Dzhokhar Tsarnaev, Defender of the Constitution

The Boston bombing suspect is back in federal court to argue he has a constitutional right to speak to his lawyers without "special" restrictions on his communications.
A courtroom sketch depicts Boston Marathon bombing suspect Dzhokhar Tsarnaev in federal court in July 2013. (Margaret Small/Associated Press)

Even if you have little sympathy for Boston bombing suspect Dzhokhar Tsarnaev, you ought to support his lawyers' efforts to curtail the government's sprawling use of so-called "Special Administrative Measures" in his case. Whatever you think of him, and the capital crimes of which he stands accused, he has a right to counsel, a right to counsel who can privately and effectively communicate with him, and the Justice Department's efforts to undermine that right in this instance are unfair and perhaps even unconstitutional. 

First employed in 1996, SAMs are designed to prevent criminal defendants— before, during or after their trial—from inciting violence behind bars through secret communications with their lawyers or others. The attorney general may authorize the prison's restrictions on an inmate's mail, on his telephone calls, and on his visits with lawyers or access to media, if he or she finds that "there is a substantial risk that a prisoner's communications or contacts with persons could result in death or serious bodily injury to persons."

In the 17 years since SAMs were first authorized their scope has been expanded by the terror attacks of September 11, 2001 and by the sort of "mission creep" that is inevitable whenever bureaucracy is combined with a lack of strong judicial oversight. Where exactly does that put us today? If the government is permitted to impose restrictions on Tsarnaev's fair-trial rights based upon the justifications it has offered in this case it could very well impose such restrictions on virtually any criminal defendant awaiting trial in a capital case. 

Tsarnaev's attorneys and federal lawyers will argue this issue in federal court in Boston Tuesday morning. And while the dispute is unlikely to delay Tsarnaev's trial, it's an important moment in this latest terrorism trial of the century. Are the feds here are using the SAMs against Tsarnaev because they think he's  plotting to wage a terror war from detention? Or are the feds restricting his communications because they don't want the notorious prisoner to become ever more of a political symbol than he already is? And does the Constitution even allow a judge to hazard an answer about which?

Tsarnaev's Argument

Defense attorneys in this case—including the inestimable Judith Clarke—led off their request to end the special measures imposed on them and their client with two temporal arguments. It took four months, they told U.S. District Gerald O'Toole, for Attorney General Eric Holder to implement the communication  restrictions upon Tsarnaev and his lawyers. And there are no allegations, much less evidence, that the defendant during that time communicated or attempted to communicate in any sinister way to justify the imposition of the SAMs. Here is the crucial paragraph from the defense motion:

[T]he underlying charges arising from the Marathon bombing and ensuring events in Watertown, for which Mr. Tsarnaev is awaiting trial, are grave. However, the government has not alleged, nor is the defense away of any evidence to suggest, that these events were directed by others still at large or that Mr. Tsarnaev ever had operational authority to direct the activities of others... Nor is there any evidence whatsoever of co-conspirators with whom Mr. Tsarnaev could arrange further terrorist or criminal activities.

The defense says the SAMs cannot lawfully be imposed because Tsarnaev told his friends before his arrest to take his stuff or because his worldwide notoriety since his arrest has generated "nearly one thousand pieces of unsolicited mail." It would be perverse, Tsarnaev's attorneys argue, to punish him for letters he neither sought nor has responded to. Nor should the restrictions be imposed because his mother in May released portions of a phone call with him to gin up sympathy for her son. Preventing sympathy for a defendant is not part of the legal calculus of the SAMs, the defense argues. Here is the link to Tsarnaev's "Motion to Vacate Special Administrative Measures.

The Federal Response

The Justice Department responded to this motion first by making a procedural argument. Judge O'Toole "lacks jurisdiction to hear the motion" at this time because Tsarnaev failed to comply with the requirements of the Prison Litigation Reform Act, a federal law that generally requires inmates to exhaust their administrative remedies before seeking relief in  court. Tsarnaev needs to ask prison administrators to release him from the restrictions, federal lawyers argue, and only if (or when) they do not can he come back to court for help. This is the just the latest version of federal government's standard terror law line: "Don't-worry-your-pretty-little-head-about-it-judge."

On the merits,  the Justice Department says that Tsarnaev merits the restrictions on his communications with his lawyers, and others, because he inspired "others to commit acts of terrorism." Here's their argument:

Tsarnaev’s desire to inspire others to commits acts of terrorism is evident in the message he wrote in pen on the inside of the boat where he took refuge after his own ability to commit terrorist acts was exhausted. He wrote: The U.S. government is killing our innocent civilians but most of you already know that. As a M[uslim] I can’t stand to see such evil go unpunished, we Muslims are one body, you hurt one you hurt us all . . . [T]he ummah [i.e. the Muslim people] is beginning to rise]. . . . Know you are fighting men who look into the barrel of your gun and see heaven, now how can you compete with that. We are promised victory and we will surely get it.”

This was a clarion call to radical militants to follow in his wake. Tsarnaev’s self-evident goal in writing these words was to motivate others to commit acts of the same or similar nature, putting the American people at constant risk.

There is "nothing speculative" about Tsarnaev's "ability to inspire others through his words in light of his past deeds," federal lawyers told Judge O'Toole. Not only has he subsequently made it into the July 2013 issue of Inspire magazine, an Al Qaeda publication, he's also been the subject of a Rolling Stone cover, the feds write. They also cite a Boston Globe story published this summer titled "Some radicals make heroes of Tsarnaev brothers," for the proposition that the defendant's "world-wide notoriety as a successful terrorist, couple with his avowed desire to inspire others" justifies the SAMs.

To federal officials, Tsarnaev's text message to his friends about his backpack demonstrated "his willingness to use others to advance his illegal ends." His decision to smash his cellphone "before finding a hiding place" demonstrated "a knowledge of basic tradecraft used by terrorists seeking to avoid detection." Just think about those allegations in the context of any criminal case. Every criminal defendant who eludes arrest, or throws away a cellphone, or seeks to give away his stuff, could be subject to these measure if the feds says so.

The Justice Department also, predictably, trotted out some of the very favorable terror law rulings it received on this issue from lower court judges in the years immediately following the 9/11 attacks. "Tsarnaev ignores the lessons of history," the feds told Judge O'Toole. "For example, imprisoned Sheikh Abdel Rahman urged his followers to wage jihad to obtain his release. Violent attacks and murders followed release of those communications." All of a sudden, a domestic mass murder suspect—and that is all Tsarnaev is, when you stop to think about it—is the Blind Sheikh.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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