI almost never finds fault with its agents’ use of deadly force.

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If recent history serves any indication, the FBI isn’t likely to find its agent at fault for shooting an acquaintance of Tamerlan Tsarnaev while questioning his role in the triple murder of three Tsarnaev friends in Waltham. That’s because the FBI hasn’t found an agent at fault in any of the whopping 150 incidents in which an agent wounded or killed someone with a gun since 1993, according to the New York Times.

On May 22 in Orlando, the FBI and Massachusetts State Police questioned Ibragim Todashev,  27-year-old MMA fighter and an ethnic Chechen who once lived in the Boston area, where he knew suspected Boston Marathon bomber Tamerlan Tsarnaev. That day, an FBI spokesman said in a press release that several law enforcement officers interviewed Todashev in connection with the Marathon attacks, and that Todashev got violent and was killed. Since then, conflicting accounts have leaked out through anonymous sources suggesting he had a knife, that he was unarmed, that he threw a table at the agents, or that he was about to sign a confession admitting to a role in a triple murder in Waltham in which authorities also suspected Tamerlan Tsarnaev.

The FBI hasn’t added much clarity to the reports but a spokesman said, “The F.B.I. takes very seriously any shooting incidents involving our agents, and as such we have an effective, time-tested process for addressing them internally.”

Based on data obtained through Freedom of Information Act requests, New York Times reporters Charlie Savage and Michael Schmidt sound skeptical about that based on the FBI’s track record with internal investigations:

[F]rom 1993 to early 2011, F.B.I. agents fatally shot about 70 ‘subjects’ and wounded about 80 others — and every one of those episodes was deemed justified, according to interviews and internal F.B.I. records obtained by The New York Times through a Freedom of Information Act lawsuit.

When we’re talking about the government using lethal force, a 1.000 batting average should probably cause some suspicion. The FBI calls use of deadly force “justified” when the FBI agent fears that his life or those of his fellow agents are in danger. But as The Atlantic Wire notes today, that’s a pretty ambiguous threshold. (“If the FBI is after a suspect, isn’t there some implicit danger in that already?”) And as the Times notes, the use of force can be “justified” in the moment, even if it later turns out to have been ill-advised. As in: an FBI agent shot an innocent Maryland man in 2002 whose description matched that of a suspected bank robber. The bureau paid $1.3 million to settle a lawsuit, but the internal investigation found the use of force justified because it found the agent had reason to think the non-suspect was reaching for a weapon at the time. Extrapolating to the Tsarnaev case, if the FBI finds that its agents had reason to fear for their lives, even if that fear ends up being unjustified, they might rule it a faultless case.

There’s a lot we don’t yet know about the circumstances surrounding Todashev’s death. And as Maria Sacchetti of the Boston Globe reported last week, this incident already differs in some ways from past FBI shootings. She describes a deadly FBI shooting in Illinois that occurred 12 days before the Todashev incident. “Within 24 hours, the FBI issued a press release saying agents shot and killed Tony Starnes, 45, when he allegedly rammed an agent’s vehicle with a stolen Honda Civic,” Sacchetti wrote. The FBI hasn’t been nearly so quick with information this time around, a fact that suggests they might be sitting on potentially unflattering info. She writes:

As time passes, critics say, the FBI’s refusal to release information raises questions about whether they acted properly.

“You can rest assured that the information is not flattering to the FBI; if it was flattering, they’d either release it or leak it,” said Harvey Silverglate, a Boston criminal defense and civil liberties lawyer. “A reasonable person can draw inferences from the FBI’s silence that there was something highly irregular about the way this interrogation was done.”

If that’s the case, the only question is whether the outcome of the FBI investigation will also be “highly irregular.” For the FBI to find fault in its own people, it would have to be.