1Are 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.

***

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.

***

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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Anita Thompson Monroe
Anita Thompson Monroe
5 years ago

This case has been puzzling from the beginning. Why did a strong, young boxer suddenly lose his ambition to be a champion? It never made sense. It would make sense if he had been pressured into becoming an informant. Maybe his wife has information that she has not revealed.

Paolo
Paolo
6 years ago

This just in… the prosecution cannot use any evidence against the defendant that it has not previously disclosed to the defense.

disqus_3BrONUAJno
6 years ago

If and when the truth about what the FBI knew, and when they knew it, emerges, it may be discovered that it was the FBI that provided the bombs and the logistics, just as they did in the first attack on the World Trade Center.

oh_look
oh_look
6 years ago

The defense team is going to end up losing the case and the kids life, for not fighting for his innocence.

Ron Leighton
Ron Leighton
6 years ago

Shades of Lee Harvey Oswald?

Cache1989
6 years ago

Here
Free Retail Diablo III
http://diablo.cachemag.net/

EyesWideOpen
EyesWideOpen
6 years ago

Google Russ’ Boston radio interview 1-24-15. Won’t link here.

EyesWideOpen
EyesWideOpen
6 years ago

Russ is interviewed by Ypung Jurks in Boston 1-24-15
Cannot hold a link here, so
Google it on you tube.

EyesWideOpen
EyesWideOpen
6 years ago

Russ Baker radio Interview 1-24-15

https://m.youtube.com/watch?v=qM8y05oR69w

EyesWideOpen
EyesWideOpen
6 years ago

Cannot link the interview but it is on YouTube.

Russ Baker Uncensored: “the Young Jurks Radio” 1-24-15

EyesWideOpen
EyesWideOpen
6 years ago

Russ Baker uncensored!

Young Jurks Radio 1-24-15

https://m.youtube.com/watch?v=qM8y05oR69w

EyesWideOpen
EyesWideOpen
6 years ago

Russ Baker explodes!

The Young Turks Radio 1-24-15:

https://m.youtube.com/watch?v=qM8y05oR69w

jane24
jane24
6 years ago

Great article asking some very relevant questions! There is much that seems to suggest that the FBI, (or CIA?), were involved in this long prior to the actual event and subsequent “investigation.” It is telling I think, that the FBI were likely in contact with Tamerlan Tsarnaev long before the Russians issued any warning and also that the FBI seem reluctant to disclose what was contained in the communication from Russian intelligence to a Congressional committee let alone to Dzhokhar Tsarnaev’s defense. I do tend to believe that this case has been rushed to trial in order to prevent too much “inconvenient” information leaking out over time. Hypothetical,l but I am also curious as to how the USG would have handled things had Tamerlan Tsarnaev been the one standing trial instead of his younger brother…Now that would have been awkward!

Jeff A. Taylor
6 years ago

The trip to Dagestan is the key.

Nothing the feds have said about it makes sense — least of all telling the Globe (even letting reporters listen to interview tapes) that the FBI had absolutely no interest in Russian terrs a radicalized Tamerlan may have tried to meet with but who were taken out by the FSB. Then we have the revelation that there was a “Dagestan scrub” of Snowden doc programs following the bombing, again in complete contrast to the federal narrative. (With the added possibility that scrub could’ve IDd the brothers well in advance of the official timeline.)

The problem is that a defense looking to mitigate against a death verdict ALSO has an interest in spinning the Tamerlan as radicalized in Dagestan story-line rather than digging deeper past obvious problems.

I still maintain that there has been insufficient attention paid to Tamerlan’s citizenship status (he lost his access to the US boxing world because of it) and the obvious vulnerability he had; the need to “earn” US citizenship if approached by US security services — perhaps via a clumsy trip to Dagestan to establish his jihadi street cred, in advance of infiltrating Chechen fighter networks.

daniel wilson
daniel wilson
6 years ago

I have so much to say but can only come up with this for the moment: this story is ridiculously huge. Just to get people on the same page as I am (if they dare or I may humbly suggest they be) , allow me to mention the alleged incident of when Dzhokhar was in the hospital and communicated (loaded word in this context) that he was influenced by Anwar al-Awlaki. Anwar was apparently killed in Yemen by drone alongside Samir Kahn who is said to have made “inspire” magazine. Inspire magazine’s first issue which only came out online had instructions for a pressure cooker bomb which the Tsarnaevs apparently followed. Anwar and Samir both were extremely well known to authorities to the point that one can only see that they were either no real threat in the first place or working alongside the government the whole time. All this phony and entirely fake information is part of the greater narrative that is the alleged threat of terrorism against the average man. The genesis of the majority of the stories in North America we see in regards to this topic can seemingly all be traced to the same government controlled forces. 9/11 , Fort Hood incidents , the underwear bomber , the times square car bomb attempt , the charlie hebdo incident , this Boston marathon incident and many more all directly attributable to Anwar-al Awlaki and the rest of the clearly psy-op , mole-like , counter intelligence , propaganda-esque players being used on a global scale.

EyesWideOpen
EyesWideOpen
6 years ago
Reply to  daniel wilson

That “inspire” story is an oxymoron-no real inspiration-red herring to divert the news media reports.
The backpacks that exploded are gov’t issues by suppliers, “inert products LLC”. ONLY supplied TO GOV’t agencies. Phony pressure cookers & made to order live ones.
Google them.
Raytheon is a distributor, & O’Toole’s wife is a VIP THERE.

https://mobile.twitter.com/michaelhayes/status/558270595356696576

daniel wilson
daniel wilson
6 years ago
Reply to  EyesWideOpen

I’m not sure what you mean by “phony ibex and made to order live ones”. I don’t know know anything about Raytheon from my research other than Heather Abbott works there , which is of note I suppose , and oh , I just came across some information about the backpack which I’ll randomly mention. A doctor , Scott Ryan is said to have removed black nylon from Beth Roche’s apparent wound. I know there’s a lot of little details like that but I just can’t help but enjoy some like that. anyway, thanks for typing!

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