Criminal Law: Procedural

Tsarnaev Files Motion to Vacate Special Administrative Measures

By Zachary Eddington
Monday, October 7, 2013, 8:00 AM

Last Wednesday, accused Boston Marathon bomber Dzhokhar Tsarnaev filed a motion to vacate special administrative measures (SAMs) imposed on him and his attorneys. In his motion, Tsarnaev argues that the government has not alleged facts sufficient to justify the measures---essentially a package of additional security restrictions---and that the measures violate the First, Fifth, and Sixth Amendments.

Lawfare will cover the defense challenge, any response by the government, and eventually, resolution by Judge O'Toole of the District of Massachusetts. We also plan to compare the restrictions on Tsarnaev and his attorneys to the restrictions imposed on accused and counsel at the Guantanamo military commissions. We begin below with an overview of the defense's attack on the SAMs.


The government originated the SAMs on August 27, approximately four months after Tsarnaev's arrest on April 19. Under the SAMs, Tsarnaev is detained in a single cell and may not communicate with other inmates. His non-legal visits, calls, and mail are generally limited to immediate family members and are subject to monitoring. Tsarnaev may not communicate with the news media or engage in group prayer with other inmates, and his access to newspapers and other publications is restricted.

The SAMs also impose limitations on Tsarnaev's attorneys. The attorneys may not disclose the contents of Tsarnaev's legal mail to third parties, apparently without exception, and they may disclose information from other types of communications with Tsarnaev to third parties only for the purpose of preparing his defense. The attorneys' staff may not disseminate defense material outside the defense team. Paralegals may meet with Tsarnaev alone if they are precleared by the government, but non-paralegal staff may meet with Tsarnaev only in the presence of an attorney. Tsarnaev's attorneys may provide him with documents related to his defense during visits; they may send him other documents only through the mail.

The SAMs are based on 28 C.F.R. § 501.3, which authorizes the Attorney General to direct the Federal Bureau of Prisons "to implement special administrative measures that are reasonably necessary to protect persons against the risk of death or serious bodily injury." According to his letter originating the measures, the Attorney General found this standard met based on "Tsarnaev's participation in planning and executing the Boston Marathon bombings; his ensuing acts of violence and flight to avoid apprehension; his extensive obstruction of justice; and his explicit and continuing desire to incite others to engage in violent jihad."

In his motion, Tsarnaev begins by challenging the Attorney General's determination that the SAMs are "reasonably necessary." He argues that the government has alleged neither that he has engaged in dangerous behavior since his arrest nor that there are others at large whom he could instruct to engage in criminal activities. As to the obstruction of justice claims raised by the Attorney General, he denies the government's contention that he attempted to destroy evidence prior to his arrest. Tsarnaev also maintains that the government has failed to link his alleged "jihadist" views to a risk of death or serious bodily injury that would justify the SAMs.

Next, Tsarnaev claims that § 501.3 does not authorize restrictions on his attorneys. Under his interpretation of the regulation, only § 501.3(d) allows any limitations on attorney-client communications, and that provision requires an additional finding "that reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism." Moreover, in Tsarnaev's view, even that provision does not authorize restrictions on his attorneys outside of the prison where he is detained.

Finally, Tsarnaev raises three constitutional challenges to the SAMs. First, he argues that the restrictions on his attorneys impair his ability to prepare a defense, violating the Fifth Amendment's Due Process Clause and the Sixth Amendment's Assistance of Counsel Clause. Second, Tsarnaev challenges the limitations on his non-legal communications with the media and others who are not immediate family members, as well as the prohibition on prayer with other inmates, as unconstitutional under the First Amendment. Third, he alleges that the SAMs "leave him in nearly total isolation," violating the Fifth Amendment's Due Process Clause.

The government's response is due on October 16.