The FBI’s Paranoia And Incompetence Threatens Free Speech

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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