Eric Holder and the Tsarnaev Death Penalty Kabuki

During the course of a wide-ranging interview with the Washington Post on Thursday, Attorney General Eric Holder had this to say about the decision on whether or not to seek the death penalty if Dzhokhar Tsarnaev should be convicted for the Boston marathon bombing:

I’ve asked people at every layer — to the extent that they can — to take a fresh look at it so that I’m getting a bunch of different perspectives and not a repeat of whatever the initial or the latest recommendation is

The interview then paraphrases him as saying that such people “will take into account the offenses, the background and age of Tsarnaev, and his alleged role in the crimes.” And finally:

But at the end of the day, it’s going to be me with a large stack of paper .?.?. sitting at my kitchen table while everybody else in my house has gone to sleep. And over the course of a few days, I will sit down and make the determination.

It’s the single most weighty thing I do as attorney general.

Right, he’s a poor, lonely guy.

To fill you in, “US Attorney Carmen Ortiz” is to recommend whether or not to seek the DP “to Holder” any day now (after an earlier deadline was waived), and “Holder” is to make the decision by January 31. Incidentally, the late-August order to subject Tsarnaev and his lawyers to Special Administrative Measures (SAMs), after four months of his incarceration, was also from “Holder.”

But what is whoever in the Obama administration is actually making all these decisions actually confronting?

Basically, the reality that said person must confront is that Tsarnaev didn’t do it. Here there are two key points.

First, as Woody Box has shown, the place where Dzhokhar Tsarnaev left the backpack that the government alleges contained the bomb cannot have been the point where the explosion occurred. (Some commenters on previous posts that cite this demonstration have either ignored it or dismissed it with some airy generality. They have not said just what might concretely be wrong with it, and therefore have not contributed seriously to the discussion.)

Second, the motive of “Islamic jihad” that is alleged to underly Tsarnaev’s crime is a misunderstanding based on Islamophobic ignorance. The most ideological commitment that Tsarnaev could have entertained, via his now deceased older brother Tamerlan, would have been the anti-Russian separatism that pertains in the North Caucasus, whose adherents happen to be Muslims in much the same way that the Tamils who recently lost the civil war in Sri Lanka happen to be Hindus. Russia tried to convince the FBI to go after Tamerlan in 2011 on the grounds that he was an “Islamic” terrorist, but that was simply propaganda.

But don’t take my word for it; here is the new FBI director James Comey testifying on Thursday before the Senate Committee on Homeland Security and Governmental Affairs:

We currently assess the threat from North Caucasus-based militants to the homeland to be minimal as they remain focused on fighting against Russian security forces in the North Caucasus.

(True, in this speech Comey has trouble reconciling his statement with the going wisdom that the Boston bombers were from the North Caucasus, but there you have it.)

(And of course, the government claims to have two confessions from Tsarnaev that he did the bombing in allegiance to “jihad.” But the first of these was when he was in the hospital under the influence of the powerful narcotic dilaudid, and would have said whatever his questioner wanted to hear. That the second, the “boat note,” is a clumsy fake is shown by, among other things, its attributing to him the impossible knowledge that his brother was dead.)

Now, although as I discussed in my last post, it is possible and even likely that the Boston
FBI made an honest mistake in identifying the Tsarnaevs as the culprits three days after the bombing, by now the government cannot be unaware that its case is false. True, this fact has not yet penetrated the mainstream media, who remain committed to the public consciousness that Tsarnaev is unquestionably the Boston bomber; however, suspicion of the government’s narrative, at the least, has now been publicized well beyond the usual “conspiracy theory” websites such as infowars, namely in this corner of FDL, at emptywheel, at WhoWhatWhy, and at the new thebostonmarathonbombing website, not to mention a large and growing presence on social media sites.

All of which means that the government is now desperate to avoid an actual trial where the truth would be in danger of coming out no matter how biased the judge and jury.

So of course “Holder” is going to decide for the death penalty. This will have the twin functions of keeping public discussion focused on the penalty rather than the evidence, and of having something to take off the table in a plea bargain so that Tsarnaev can plead guilty and go to a Supermax prison for the rest of his “life,” with the case buried and forgotten.

And of course the true purpose of the SAMs instituted in August is to keep Tsarnaev (the actual lonely guy, WaPo’s portrayal of Holder notwithstanding), isolated and unaware that he has support, in order to break his spirit and make him more amenable to a deal. (The trial judge is currently considering whether or not to lift the SAMs, but the indications are that he will probably relax some restrictions on the legal defense team’s access to their client while keeping the client himself in isolation,)

I will make one caveat. If the defense movement has grown by January 31 to the point where there would be a danger of the fact of Tsarnaev’s innocence spilling over into mainstream consciousness if the death penalty were announced, then the government might back off, cite something like “the defendant’s youth,” and go instead for life without parole, thus hoping for a lesser sentence in the plea bargain that would get the case buried.

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