Were accused Boston Marathon bomber Dzhokhar Tsarnaev imprisoned in another country and barred from speaking to the outside world, he’d doubtlessly be described as “being held incommunicado.”
Yet since he’s an accused terrorist being held in the United States, the Justice Department-ordered gag on him has barely been noticed. And were anyone to ask why he’s forcibly been kept silent, they’d be told he’s been subjected to “Special Administrative Measures.”
Don’t be fooled by the innocuous sound of that. The phrase refers to a law that allows the government to restrict a prisoner’s communications in ways that:
“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.”
The law was established to prevent presumably dangerous inmates—those accused of terrorism, espionage, mob or gang activity—from communicating to the outside plans that could result in death or bodily harm.
This is how stringent the rules are: federal prison officials told WhoWhatWhy via email they are prohibited from even discussing general information about Tsarnaev.
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Restricted from communicating with anyone but his attorneys, his immediate family and prison staff, Tsarnaev is one of 49 inmates nationwide subjected to a law that some attorneys say skews the odds against a defendant and “keeps terrorism suspects guilty until proven otherwise.”
According to attorney David Thomas, who represented terrorism suspect Mohammed Warsame:
“the provisions of the Sixth Amendment establish the federal criminal justice system on an adversarial model, where the government and the defendant, as opposing parties, are to be of relatively equal strength… This system collapses in federal terrorism cases because the government enjoys overwhelming advantages, principally its ability to impose SAMs and classify evidence as well as its power to engage in vast surveillance and secrecy.”
And what communication Tsarnaev is allowed—including with his attorneys—is monitored by the FBI. The Bureau of Prisons also has tried to screen digital documents his attorneys have tried to view with him—actions his lawyers say are a violation of Tsarnaev’s constitutional right to prepare his case without government interference.
He and his attorneys are also restricted from discussing his case with the media—so he can’t tell his side of the story to the public. Tsarnaev’s attorneys have argued the SAMs are a violation of his First and Sixth Amendment rights. U.S. District Court Judge George A. O’Toole Jr., who is overseeing the trial, has not ruled on that specific argument so the de facto gag order is still in place.
In fact, the public wasn’t even aware of why Tsarnaev has not talked to the media. The SAMs were implemented on Aug. 27, 2013, but weren’t made public until Tsarnaev’s defense attorneys requested they be lifted in an October 2013 motion. Tsarnaev’s attorneys went to court after they were denied permission to see their client at Federal Medical Center Devens, until they signed SAMs agreements. (FMC Devens is a prison for male inmates requiring specialized or long-term medical or mental health care.)
Stacking the Deck
Prior to 9/11, SAMs were allowed only by a court order.
But 9/11 changed that. Now, the Attorney General decides whether an inmate presents enough of a risk to qualify for such restrictive treatment. That decision is not subject to any external scrutiny. There is no requirement that the Attorney General’s findings be made public, nor that the defendant or his/her attorneys be given any input.
Step back for a second and remember that the Attorney General is the head of the Justice Department, which prosecutes all federal crimes. The AG also oversees the FBI.
What does that mean for a defendant like Tsarnaev? It means that the person whose job it is to ensure his conviction has the sole right to decide whether he gets to tell his side of the story before trial. It also means that the overall boss of the FBI has “ears in the room” when a defendant is discussing legal strategy with his lawyers.
The judicial system is unsympathetic. Judge O’Toole summarily rejected an amicus brief from the ACLU of Massachusetts, which argued that Tsarnaev’s constitutional rights were being violated.
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