Are Dzhokhar Tsarnaev’s lawyers trying to defend his case on the facts at all, or are they just trying to save his life?
Based on the overwhelmingly lopsided advantage the government holds, with a virtual monopoly on investigative evidence, it’s safe to assume the latter.
Whether the intent is to deny Tsarnaev a) any infinitesimal chance of proving his case—or even lessening the charges against him—or b) to prevent embarrassing information from leaking out at trial, the government has brought the legal version of “full spectrum dominance” warfare to a knife fight.
But a close look at the nature of the information Tsarnaev’s defense team has repeatedly requested from prosecutors in motions to the court suggests Tsarnaev’s lawyers are trying to pry loose something about the government’s relationship with the Tsarnaevs prior to the bombing on April 15, 2013.
The key to this relationship may lie in a store of information that the Russians delivered to U.S. investigators in the days after the bombing. Equally, it may be found in warnings Moscow delivered to U.S. investigators before the attack. Either way, the U.S. government has fought hard to keep the lid on what it knows.
The defense team’s motive in asking for such information is clear enough: they are angling for anything that might convince jurors to spare their client’s life. But the government’s stonewalling raises serious questions about why it wants to keep secret what the Russians knew about the Tsarnaevs, and how and when this information reached the FBI and the CIA.
Discovery v. Suppression
Already, Tsarnaev is facing an uphill battle because of a widespread presumption of his guilt—a presumption fed, in large part, by law enforcement leaks and an unquestioning media. The FBI has been waging an apparent war on witnesses, characterized by the scorched-earth tactic of intimidating, arresting, deporting, and, in one case, killing them. That has rendered them inaccessible to Tsarnaev’s defense.
These hardball tactics appear to be just part of the government strategy of suppressing information in the case. The Justice Department’s trump card is the ability to withhold information based on national security claims. That is in addition to an overwhelming financial advantage.
The defense team has thus repeatedly had to ask U.S. District Judge George A. O’Toole Jr. to compel the government to release information. That has eaten up a lot of time critical in preparing the defense case.
Not that Tsarnaev has been given much of it. One statistic tells the story: Tsarnaev’s team has had about half of the preparation time that defense lawyers in federal death penalty cases have been granted over the past decade—18 months versus a median of 36. So the prospects for getting the whole story behind the bombing laid out in open court look bleak.
Tactical Withdrawal
Reading through the statements Dzhokhar Tsarnaev’s lawyers have filed in court, you’d never know that, in his first court appearance, he pleaded not guilty to all charges against him. Here’s a sample from the defense team:
It was the responsibility of the USCIS [United States Citizenship and Immigration Services] to monitor and document Tamerlan’s activities as a lawfully-admitted alien and applicants for U.S. citizenship. While such monitoring obviously did not prove adequate to prevent Tamerlan from conceiving, planning, and carrying out the Boston Marathon Bombing, his A-file [Alien File] is nevertheless highly likely to provide evidentiary support for the view that he was the instigator and leader of the plot, and that his younger brother’s role was commensurately smaller.
Such wording makes clear that Tsarnaev’s lawyers are planning a tactical withdrawal of sorts. Instead of arguing for his innocence, they appear to be, collecting “mitigating factors” to be used in the sentencing phase of the trial to spare their client from death.
In other words, the defense keeps justifying its requests for information on the grounds that it will be used to argue against the death penalty after Tsarnaev is found guilty.
The most tantalizing part of those requests involves what Russia told the U.S. about the Tsarnaevs and their alleged radicalization, and when.
From Russia With Love, After the Bombing
What’s in dispute here is access to “a handful of texts” that were provided to Dzhokhar’s lawyers in discovery. These were allegedly given to the U.S. government by the Russians after the marathon bombing.
The defense team has described these texts as being “both material and very helpful to the defense because they provide evidence of Tamerlan Tsarnaev’s radicalization as early as 2010 and his pre-existing intention to engage in violent Jihad when he traveled to Russia in 2012.”
This is significant because the U.S. government, particularly the FBI, has claimed it knew nothing about Tamerlan’s “radicalization” prior to the bombing.
Significantly, what has been provided to the defense so far includes many blank pages, redactions, partially cut-off pages and files with no dates nor indication of their origin. There’s no doubt that these fragmentary documents represent only part of what the Russian government gave to the U.S. after the bombing.
The defense has never suggested that the full store of information from the Russians might prove that the U.S. government should have known of Tamerlan Tsarnaev’s desire “to engage in violent Jihad” three years before the Marathon bombing,
Yet this is precisely the question that interests anyone trying to understand the events of April 15, 2013.
FBI v. FSB
It was widely reported after the bombing that the Russians warned the FBI and CIA in 2011 about Tamerlan’s radicalization. The exact nature of those warnings is a matter of contention between the U.S. and Russia.
The U.S. government so far has refused to hand over copies of the warnings; the defense has renewed its request for them.
Once the existence of the Russian warnings became public, the FBI claimed that, had the Russians shared all their incriminating information back in 2011, they could have prevented the marathon bombing.
Predictably, Russia disputes this, indicating they had indeed provided the FBI with warnings of Tamerlan’s radical views, but that likely, they say, U.S. officials concluded he posed a bigger danger to Russia than the United States.
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A 2013 Washington Post article about those warnings supported Russia’s claim, at least in part. Not long after the bombing, the Russians read the warning letter from the FSB (Russia’s equivalent of the CIA and FBI combined) to six Congressmen, including Massachusetts Democrat Bill Keating. The newspaper reported:
The letter from the FSB, read to the delegation by a translator, suggested that Tsarnaev was far more committed to jihad than had been earlier reported. He became radicalized in Boston in 2010, the FSB said, and wanted to join Palestinian fighters, an idea he gave up because the language gave him too much trouble [emphasis added].
Despite the warnings and the subsequent investigation, the FBI immediately after the bombing denied it had any idea who the Tsarnaevs were.
The Russians then publicly reminded the FBI that the agency had been warned about Tamerlan back in 2011. Intriguingly, there’s evidence the FBI may have had contact with Tamerlan even before Russia’s warning.
Stranger and Stranger
After the defense began asking question about the Russian connection, the tactical battling in the courtroom took a strange turn.
The prosecution accused the defense team of pretending to be FBI agents or government officials in their dealings with the Russians. To back up this charge, the government cited a purported “notification” from Moscow, but failed to provide a copy of it. In response, the defense asked the court to order the prosecution to produce it in court. That hasn’t happened yet.
Whatever else they are doing to save Tsarnaev’s life, his lawyers seem to understand that the story behind the Marathon bombing can’t be understood until his brother Tamerlan’s real relationship with the U.S. government—and the real reason he went to former Soviet Union in 2012—are laid bare.
Inspector General to the Rescue?
In April 2013, the Intelligence Community Inspectors General Forum commissioned a report from the Inspector General of the Intelligence Community (IG IC), ostensibly to determine how the U.S. anti-terror apparatus allowed the Boston Marathon bombing to happen. A lot of it remains classified.
However, in their continuing pursuit of mitigating evidence, Tsarnaev’s lawyers have requested the classified portions of the report because, as the summary of the report itself states:
In this section, we summarize the chronology of events relating to the U.S. government’s knowledge of and interactions with Tamerlan Tsarnaev, members of his family, and other associates before the bombings. Many of the activities and events that occurred during the period discussed below cannot be included in this unclassified summary.
Ultimately, the report trotted out the well-worn “failure to communicate” excuse also used to explain the 9/11 intelligence errors. Notably, it failed to delve any deeper into the government’s pre-bombing relationship with the Tsarnaevs (at least in the unclassified portion).
Since the government refuses to provide the classified sections, the defense is asking the court to compel prosecutors to submit the entire report for a review in the judge’s chambers. That’s presumably with the hope that if the judge sees what’s in the classified sections, he may force the government to hand them over to the defense.
Lost in Transcription
As part of its apparent campaign to obstruct the defense, the government last year stopped providing translated transcripts of Dzhokhar’s phone calls to his parents in Russia. Instead, the prosecution just handed over untranslated recordings. Defense lawyers point out that they were forced to “waste resources” (most notably time) having to transcribe and translate the missing recordings.
But is there more to the government’s obstruction tactics? Is there something in those conversations that the government doesn’t want to come up at trial? After all, it was the Tsarnaev family that repeatedly claimed the FBI tried to recruit Tamerlan as an informant—a claim the agency quickly batted down as ridiculous.
However, the aggressive and well-documented efforts by the FBI to infiltrate the Muslim community with informants and provocateurs makes the FBI’s denials ring a little hollow.
Sen. Chuck Grassley didn’t think the idea was too far-fetched when he asked the FBI if they had tried to recruit Tamerlan as an informant, and tellingly added: “If not, then why not?” The FBI denied having ever tried to do so.
Even Tsarnaev’s lawyer, Judy Clarke, known for her cautious, conservative approach, took the allegations seriously enough to request information on the topic in public court documents.
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All of this brings up numerous questions, not the least of which are:
• How was the Russian government able to collect so much detailed information on an individual living in Cambridge, Massachusetts—then accurately predict he was on the verge of violent jihad—yet U.S. law enforcement agencies remained blissfully unaware, despite having conducted their own investigation?
• What kind of cat-and-mouse international intrigue was going on between Russia, the United States and Tamerlan Tsarnaev?
• Was Tamerlan a pawn in a spy-versus-spy chess game between the United States and Russia that somehow backfired?
• Is the U.S. national security/anti-terror apparatus that inept? Or is there something else going on here?
The government has succeeded in putting a lock on evidence in this case. Some of it might, according to Tsarnaev’s lawyers, reveal mitigating factors that could help Tsarnaev receive a life sentence instead of the death penalty the government is seeking.
But is there another reason for the government’s stonewalling? Is the deeper motive to suppress evidence that could uncover serious government misjudgments or, worse, malfeasance?
Despite the fact that the U.S. government’s relationship with the Tsarnaevs prior to the bombing has great relevance to victims of the bombing—and to the public at large—current national security classification rules make it unlikely that such information will ever see the light of day.
It’s important to note that defense lawyer Clarke has made a career out of keeping high-profile individuals presumed to be guilty out of the proverbial electric chair. In this case, maybe she senses a cover-up.
In the process of trying to keep Tsarnaev alive, it may be that she and her team will make a crack in the walls protecting the truth about what the government knew, and when.
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