Criminal Law: Procedural

Government Files Response to Tsarnaev's Motion to Vacate Special Administrative Measures

By Zachary Eddington
Wednesday, October 30, 2013, 7:00 AM

Last Monday, the government filed its response to accused Boston Marathon bomber Dzhokhar Tsarnaev's motion to vacate the special administrative measures (SAMs) imposed on him and his attorneys. (We previously described the measures and Tsarnaev's challenge here.) In essence, the opposition filing makes two arguments: first, that the court lacks jurisdiction to consider Tsarnaev's motion because he failed to exhaust his administrative remedies; and second, that the SAMs are both properly authorized and constitutional.

The government begins with jurisdiction, an issue that Tsarnaev did not discuss in his initial filing. Prosecutors argue that Tsarnaev's claims are covered by 42 U.S.C. § 1997e, which provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." The government explains that the term "prisoner" includes a pretrial detainee like Tsarnaev and that administrative remedies, including informal complaints to prison staff and formal grievances through the Administrative Remedy Program, are available. According to the United States, Tsarnaev has not pursued those options, and consequently, the court must deny his motion on jurisdictional grounds.

As to the motion's merits, the government rejects Tsarnaev's claim that the SAMs are not "reasonably necessary" as required by 28 C.F.R. § 501.3. The key issue here is timing. Although Tsarnaev emphasizes that he has not engaged in dangerous behavior since his arrest, the government responds that the proper inquiry is what Tsarnaev did before his arrest. Under this retrospective approach, prosecutors argue, "Tsarnaev’s avowed wish to incite others to engage in violent jihad, coupled with his world-wide notoriety, his previous use of others to assist him in his own crimes, and his successful use of terrorist tradecraft to avoid detection, create a substantial risk of public harm absent reasonable restrictions on his ability to communicate with others."

The government then considers Tsarnaev's argument that the restrictions on his attorneys are invalid because only § 501.3(d) allows for limitations on attorney-client communications and the Attorney General did not make an additional finding required by that provision. The government responds that it has neither requested nor implemented any monitoring of Tsarnaev's attorney-client communications. Instead, the sole restriction on Tsarnaev's attorneys is that they may disclose information from communications with Tsarnaev to third parties only for the purpose of preparing his defense. In the United States' view, § 501.3(a), not § 501.3(d), governs limitations on Tsarnaev's communications---and authorizes the restraint on dissemination. Thus, the government insists that the restriction is valid based on the Attorney General's existing findings.

The opposition filing concludes by rejecting Tsarnaev's constitutional challenges. Here, the government asks the court to apply the deferential standard from Florence v. Board of Chosen Freeholders, under which "a regulation impinging on an inmate’s constitutional rights must be upheld if it is reasonably related to legitimate penological interests." According to the government, each of Tsarnaev's three constitutional challenges fails under that test. First, the SAMs do not violate Tsarnaev's right to prepare a defense: although the SAMs may be inconvenient, the government argues, they do not actually prevent Tsarnaev's attorneys from preparing his case and are reasonably related to the government's security goals. Second, the opposition filing rejects Tsarnaev's claim that the SAMs violate the First Amendment, reasoning that the restrictions do limit Tsarnaev's speech but are nevertheless reasonable given the significant risks he poses. Third, prosecutors contend that the SAMs are not unlawful pretrial punishment, as Tsarnaev claims, since they serve legitimate governmental objectives.

Tsarnaev's reply is due on November 4, and a hearing on his motion is scheduled for November 12.