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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.

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Eric Holder: Well, Maybe Just a Little Forced Nudity and Solitary Confinement…

Eric Holder has written a letter to Russian Minister of Justice Alexander Valdimirovich Konovalov. In it, he claims to address the issues Edward Snowden raised in his application for asylum to Russia (I’m not sure he accurately represents the claim — in other asylum applications Snowden made a clear case he was charged with a political crime, which Holder doesn’t mention at all).

The letter assures Konovalov that the charges currently charged don’t carry the death penalty and the government wouldn’t seek the death penalty if he were charged with such crimes.

But it also offers this guarantee that Snowden won’t be tortured:

Second, Mr. Snowden will not be tortured. Torture is unlawful in the United States.

That’s it! The guy whose DOJ reviewed but chose not to charge a bunch of CIA torturers (and those who obstructed investigations into that torture) says torture is illegal here and therefore Snowden wouldn’t be tortured.

Assuming, of course, you believe the forced nudity and solitary confinement Bradley Manning was illegally (per the judge in his case) subjected to doesn’t amount to torture. I’m sure Vladimir Putin would agree, but much of the civilized world does not.

In other curious assurances, Holder promises that Snowden would have the right to counsel.

Any questioning of Mr. Snowden could be conducted only with his consent: his participation would be entirely voluntary, and his legal counsel would be present should he wish it.

I guess Holder ought to tell Dzhokhar Tsarnaev about this return to the good old days, because he asked for a lawyer several times under questioning before he got one.

These assurances are all very nice. But more and more, such assurances are easily disproven by our recent history. Again, I don’t think Vlad Putin gives a great shit about all that. But ultimately this increasingly shoddy recent history will hurt such claims in the international realm.

Dzhokhar’s Sharpie Manifesto

CBS had a fascinating scoop this morning, reporting that (presumably in the hours when he was holed up and authorities searched just blocks away), Dzhokhar Tsarnaev wrote a part-confess part-manifesto on the wall of the boat.

The note — scrawled with a marker on the interior wall of the cabin — said the bombings were retribution for U.S. military action in Afghanistan and Iraq, and called the Boston victims “collateral damage” in the same way Muslims have been in the American-led wars. “When you attack one Muslim, you attack all Muslims,” Tsarnaev wrote.

Tsarnaev said he didn’t mourn older brother Tamerlan, the other suspect in the bombings, writing that by that point, Tamerlan was a martyr in paradise — and that he expected to join him there soon.

The CBS version of the story suggests this sharpie manifesto may make up for any evidentiary problems given the FBI’s refusal to give Dzhokhar a lawyer.

Miller explained that while Tsarnaev admitted many of the same details to authorities during his 16 hours [sic] in custody, those admissions came “during the time he was interrogated but before he was given his Miranda warning.” The note gives prosecutors supporting and clearly admissible evidence even if there is an fight over whether things Tsarnaev said before he was given his Miranda rights are admissible as evidence.

Though it’s unclear whether CBS’s reporter came to this conclusion on his own or that’s what his sources told him.

Which brings us to this laughable detail in the ABC version of the story.

Spokespeople for the Massachusetts State Police and the Watertown police had denied the existence of the writings when first asked about them by ABC News two weeks ago.

Today, both departments referred reporters to the FBI. A federal law enforcement official confirmed reports first broadcast by CBS News that writings had been discovered inside the boat.

The discovery of writings intensified tensions between the FBI and local police when FBI agents believed some Boston officers and state police had taken cell phone pictures of the writing.

Agents demanded the phones of all officers at the scene the night of the capture of Dzhokhar be confiscated to avoid the photos becoming public before being used as evidence at trial, according to two law enforcement officials.

A FBI spokesperson said agents cannot confiscate phones without a warrant and officials said none of the police approached would agree to turn over their phones to the FBI.

Hahahaha! The cops would turn over their phones, with their evidence of Dzhokhar’s manifesto, without a warrant!!!

Hahahaha!

Only, there’s something funny about the story. Why would cell phone pictures of the manifesto matter if the FBI had properly documented photos taken immediately after the arrest when the chain of custody was intact? I mean, I could see worrying about tainting the jury pool, but the leaked content of the interrogations already said all this stuff anyway.

Hailing Carmen Ortiz While Ignoring Several Amendments

Main Justice has a bizarre post suggesting that those who excoriated Carmen Ortiz for her treatment of Aaron Swartz (and Tarek Mehanna and Russ Caswell, though MJ doesn’t name them by name) are now hailing her aggressiveness.

“The criticism lately has been that they’ve overcharged some people and been overly harsh,” Peter Elkann, a Boston defense attorney, said in a recent interview with Reuters. Elkann went on to observe that “no one is going to accuse any prosecutor of making too big a deal out of this case.”

That would be a safe statement, considering that the April 15 bombing killed 3 people and wounded more than 280 others, many of whom lost legs, as it left blood on the street and horrified and infuriated millions of Americans.

Ahem.

Maybe Main Justice doesn’t read this blog, which has twice noted the needless prosecutorial irregularity of Dzhokhar Tsarnaev’s interrogation.

But I would hope that a site covering legal inside baseball has heard of a guy named Erwin Chemerinsky, who seems just as troubled by DOJ’s refusal to comply with Dzhokhar’s reported request for a lawyer as bmaz and I?

It has become increasingly evident that the Justice Department violated the constitutional rights of Boston bombing suspect Dzhokhar Tsarnaev. He apparently was questioned for hours without being given hisMiranda warnings, and the interrogation continued even after he explicitly requested an attorney. It is disturbing that the Justice Department would risk its criminal prosecution by ignoring such basic rules and even more disturbing for what this says as to its view of the Constitution.

Don’t get me wrong. I don’t think Carmen Ortiz made the decision to refuse Dzhokhar a lawyer through 16 hours of interrogation alone. I’m quite certain she did that because that’s the policy — generally and specifically — Obama’s DOJ wants to pursue.

But that’s true of her over-aggressive pursuit of the war on drugs, the war on hackers, and the war on Muslims, too, the wars she was fighting when she took down Aaron Swartz and Tarek Mehanna (and tried to take down Russ Caswell). The other abusive decisions she made all reflect the policy choices of the Obama Administration.

But denying someone his Fifth and Sixth Amendment rights is completely consistent with what we’ve seen Carmen Ortiz do in the past. And while Main Justice appears unphased by it, some of the same people who have noted her prosecutorial aggression in the past are noting it continues here.

The Ongoing Tsarnaev Investigation

There have been a number of interesting developments in the Boston Marathon bombing investigation. This post will mostly serve to collect them and comment on what they say.

The taxi cab full of pressure cookers

First, there’s a nagging question I’ve got. Anonymous leaks to the press have claimed that Dzhokhar Tsarnaev told the FBI he and his brother assembled the pressure cooker bombs in Tamerlan’s Cambridge apartment (which is one of the reasons authorities distrust Katherine Russell Tsarnaeva, leading her to hire Johsua Dratel to represent her).

But if it’s true the brothers assembled the bombs in the apartment, then what was this cab ride all about?

Jim Duggan, 51, has been haunted since his close encounter with brothers Tamerlan and Dzhokhar Tsarnaev, thinking maybe he could have unwittingly thwarted the killer plot if he had just driven away.

He told the Daily News on Thursday that the brothers flagged him down April 14 outside a rapid-transit station in the Boston suburb of Malden.

“I tried to put their backpacks into the trunk, but they wouldn’t let me touch them,” Duggan said.

He drove the men to Cambridge, letting them out near Kendall Square — close to where they lived.

Duggan said the brothers gave him a $2 tip on a $38 fare. As he started to drive away, the the older brother, Tamerlan, 26, began pounding on his car and yelling at him to get his attention.

The taxi driver said he immediately stopped and popped the trunk. Before the brothers could stop him, he removed one of the backpacks, which he now suspects held a homemade pressure-cooker bomb used in the attack.

“I said to them, ‘That’s the most packed backpack I ever picked up,’” said Duggan, guessing the bag weighed about 20 pounds.

I’m especially interested in this given Dzhokhar’s reported claim that they were going to hit the July 4th celebration, but finished the bombs early and therefore decided to target the Marathon instead. What if they had picked up the bombs at some location on the commuter rail?

The pizza and pot murders

In 2011, a friend of Tamerlan’s and two others were killed in a bizarre and brutal killing in Waltham. At the time, people thought Tamerlan’s behavior was weird (for example, he didn’t go the funeral, which Tamerlan’s ultra conservative views might have prohibited). In the wake of the Boston attack, though, authorities now claim not just Tamerlan, but also Dzhokhar, might be tied to the killing.

In the wake of the Marathon bombings, Middlesex County began to probe a link between the elder Tsarnaev and Brendan Mess, one of the three men killed in the gruesome slaying on Sept. 11, 2011. Officials said Mess and two men were found in a Waltham residence with their throats slit and their bodies covered with marijuana. Tamerlan and Mess were once roommates and did boxing and martial arts training together.

Now law enforcement officials tell ABC News that some crime scene forensic evidence provided a match to the two Tsarnaev brothers. The officials also said records of cell phones used by the Tsarnaevs appears to put them in the area of the murders on that date. Several officials confirmed the new findings but declined to be identified because they are not authorized to comment on the ongoing investigation.

[snip]

Then, Gerry’s Italian Kitchen became a focal point again on April 24, nine days after the Marathon bombing, after investigators removed a Planet Aid charity donation bin from its parking lot. A driver had discovered discarded fireworks inside and law enforcement sources told ABC News the gunpowder had been removed from the cartridges.

Elsewhere, I’ve seen it claimed that Tamerlan worked for Gerry’s Italian Kitchen at the time.

I’m really intrigued by this possibility — particularly since it looks like a mob killing more than an Islamic extremist one. But I also think it’s possible that the brothers’ DNA was at the scene because they, as friends, had been there. And what do authorities mean when they say their phones “put them in the area”? Is Cambridge the area, or just the Waltham neighborhood? Finally, while authorities might be really pushed to implicate Dzhokhar as well as Tamerlan, the piece notes that up to now they’ve believed there was just one killer.

They’ve got a real incentive to implicate Dzhokhar, who is around to be tried, unlike Tamerlan. So it’s worth being skeptical about his implication, at least.

Wearing makeup to your militia debut

There are a number of interesting details about what FSB is saying about Tamerlan’s trip to Russia (such as in this article; also note, as far as I can tell, FSB is baby-sitting the FBI agents working this case, so it’s important to remember much of this is being seen through their eyes).

But I’m particularly interested in this description of Tamerlan showing up in what I’ll call jihad disguise, which made actual Salafists worried he would attract attention.

Mr. Tsarnaev, who a year later allegedly planted the Boston Marathon bombs with his brother Dzhokhar and died after a shootout with police, got a cool reception from some of the Islamists he hoped to bond with. He greased his hair with olive oil and wore dark eye makeup, apparently in an effort to affect contemporary jihadist fashion, according to Mohamad Magomedov, who struck up a friendship with him at the mosque. Read more

ID Biometrics in Immigration Bill'>Real ID Biometrics in Immigration Bill

I’ve got two ginormous issues with the report that the Immigration Bill includes a measure that would require the creation of a “photo tool” database to verify status before employment.

The immigration reform measure the Senate began debating yesterday would create a national biometric database of virtually every adult in the U.S., in what privacy groups fear could be the first step to a ubiquitous national identification system.

Buried in the more than 800 pages of the bipartisan legislation (.pdf)  is language mandating the creation of the innocuously-named “photo tool,” a massive federal database administered by the Department of Homeland Security and containing names, ages, Social Security numbers and photographs of everyone in the country with a driver’s license or other state-issued photo ID.

Employers would be obliged to look up every new hire in the database to verify that they match their photo.

First, this would accomplish precisely what Real ID would accomplish, but less.

I’ve long believed we were going to go to Real ID in any case. I’ve also long believed that we ought to change the politics of such a discussion by proposing that along with Real ID, we also get universal registration. The authoritarians would thus have a choice: give up their efforts to disenfranchise the poor via voter ID and track employment, or lose both.

I’m guessing it’d present quite a dilemma for the authoritarians.

But to learn a bipartisan bill is basically ceding on real ID without using it to foster democracy?

My other problem has to do with the certainty that this would be turned into a counterterrorism tool. Recall that last year, John Brennan decided protecting US person data was just too tough, so National Counterterrorism Center would have to have access to any federal database that NCTC deemed to have terrorism information.

I think it highly likely that NCTC would deem a database of all Americans to contain terrorist information.

Therefore, we should assume that whatever else this database is supposed to do, it would also mean that the faces of innocent Americans would start getting included in the data analysis of potential terrorists.

Mind you, the authorities claim (though I’m not convinced) that they weren’t able to ID the Tsarnaev brothers with all the images they had of them at the Boston Marathon. Maybe the technology sucks (again, not convinced).

But that doesn’t stop the inclusion of all Americans in the dataset of possible terrorist mugshots from being an invitation for witch hunts.

Maybe Dzhokhar’s Buddies Just Wanted a Job at HSBC?

A lot of people on Twitter are talking about how dumb-as-shit Dzhokhar Tsarnaev’s college buddies, Azamat Tazhayakov, Dias Kadyrbayev, and Robel Phillipos were when they allegedly removed evidence relating to the Boston Marathon bombing and threw it in the trash or (in the case of Phillipos) lied about those activities.

I’m not convinced, though.

I’m not defending what the young men did. Nor am I vouching for their intelligence. Nor am I saying they shouldn’t be prosecuted — they should!

But I’m having a hard time distinguishing what they did from what, say, HSBC did, for years. Aside from the fact that HSBC affirmatively helped terrorists, rather than just covered up that help. And aside from the fact HSBC made a billion dollars doing so.

As a reminder, where’s what HSBC did — eliciting nary a blink of an eye from the same DOJ that is now (rightly) prosecuting these dumb-as-shit kids. They were a key — perhaps the key — bank providing Saudi al-Rajhi bank cash dollars. Details emerged in 2001 that the bank had been providing the dollars terrorists used in their plots, including the 9/11 plot. It took four years for HSBC to begin to get worried about it. But it still only halted the dollar trade for al-Rajhi while its US regulator, OCC, looked into its money laundering practices (it says something about HSBC’s awareness of the sensitivity of this issue that they didn’t halt their other abundant money laundering activities).

And then, once OCC was out of its hair, HSBC moved back into the cash dollar business with al-Rajhi, a bank reportedly involved with the most spectacular terrorist acts of recent years.

Just HSBC’s brief exit from the cash business with al Rajhi is similar to what Dzhokhar’s dumb-as-shit buddies did when they put his backpack in the public trash. Covering up terrorism.

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Tsarnaev: Right to Counsel, Not Miranda, Is the Key

LadyJusticeWithScalesSince Dzhokhar Tsarnaev was taken into custody just over a week ago, the hue and cry in the public and media discussion has centered on “Miranda” rights and to what extent the “public safety exception” thereto should come into play. That discussion has been almost uniformly wrongheaded. I will return to this shortly, but for now wish to point out something that appears to have mostly escaped notice of the media and legal commentariat – Tsarnaev repeatedly tried to invoke his right to counsel.

Tucked in the body of this Los Angeles Times report is the startling revelation of Tsarnaev’s attempt to invoke:

A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule. The exemption allows defendants to be questioned about imminent threats, such as whether other plots are in the works or other plotters are on the loose.

Assuming the accuracy of this report, the news of Tsarnaev repeatedly attempting to invoke right to counsel is critically important because now not only is the 5th Amendment right to silence in play, but so too is the right to counsel under both the 5th and 6th Amendments. While the two rights are commonly, and mistakenly, thought of as one in the same due to the conflation in the language of the Miranda warnings, they are actually somewhat distinct rights and principles. In fact, there is no explicit right to counsel set out in the Fifth at all, it is a creature of implication manufactured by the Supreme Court, while the Sixth Amendment does have an explicit right to counsel, but it putatively only attaches after charging, and is charge specific. Both are critical to consideration of the Tsarnaev case; what follows is a long, but necessary, discussion of why.

In fact, “Miranda rights” is a term that is somewhat of a misnomer, the “rights” are inherent in the Constitution and cannot be granted or withheld via utterance of the classic words heard every day on reruns of Law & Order on television. Those words are an advisory of that which suspects already possess – a warning to them, albeit a critical one.

In addition to being merely an advisory of rights already possessed, and contrary to popular belief, advising suspects of Miranda rarely shuts them down from talking (that, far more often, as will be discussed below, comes from the interjection of counsel into the equation). As Dr. Richard Leo has studied, and stated, the impact of Miranda on suspects’ willingness to talk to interrogators is far less than commonly believed. One study has the effect rate of Miranda warnings on willingness to talk at 16%; from my two plus decades of experience in criminal defense, I would be shocked if it is really even that high.

On top of this fact, the Miranda warnings relate only to the admissibility of evidence or, rather, the inadmissibility – the exclusion – of evidence if it is taken in violation of Miranda. Professor Orin Kerr gives a great explanation here.

Since there is, without any real question, more than sufficient evidence to convict Tsarnaev without the need for admissibility of any verbal confession or other communicative evidence he may have provided the members of the HIG (High Value Detainee Interrogation Group), the real Read more

Facebook a Better Spook than Ray Kelly

We have been discussing the FBI’s apparent inability to use the multiple images of the Tsarnaev brothers from the Boston Marathon to ID them using facial recognition software.

So I wanted to circle back to two things. First, point to the passage of BoGlo’s comprehensive account of the hunt for the brothers that pertains to this question.

Of note, it says photo analysts had isolated the video of Dzhokhar dropping his backpack by Wednesday morning.

When Alben, of the State Police, saw the results of the analysts’ work on Wednesday morning, he couldn’t believe it: they had captured an image of the young man in a white hat dropping a backpack outside the Forum restaurant and then walking away.

“There was a eureka moment . . . It was right there for you to see,” said the colonel. “It was quite clear to me we had a breakthrough in the case.”

They had faces. Now they needed names.

The account remains unclear about why the FBI was unable to match the images, relying on speculation about the quality of the images.

Even after authorities isolated the images of the two suspected bombers, they weren’t able to pinpoint the suspects’ identities — an essential puzzle piece that was still missing Wednesday.

The FBI has poured millions of dollars into facial recognition technology over the years so it can quickly cross-check an image against millions of other pictures in government databases.

In this case, both brothers were already in existing government databases, including the Massachusetts Registry of Motor Vehicles and federal immigration records. They were legal immigrants from the former Soviet republic of Kyrgyzstan, in theory allowing the FBI to find their names.

But it’s not clear which databases the FBI checked. And it may not have mattered. The pictures, taken from surveillance cameras above street level, were likely far too grainy when zoomed in on the brothers’ faces. And the older brother was wearing sunglasses, making their task even harder.

In addition, unlike in a traditional mug shot, the camera wasn’t looking at their faces head-on.

Investigators worked feverishly Wednesday trying to identify the men, searching other photos and video, trying to find high-definition images.

“We still needed more clarity,” said Alben, of the State Police. “As good as the videos were, we needed more clarity.”

And in the middle of this account, BoGlo suggests that briefing Deval Patrick about being able to ID the face of the suspect led directly to the mistaken press reports — based on solid sources, the outlets insisted at the time — that authorities were ready to arrest a suspect.

Colonel Alben, the State Police chief, briefed Patrick on Wednesday about the key piece of video showing Dzhokhar abandoning his backpack. Alben described the clip and showed the governor photographs culled from the footage, information that Patrick called “chilling.”

“We have a break,” Patrick remembers him saying. “We think we have a face.”

If further proof was needed that the city was on edge, the anxiety soon spilled over into view. By 1 p.m., news reports began surfacing that a suspect had been not only identified but arrested, and was headed to the federal courthouse.

I’m still not satisfied with this explanation (and do hope Congress does some hearings on why facial recognition software failed to fulfill its promise, if in fact it did). But it does seem to suggest the FBI had solid images of the brothers for 18 hours before they released them to the public (a decision made by the FBI, the BoGlo reports) and set off the manhunt that shut down the city.

Also, remember our questions about Ray Kelly’s boast of having pictures of the Dzhokhar in Times Square, as the law enforcement community tried to use a half-baked plan to escape to New York and set off pressure cooker bombs in Times Square?

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