When you think about this for a moment, it’s…exceptionally noteworthy.
Syed Farook and Tashfeen Malik are dead. They can’t be prosecuted for the terrorist attack they launched in San Bernardino on 2 December.
Just take a second to recognize the import of that for what can be done after the terror incident. It means, first, that there’s probably no way to bring the incident to a criminal trial, and thus air the findings of law-enforcement investigators in the traditional manner. There could only be someone to prosecute in a criminal proceeding if an accomplice or accomplices were identified.
It’s conceivable for the families of the victims to pursue civil suits against the estate of Syed Farook and Tashfeen Malik – whatever that may now consist of. Although the couple reportedly had $64,000 in the bank, there didn’t seem to be much beyond that. (Howard Portnoy has put a downpayment on consideration of this course.)
The FBI can still pull the string on their associations and identify terrorist links, or at least suspicious links. That, we can hope, would be a benefit for homeland security.
But – here’s the thing about the homeland-security aspect. Without a criminal trial – which makes an adversarial defense team interested in discovery – it’s really up to the Department of Justice how much is revealed to the public, and what interpretation is put on it.
Now we’re ready to ask the questions. After Friday’s media invasion of the townhome in Redlands, California where Farook and Malik lived and built bombs, how many of the obvious next steps for our judicial system can be taken?
Could a civil suit against the couple’s estate prosper in court? With the entire bomb-building scene tainted by a massive surge of unauthorized access?
Can anything be proven in court against a potential accomplice now?
Both propositions are doubtful.
And even if the FBI has been able to gather usable intelligence on Farook and Malik’s associations, the public case – the official narrative about what happened – is compromised enough that Loretta Lynch and the Oval Office can keep going, effectively unchallenged, with some version of what Obama’s top advisors have already said (emphasis added):
According to a readout of the president’s briefing on the situation distributed later Saturday, the president’s team of advisers “highlighted several pieces of information that point to the perpetrators being radicalized to violence to commit these heinous attacks,” and also “affirmed that they had as of yet uncovered no indication the killers were part of an organized group or formed part of a broader terrorist cell.”
Keep in mind, again: unless law enforcement information triggers the justice system to do something, like try an accomplice in court, the government retains pretty much sole control of how much it tells the public about what it has found.
The implied tainting of evidence, and any information that comes from it, just deepens that obscurity option further. It’s very possible that DOJ will be telling us in the coming days that it doesn’t want to release details the public would obviously consider pertinent, because of the potential for “further breaching” the already breached privacy of third parties – like Syed Farook’s mother, some of whose personal information was exposed during the media invasion of the townhome.
The bizarre, unprecedented, and inexplicable media invasion on Friday didn’t just barricade off a dead end for the justice system. By doing that, it enables DOJ to barricade off a dead end for information released to the public.
It’s not that the administration will say nothing. It’s that the administration will be able to control virtually all of what is said in official venues. No defense attorneys will be highlighting information that counters the official narrative.
Sure, Congress can inquire into this, and probably will. But a congressional investigation, a la Benghazi, won’t have the power to make Barack Obama and Loretta Lynch behave as if networked terrorist influences are the problem here — influences like ISIS and extremist clerics abroad — as opposed to “gun laws” and generic “radicalization.”
The Sunday show circuit tomorrow will be as informative about where this is going as it was after the Benghazi debacle. Early signs are that the Islamist-terrorism aspect of it will be downplayed. In the end, you’ll probably just have to trust that Obama and Lynch are right about the problems being lone-wolf radicalization, the agonies of “anti-Muslim rhetoric,” and the ease with which you good people can buy “assault weapons.”