Senator Lindsey Graham (R. – S.C.) was quoted as saying that either the FBI did an inadequate investigation of Tamerlan Tsarnaev, or, alternatively, that there were legal restrictions preventing them from conducting a proper investigation, or expending sufficient resources keeping an eye on him. According to Politico, he seems to be backing away from those claims. Graham backs off FBI criticism. Rep. Peter King (R-N.Y) and Michael McCaul (R-Texas) are also critical of the Bureau (Newsday). But let’s consider what seems to be undisputed:

1. The original lead came from the Russian government; that would be the government headed by Vladimir Putin, whose current repertoire in dealing with critics, both in Russia and expatriates, includes harassment, personal attacks, arrests on trumped up charges, prosecutions and imprisonent (domestically) and assassination on foreign soil, even when it’s a clear violation of other countries’ sovereignty. The deaths of Litvinenko, Berezovsky, and Klebnikov in the United Kingdom come to mind.
2. The Bureau interviewed Tsarnaev, friends, neighbors, and went at least as far as learning about the domestic violence claim against him. Whether or not they did more is, at least for the moment, a legitimate government secret.
3. The Russians, of course, have several potential motives for wanting to discredit a expatriate. Or, for that matter, to lead us to believe Tsarnaev was an Islamic extremist; if they knew what he was up to, they could hope to reap gratitude and political advantage; get sympathy for their efforts against the Chechens and,  perhaps, get the United States to lighten up on Russian human-rights violations. But, after the Bureau reported back to the Russians after some or all of their inquiries, the Russians didn’t get back to the Bureau.
4. If, between the Russian intel and the fruits of their own inquiries, the Boston Field Office had any serious thoughts about Tsarnaev posing a threat, we have no doubt that they would have been all over it. However, there are real constraints on surveillance – even intercepting telephone calls and emails takes time – in this case more time and resources depending on the language(s) the brothers used to communicate – most likely a mix of Russian, Chechen, and English.
5. In other words, there’s no reason to think that the Bureau had this in hand and then failed. And now Senator Graham, having made his grave accusation of FBI failure without first getting a briefing from the Bureau, has had a briefing and backed away from his charge.  Reps. King and McCaul want an investigation.
6. As to the vague claim that there were legal restrictions stopping the Bureau from properly pursuing Tsarnaev – Senator Graham is an attorney, has been a prosecutor, and if he sees deficiencies in relevant statutes, might he not – since statutes by their nature are public documents – let the rest of us in on his thinking? If something needs to be added to or removed from the United States Code, there’s no reason to keep mum about them and every reason to make the argument publicly. Tell us what’s wrong with the law so we can fix it.

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An attorney in private practice, Jon Soroko can be reached at Jonathan . Soroko @ gmail.com.