The feds next argue that the SAMs are constitutional "because they are reasonably related to the legitimate penological interest of ensuring that Tsarnaev does not cause harm either inside or outside the prison walls by engaging in forbidden communication with third parties." And the Justice Department then cites several instances where defense attorneys worked with federal officials to amend and clarify the restrictions to make them more palatable to the defense. For this reason, too, they argue, the SAMs aren't punitive or violative of Tsarnaev's due process or first amendment rights. Here is the link to the Justice Department response.
Last week, Tsarnaev's lawyers responded to the government's brief. "The government obviously has no intention of lifting the SAMs and has made clear its position," the defense asserts, so whatever administrative remedies had to be exhausted under the Prison Litigation Reform Act clearly have been exhausted. Besides, they told Judge O'Toole, both he as a sitting judge in a capital case, and they as attorneys representing a capital defendant, are not bound by the requirements Congress has imposed upon prison inmates.
Defense attorneys understood after reading the government's filing that they had to address the "boat writing" issue and they did-- in a most powerful and provocative way. From their Reply:
The government’s continuing and repeated references to Mr. Tsarnaev’s alleged writings inside of the boat where he was hiding are ironic. On their face, Mr. Tsarnaev’s alleged words simply state the motive for his actions, a declaration in anticipation of his own death. There is no express call for others to take up arms.
While the government may view these words as an implied “clarion call” to other would-be radicals (Opp. at 7), it was law enforcement that originally leaked existence of the alleged boat writings to the press and it is the government that continues to broadcast the “clarion” by repeating, emphasizing, and attributing inspirational significance to these words in the SAMs implementation memorandum and public court filings (emphasis added by me).
The defense also responded to the argument made by federal lawyers that the conduct of Tsarnaev's mother justified the impositions of the restrictions on his ability to communicate. From their Reply:
The government’s latest characterization of statements to the press by Mr. Tsarnaev’s mother just weeks after his arrest as reflecting willingness to be a “mouthpiece” for him in expressing radical views is patently inaccurate.
Mr. Tsarnaev’s mother referred to the fact of innocent civilian deaths around the world in the press coverage quoted by the government not as justification for what her sons were alleged to have done but to express her distraught belief at the time that they, too, had become innocent victims of violence. She then went on to play portions of a recorded call with Mr. Tsarnaev concerning his physical recovery and ability to eat.
These actions of a grieving mother in the immediate aftermath of shocking events, thousands of miles away from her dead and wounded sons, have nothing to do with inspiring further violence and do not justify restrictions on Mr. Tsarnaev or his counsel.
The rest of the Tsarnaev Reply last week consists of a forceful argument for why it is unconstitutional for the Justice Department, on behalf of local federal prosecutors, to micromanage communications between a capital defendant and his defense team. "The SAMs were not a product of considered BOP judgment to which deference might be due," they told Judge O' Toole. "Indeed, Fort Devens was getting by without incident for four months before the SAMs appeared." The harm to this defendant's constitutional rights is obvious and concrete, they say, the possibility that this defendant will cause violence"is so theoretical and remote as to be practically non-existent."