Jahar’s Appeal Possibilities, Part 3: SAMs and the ACLU’s Amicus

by Mary W Maxwell, LLB

Jahar’s appeal will have oral argument at Boston’s federal courthouse six weeks from now. I am trying to think of any new angles that can be used to persuade the judge, Juan Torruella, and the other two judges on the Appeals panel, to release the convict from prison, as they surely have got the wrong man (Jahar). It is within their power, right then and there, to “storm the Bastille,” so to speak.

So far in this series, we saw in Part 1 that the Federal Rules of Appellate Procedure allow the judge to “stay the proceedings.” I recommended that they do so on the grounds of the “abuse of process” that characterized the trial.

Note: in 2005 in Boston, US District Court Judge Mark Wolf released murderer Vincent Ferrara from prison on the grounds that the prosecutor had deprived him of due process (had unfairly caused Vincent to plead guilty).

In Part 2, I went for a different tactic, showing five ways Massachusetts persons could intervene. One way was to with protest the SAMs — “special administrative measures” placed on Jahar that make him incommunicado. The SAMs derive from 1996 anti-terrorist legislation — they supposedly prevent a convicted terrorist from making plans in prison to cause harm on the outside. (Reasonable enough if the person is actually apt to do that.)

After Jahar’s original trial, the American Civil Liberties Union, the ACLU, was admitted as an amicus curiae. As early as November 2013 they begged the court to vacate the SAMs.

Their brief is Document 139-1 (page 2-17) of Case 1:13-cr-10200-GAO.  The ACLU decided to limit their complaint to the fact that SAMs thwart the attorney-client privilege. Some of the ACLU’s wording sounds “off” to me, given that they accept the fact that the Defense was actually trying to get justice for Jahar.

Actually, the Defense obstructed justice from the beginning. Jahar’s attorney Judy Clarke stood up on Day One and said “It was him.”  She and her team — Public Defenders with a $5 million budget — did nothing to expose the blatant falsity of the prosecution’s case. Indeed, once they had said “It was him” they were hardly in a position to say it wasn’t him.

As Jack Graham puts it, “They threw the case” — thus setting Jahar up to be “judicially murdered.” One hopes that the judges see through this and in fact discipline the miscreants. (Note: Jack Graham of the Minnesota Bar is the counsel to the group of three amici of which I am honored to be a member.)

What Are the SAMs?  Special Administrative Measures are not found in the codified laws of Congress, the USC (United States Code).  The are found in the CFR — the Code of Federal Regulations, at 28 CFR 500.  On April 4, 2007, the DoJ’s Bureau of Prisons published a final rule as follows:

AGENCY: Bureau of Prisons, Department of Justice

“SUMMARY: … The previously existing regulations authorized the Bureau of  Prisons (BOP) at the direction of the Attorney General, to impose special administrative measures with respect to specified inmates  based on information provided by senior intelligence or law enforcement  officials, if determined necessary to prevent the dissemination of  either classified information that could endanger the national security, or of other information that could lead to acts of violence  and/or terrorism. The …  measures may be imposed [for] up to one year….[and are renewable].

“In addition, where the Attorney General has certified that reasonable suspicion exists to  believe that an inmate may use communications with attorneys… to facilitate acts of violence and/or terrorism,[it can] monitor or review such communications to deter such acts, subject to specific procedural safeguards, to the  extent permitted under the Constitution and laws of the United States.

“[And] the head of each component of the Department of Justice that has custody of persons for whom special administrative measures are determined to be necessary may exercise the  same authority to impose such measures as the Director of the Bureau of  Prisons. Effective date: June 4, 2007.”

Center for Constitutional Rights Reacts to SAMs

The Allard Lowenstein International Human Rights Clinic, of the Center for Constitutional Rights at Yale, tells us:

“Even those prisoners who secure a lawyer risk having their cases dismissed in court if the prisoner has not “exhausted” the BOP’s Administrative Remedy Program (“ARP”). Exhausting the ARP requires prisoners to (1) raise the issue of concern informally with BOP staff, (2) wait for the staff’s response, (3) obtain and file a Remedy Form, (4) wait for the prison’s response to the request, (5) obtain and file a Regional Appeal Form, (6) wait for the BOP Regional Office’s response, and (7) obtain and submit a Central Office Appeal Form. BOP officials may return without response any filing that fails to adhere to extensive regulations concerning form and timing. Attorneys may not submit these complicated requests or appeals on the prisoner’s behalf.”

Amazing! The Clinic authors opine:

“SAMs undermine the fundamental principle of democratic accountability by silencing those who have experienced the harms of SAMs. Prisoners themselves are categorically prohibited from speaking to reporters, and the SAMs gag order allows the government to criminally prosecute other individuals for repeating anything a SAMs prisoner has said. Consequently, family members of SAMs prisoners often adopt a policy of declining interviews with journalists altogether. [Aha!] The same is true for lawyers, particularly following the prosecution of Lynne Stewart.”

Lynne Stewart’s Case

A blind Muslim cleric, named Sheik Omar Abdel-Rahman, was accused of something or other (it does not matter what, for this discussion of SAMs). He was placed under SAMs. His lawyer was the famous civil rights expert, Lynne Stewart.  She was arrested for violations of the 1996 Anti-terrorism Act. She went to prison but later got compassionate release, due to cancer. She died at age 77.

In December 2006, the Magazine Satya sent journalist Kymberlie Adams Matthews  to talk to her.  Here is part of the interview:

What exactly are “Special Administrative Measures” and what effect do they have on you as a lawyer?

The Bureau of Prisons may in certain cases, when the justice or state department tells them, place upon prisoners rules that isolate them: cutting them off from the telephone, visitors, family, the media, etc. This is what they put on the Sheik in 1997.

And so Abdeen Jabbara, Ramsey Clark and I — in order to continue being the Sheik’s legal team — had to sign an agreement that we would respect and follow these rules, the SAMs. But we operated with an understanding that the government knew we had to do the legal work, that certain things were still permissible even though the SAMs seemed to say we couldn’t do them. We had to be able to do our job.

So because you took the press release to the media, you violated the SAMs?

The SAMs did prohibit me from talking to the media on the Sheik’s behalf, but they also said if I broke any of the rules I may be cut off from my client. It never said I would be indicted and face 30 years in prison!

Knowing what you do now….would you do it again?

I believe with my mind and heart it was the right thing to do. But I probably would do it differently. I believe I did the right thing as a lawyer. At the moment of my conviction, I think I said, “I’d like to think I would do it again.” I mean the kind of lawyering that says the client must be protected from the ravages of the government. Yet they have used this to make a chill effect on the profession. And that’s frightening.

What about the fact that the government has total access to privileged conversations between a client and a lawyer?

When this case first became public, I think that was the first thing most people stopped at. That the government could interject a microphone and a camera into the visiting room of a prison where a client is talking to a lawyer and listen to every single thing being said—it’s like putting a tape recorder in a confessional booth or a psychologist’s office. In the marriage bed!

These are privileged conversations. We call them privileged because as a society we have an interest in keeping certain things from being listened to by the government. I was shocked when I found out. I once said to the press, don’t ask me about what I am doing wrong, ask what the government is doing listening in on attorney/client conversations.

Do you think the Sheik was innocent?
To be honest, I believe he was wrongfully accused and wrongfully convicted. I do not believe he was guilty in this case.

You’ve remained very outspoken throughout the trial. In your opinion, how far should one be willing to press for a cause, a belief system? 

I think we are all different and some of us just have the will. It’s funny, I am told I am courageous, but I have a hard time wrapping myself around that word. I feel what I do comes so naturally for me, I don’t have to think about it.

The more you do, the more you have energy to do it. The more you do, the more people you meet, the more strength you build. I guess what I am trying to say is that activism is the solution to a lot of people feeling powerless.  — end of Satya interview.

Thank you, Lynne.

Cheryl Dean Wrote to Loretta Lynch

Gumshoe author Cheryl Dean wasn’t having it re SAMs for Dzhokhar (as she correctly calls young Tsarnaev). In December 2015 she sent the following letter to the US Attorney General Loretta Lynch:

Dear Madam Attorney General,

Myself and many others ask you to modify the Special Administration Measures that Dzhokhar Tsarnaev has been living under for the past 22 months. We are advocating for him: he has been silenced, and is not allowed to speak for himself. We ask that Dzhokhar be allowed to communicate by phone and mail, and have visits from any of his relatives.

The Special Administrative Measures requested by Carmen Ortiz clearly violate the First Amendment rights of Dzhokhar. All citizens have the right to freedom of speech. That would have to include speaking to all one’s own family members, and without the FBI monitoring and recording everything that is said.

His parents can speak to him twice a month for only 15 minutes, although not about his case, or much else, while being monitored live, being recorded by an FBI agent. Is that necessary? Why? Is someone trying to hide something? There is something terribly wrong with this.

Clearly Cheryl Dean hit the nail on the head: they have something to hide. I feel sure the DoJ will never let Jahar speak, unless forced by a court, as once he is in front of a camera or microphone he may be asked “Hey, Jahar, how did you get into the boat?”  And then sooo many heads will roll.

Conclusion to Part 3

As stated above I am fishing for any angles that could stop this bus from careening down the hill. It is very late to enter new requests, but one could do so regarding the SAMs. Recall Gumshoe’s reports on McCoy v Louisiana. The US Supreme Court held, last year, that it was not permissible for Mr McCoy’s layers to force him to plead guilty:

“Held: The Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist that his counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Pp. 5–13.”

I believe Jahar tried to reject the Public Defenders’ services. But how can we know how he feels about them today? Shall I reach for the phone and give him a ring?  Oops. No can do.

As you can see, this is a situation in which it does NOT suffice for the Defenders to assure us that he wants them. This is a 100% conflict of interest.  Jahar is gagged — thus the court cannot know if he wants to pursue a not-guilty plea. He MUST be given a chance to speak to a third party.  I recommend his aunt, Maret Tsarnaeva, who is an experienced member of the Canadian bar. If not Maret, then someone else.

This cannot be left unresolved.  The SAMs are not so important (recall they are only a regulation, not a law), that a man’s life should be jeopardized. How about a “panel of 6” takes over the matter and pursues it until the point where they know if Jahar accepts or rejects the way his Defenders are doing the Appeal. If you wait it will be too late.

What of the Boston Symphony Orchestra?

For anyone who wondered why Seiji Ozawa’s photo appeared at the top of this article, the reason has to do with Judge Torruella’s age and vigor. The good judge is 86. Should we think he cannot be aggressive enough to go on the attack when needed for justice in the Tsarnaev appeal?

Well, consider Seiji Ozawa former conductor of the BSO.  He was born in 1935. When he was 80 (in 2015), he conducted a symphony in Japan as vigorously as anyone could wish. Please watch this for a minute:

Give it to ’em, Seiji!  Take that, and that — and hurry!