Is Carmen Ortiz Subjecting Dzhokhar Tsarnaev to Solitary To Prevent Him from Learning about Developments in Florida?

On August 27, Attorney General Eric Holder imposed Special Administrative Measures on Dzhokhar Tsarnaev at the request of US Attorney Carmen Ortiz. Yesterday, Dzhokhar’s lawyers challenged the SAMs.

Josh Gerstein provides a good overview of the SAMs, but they basically amount to inching Dzhokhar closer to full solitary confinement, as well as reviewing even legal materials his lawyers bring into the prison and prohibiting lawyers and other defense staff from passing on messages from third parties.

The big question is why they’re doing this. The government’s excuses — that Dzhokhar employed “tradecraft” by (in part) throwing away a detonator in the trashcan outside of Gerry’s Italian Kitchen, to which Dzhokhar and his brother had interesting ties; that Dzhokhar’s mother released a recording of a call they had back on May 24 “to generate sympathy;” and that Dzhokhar has received 1,000 pieces of mail — are all absurd. I find it non credible that DOJ considers it “tradecraft” to throw criminal evidence away in a place that should offer up more clues. The call with Dzhokhar’s mother was 3 months before the imposition of the SAMs — and she has obeyed instructions not to repeat it. And, as Dzhokhar’s defense points out, he has not responded to any of that mail, and while some of it consists of people telling him they believe him to be innocent, none of it is “jihadist,” and some even consists of people imploring him to convert to Christianity.

The stated explanations are all ridiculous.

So why did Carmen Ortiz (and not, Dzhokhar’s lawyers point out, prison officials) impose these SAMs over 4 months after Dzhokhar got arrested?

It may be the government just wants to subject Dzhokhar to solitary to make him less defiant in case of any public appearances — to “break” him, just as the US government has used other torture methods for. (Still, if that was the purpose, why not impose them back in April and May, before his arraignment?)

But I’m particularly interested in the way this happened as things have heated up in Florida in the aftermath of FBI’s killing of Ibragim Todashev.

I’ve put the relevant dates below. And while they don’t match exactly, during the same time as Dzhokhar has been subjected to these new measures, the FBI, local authorities, and other federal agencies have been trying to investigate Florida’s Russian immigrant community that had ties to Todashev. While I have no idea why the government would want to prevent Dzhokhar from learning of any of that (nor am I aware of any evidence he knew Todashev or any of the others, though he may have known Todashev from when he lived in MA), I do find the parallel developments to be of interest.

Some of the emphasis, thus far, in how the SAMs have been applied is also of interest. The government won’t let the Defense show Dzhokhar pictures of his family (remember, he has a spooked up uncle). The government will decide what kinds of extremist literature it deems discovery relevant to Dzhokhar’s defense and therefore admissible as legal material.

The latter detail, especially, suggests another possible explanation (and it is just a theory, not one I’m ready to fully support): the government doesn’t want the Defense team to be able to substantiate any other motive for the Boston attack besides the Islamic extremism they’ve publicly claimed and highlight even in the SAM memo.

But I would love to know the real reason they are doing this.

April 15: Boston Marathon attack

April 19: Dzhokhar in custody

May 22: News of Ibragim Todashev’s killing released; Tatiana Gruzdeva, who had been detained earlier in May on immigration charges, put into solitary confinement for 5 days

May 24: Conversation between Dzhokhar and his mother that she later released in part

May 30: Gruzdeva is ordered deported but has since been granted one more year and permitted to work

August 8: 2 of Dzhokhar’s friends from school indicted for obstruction; FL Prosecuting Attorney announces he will investigate Todashev death; Gruzdeva released from custody

August 13: Todashev’s father (who is a Chechen government official) gives a press conference pointing to suspicious details about his son’s death and claiming the FBI asked to question him

August 20: Todashev’s father meets with FL State and Federal investigators

August 27: Holder imposes SAMs

August 30: Dzhokhar’s lawyers learn about the SAMs when they arrive for a previously scheduled visit

September 17: Status report indicates the government believes it has completed discovery; the defense disagrees

September 18: Ashurmamad Miraliev arrested for alleged tampering with witness to assault (possibly involving Todashev) 14 months earlier; he is refused a lawyer during 6 hours of questioning; Todashev girlfriend and Miraliev roommate Gruzdeva talks to Boston Magazine writer (who has ties to one of the Waltham victims) who had previously tried to contact her

September 23: Judge George O’Toole continues speedy trial based on complexity of case (this is not tied in the docket to any unsealed request, though seems to respond, at least in part, to issues regarding discovery and death penalty determination)

September 24: CAIR-FL first gets to meet with Miraliev and learn his 6-hour questioning without representation focused on Todashev

September 25: CAIR-FL claims a number of Todashev’s friends have been coerced to become informants

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

14 replies
  1. P J Evans says:

    I thought the line about him disposing of evidence was a crappy one to use in the first place – what did they expect him to do, save everything in labelled bags? Getting rid of evidence is something even street gangs do.

  2. greengiant says:

    Once they are all informants they can’t snitch out the tidbits of the hypothetical original FBI entrapment of the Tsarnaevs. That assumes the different agencies and parts there of have not been working at cross purposes.

  3. cate says:

    Of course all happening while the Fed Attorney is likely trying to get a plea deal out of Tsarnaev – and avoid the inconvenience of a trial where dubious evidence will be publicly tested.

    How long can a person last in those conditions without cracking?

  4. thatvisionthing says:

    Dzhokhar’s mother released a recording of a call they had back on May 24 “to generate sympathy;” … The call with Dzhokhar’s mother was 3 months before the imposition of the SAMs — and she has obeyed instructions not to repeat it.

    wtf? They can gag his mother? Isn’t that First Amendment unconstitutional? And if she is able to generate sympathy by speaking out, isn’t preventing her from doing so a form of jury tampering? I recall Obama and his underlings had no problem pronouncing Bradley Manning guilty before the trial and the court had no problem with that.

  5. C says:

    @thatvisionthing: As an equally WTF question how can they be filtering the admissible materials for his legal team? That violates the basic legal premise of attorney-client privilege and any concept of a fair defense. That alone should make any case invalid.

    As a general point Ortiz was also the AG who elevated the charges against Aaron Swartz over, apparently, the objections of MIT who was the supposed aggrieved party. While I feel that MIT is downplaying their tacit support of her moves this seems to fit with a pattern of extreme aggression, borderline illegal aggression IMHO, on her part.

  6. thatvisionthing says:

    @C: And Qwest CEO Joseph Nacchio, who said no when the NSA came to him in (February!) 2001 and wanted to wiretap without a warrant.

    cf Scott Horton, Harper’s, 10/14/07, on the subsequent retaliatory prosecution and rigged trial of Nacchio. The jury couldn’t see the full picture, because:

    It seems that the evidence was lacking because the trial judge suppressed it, not because it didn’t exist. (emphasis in original)

    Horton saw felonies:

    Let’s put this in sharper focus. Nacchio discovered that the NSA was engaged in a project to gather warrantless surveillance data on millions of Americans. He took advice of counsel. His lawyers told him, correctly, that this was illegal. They probably also warned him that if Qwest participated in the program, it would be committing a felony. So Nacchio said, no, sorry, I can’t work with you on this. But I can help if you want to change the law. And the reaction of the NSA? It was, apparently, to cut Qwest out of a series of contract awards by way of retaliation. (If that charge sticks, it would probably be yet another felony.) And the second reaction? To try to build a criminal case against Nacchio as a means of retaliation against him. (And if that charge sticks, it would probably be yet a third felony–on the part of the Government officials who did it). We are seeing the Government engaging in a sweeping pattern of criminal dealings, and ultimately, one of the biggest crimes of all, abusing the criminal justice process to strike out at an individual who refused to play their crooked game. Oh, and by the way: who was heading the NSA when all of this transpired? Michael Hayden, the man who now runs the CIA, and is busily dismantling the CIA Inspector General’s office because it has apparently raised questions about potentially criminal conduct on his watch there, too.

    But I guess you’d have to have an uncorrupted justice system to prosecute those felonies.

  7. Krissy says:

    Carmen Carmen Carmen, you are screwing up. Badly. Your political ambitions let you be blind sighted. You don’t have enough evidence to show the following:

    1. He made the bombs. Or
    2. It was his backpack that exploded.
    3. Even if his backpack exploded, did he know the contents of the backpack.

    You lose,

  8. matt carmody says:

    It’s too bad the feds didn’t pay as much attention to the Islamic community in and around Venice, Florida in the months before 9/11. They probably would have found more to be concerned about than they will looking under rocks for a Russian connection.

  9. 1970cs says:

    From Oct 2011, across the street from the Watertown, MA PD

    “Former Watertown Town Councilor Thomas Gus Bailey was arrested Wednesday and charged with trafficking marijuana after police reportedly found more than 1,000 marijuana plants and 300 pounds of cut marijuana, with an estimated street value of $2 million, in his Waltham warehouse.

    Bailey, 49, of Waltham, was charged with conspiracy to violate drug law, trafficking in marijuana and two counts of possession of marijuana with intent to distribute. He was arraigned today in Waltham District Court and held on $100,000 cash bail.

    Police found more than 1,000 plants actively growing, as well as “several hundred pounds” of cut marijuana and $20,000 in cash at the warehouse and one officer referred to it as a “million-dollar operation.”

    The investigation is ongoing. Middlesex District Attorney’s Office spokeswoman Cara O’Brien said “at this time” there is no connection between the marijuana-growing operation and a September triple homicide where three men were found stabbed to death and covered in marijuana.

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