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Tsarnaev Attorney-Client Communication Is Compromised

The Dzhokhar Tsarnaev defense team is not given to making public statements (a point on which I have been critical). But during the status hearing that was held last week the team was forced to let the public in on a grave situation that has pertained: According to the report on the hearing in the Boston Globe, in addition to other reasons offered for their contention that they need more time to mount an argument against a potential death penalty in the case,

the team also argued that its direct communications with Tsarnaev have been hampered by his incarceration in Special Administrative Measures, which restrict their access to him. They plan to challenge some of the measures in further court proceedings.

What are Special Administrative Measures, you ask? Well, according to the DOJ itself, they

may include housing the inmate in administrative detention and/or limiting certain privileges, including, but not limited to, correspondence, visiting, interviews with representatives of the news media, and use of the telephone, as is reasonably necessary to protect persons against the risk of acts of violence or terrorism.

And they may be imposed if

there is a substantial risk that a prisoner’s communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.

Those provisions date from May, 1996, but in the wake of 9/11, in November, 2001 the measures were expanded to include monitoring of attorney-client communications. Nominally, information gained from the monitoring cannot be used for prosecution of the prisoner if it is protected by attorney-client privilege, but of course there are exceptions to when attorney-client communication is privileged even in normal situations.

In short, the government is saying “we think Tsarnaev is a terrorist, just like the blind sheik Omar Abdel-Rahman [who has been subject to SAM]. He may be in contact with other terrorists. We must prevent any further terrorism instigated by him. Any communication to such effect relayed by his attorney will cause that attorney to be prosecuted [as was the sheik’s attorney Lynne Stewart].”

To such thinking it does not matter that Tsarnaev has been convicted of no crime. Nor does it matter that early in the case when investigators were questioning him while he was gravely injured and heavily drugged, they said they obtained a confession from him including the point that he and his brother acted alone and had no ties to organized groups, which the investigators claimed to believe.

One does not have to credit the so-called confession to see the hypocrisy in the government’s now subjecting Tsarnaev to the SAM. But then, what else is new?

Update: 5:50 PM Eastern, October 2. Today the defense team filed a motion to vacate the Special Administrative Measures (h/t patsysvodka). The motion includes a copy of the original order of August 27, over four months after Tsarnaev’s arrest, from the Attorney General to institute the measures. The justification includes a list of allegations from the indictment, which of course are only allegations, and seems capped off by this:

On or about April 22, 2013, following his capture, Tsarnaev was interviewed by
the FBI. During the interview, Tsarnaev reaffirmed his commitment to jihad and
expressed hope that his actions would inspire others to engage in violent jihad.
There is no indication that Tsarnaev’s intentions have changed since.

To refresh everyone’s memory, that “interview” was part of the alleged confession Tsarnaev gave to investigators while gravely injured and under heavy medication, after his repeated requests for an attorney had been denied (which “confession” was leaked to the press and is largely responsible for the widespread public perception that he is guilty).

Words fail me.

But they do not fail the defense team, whose motion includes, among other things, a substantial section arguing that “There is No Factual Basis to Conclude that SAMs are Necessary to Avoid Death or Serious Bodily Injury” in this case.

Let’s see what happens now.

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E. F. Beall

E. F. Beall