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Lost in the mishmash of reporting on the Tsarnaev trial is the fact that Dzhokhar Tsarnaev has never once been allowed to confer with his attorneys in private, without the FBI, law enforcement, and prison officials following every word. The law under which this was possible, called Special Administrative Measures, violates a foundational rule of jurisprudence even older than the US Constitution itself, under the reasoning that terrorist suspects may attempt to pass messages to followers and associates urging them to engage in further terrorist acts.
The effect of the law is to make it impossible for a suspect to tell his attorneys anything he believes would make his jailers angry without certain knowledge that, once the attorneys leave, he will be completely at the mercy of those holding him. Examples of such information would be the involvement of parties in the crime whom the prosecution does not wish to pursue, for whatever reason, or the complicity of the FBI in an entrapment scheme, the past use of which has been well-documented.
Attorney-client privilege, the name of the doctrine which describes the sanctity and importance of the client-attorney relationship to the ability of a suspect to mount a vigorous defense, can be traced back 400 years to English common law.
Ironically, the law was originally conceived to prevent an attorney from having to testify against his own client, in the event that the attorney received incriminating information. The Tsarnaev trial opened with his attorneys saying “It was him.”
Skeptics of the government’s narrative of the crime, some of whom believe the Tsarnaev brothers were not acting alone, are puzzled by the long list of issues which the defense failed to raise aggressively. Law enforcement revealed that it was interested in a woman who accompanied Tamerlan at the Macy’s where he bought five pressure cookers, captured in a store surveillance video. Government reports and the prosecution itself have acknowledged that the bombs were too sophisticated to have been made by amateurs, and would have required training, testing, and the kind of skills that neither Dzhokhar nor Tamerlan had.
Then there is the fact that the Boston FBI already knew who was in the pictures that it released to the public for “help” in identifying the suspects. It had placed Tamerlan, the older brother, on a terrorist watch list in 2011, after Russian intelligence told the FBI that Tamerlan was becoming dangerous. Contrary to the FBI’s claim that, bewilderingly, it had stopped tracking and conducting surveillance on Tamerlan after 2011, a Department of Homeland Security congressional oversight committee report states that the FBI’s Moscow office had been eavesdropping on communications between Tamerlan and Canadian jihadi William Plotnikov during Tamerlan’s trip to Dagestan in 2012.
To be sure, the defense in Dzhokhar Tsarnaev’s trial did file a motion requesting records of all interactions between the FBI and the Tsarnaev family between 2011 and the day of the bombing, but it is not known if the defense succeeded in obtaining such documents. The defense has alleged that the FBI was pressuring Tamerlan to become an informant on the Chechen community in the U.S.
But whatever the defense knows or suspects about other involved parties, it is unlikely that it received much help from the person who would know most about it: the defendant Dzhokhar. Because anything Dzhokhar said, the FBI was right there to listen to it.
It has been noted that Dzhokhar’s demeanor and personality seem to have changed drastically during his time under Special Administrative Measures, which most often means solitary confinement in a 10 foot by 12 foot cell for 23 hours each day, punctuated only by an hour for exercise in what resembles a dog cage. A very real, but little-remarked-upon, danger of Special Administrative Measures is that if mistreatment, psychological torture, or drugging were being practiced against a prisoner, it would be difficult for that prisoner to inform his lawyer of it during visits.
Evidence of Tsarnaev brothers being trailed by agents before bomb blasts
A question which has not been raised by the defense in the Tsarnaev trial won’t seem to go away. The question challenges the veracity of the FBI in every way, down to its willingness to deceive the public, if this question cannot be satisfactorily answered. The question derives its significance from the plain simple forensic fact that once a still photograph is taken, parts or people within it cannot move. Not even a little bit. People move in videos. But not still photographs. Keep this simple fact in mind.
So when a Marathon runner took a photograph of the chaos at Boylston and Fairfield Streets, after the Boston bombs went off, it was on the spur of the moment, before he continued ahead to help the injured. It was not until later that it was discovered that the photograph apparently contained a small figure, a young man, who was of interest to law enforcement. That young man wore a white baseball cap, turned backwards, and seemed to be walking, along with the crowd, away from the location of the carnage. The FBI later declared that the iPhone picture showed none other than Dzhokhar Tsarnaev. Without his backpack.
“Conspiracy theorists,” a term now for people who tend not to take anything the government says at face value, immediately jumped on the image, saying that it looked like something behind the image, about where a backpack would be, had been airbrushed out. At best the argument was inconclusive. But when the prosecution showed the photo again in 2015, within a compilation of surveillance videos, something happened that could not happen in a still photo: Dzhokhar moved. The prosecution’s 2015 image can be seen at minute 9:02 in official prosecution video compilation.
Not much. But remember, this is a still photo. One copy, if it is a copy, looks exactly like another. In the photograph taken by the Marathon runner shown to the public in 2013, Dzhokhar Tsarnaev is well past a wooden door with a bald man standing next to it. In the version of the photo shown to the jury, Tsarnaev is right in front of the door and the bald man.
Is it a different photograph, taken at nearly the same time and from the same angle? If so, it cannot have been taken by the Marathon runner, who told the New York Daily News: “It was one shot and it was the shot that counted.”
The runner told NBC Miami:
“I thought maybe it was a cannon…Then the second one exploded as he was walking toward it. When I saw it, I pulled out the camera and immediately took that picture.”
He then put it back in his pocket and went to help the injured.
That means either someone, not this Marathon runner, was standing right next to him, to capture almost exactly the same angle, and snapped the shutter within no more than a second from the time the Marathon runner snapped his. But the runner did not say anything about another cameraman, nor did another cameraman step forward after the first one did and say, “hey, I have almost the same picture” and hand it to law enforcement.
The Marathon runner’s photo was hailed as a great stroke of good luck in helping to solve the crime, in depicting an image of someone who had been seen in surveillance photos with a backpack, now without his backpack. The hunt for the Tsarnaev brothers was on.
There is one problem. In the etched-in-stone, fixed-pixel world of still photographs, which is what the Marathon runner took, not a video, Dzhokhar moved. “It was one shot and it was the shot that counted” he said.
Another possible explanation, one might think, is that maybe there was a surveillance camera, which just happened to be trained on exactly the same spot at the same angle, and this is a frame from the surveillance camera video. If so, the government should be able to produce the entire video, where we can see Tsarnaev move across the corner at the building of Boylston and Fairfield.
It just so happens, though, that the corner does not seem to have a surveillance camera or anything for that surveillance camera to watch, except a barren brick wall. Below is what was behind the Marathon runner who took the picture, looking back in the opposite direction.
If the source of the photo with Dzhokhar in front of the door and the bald man cannot be produced, then there is only one conclusion. The image shown to the public in 2013 was manipulated in the first place, and carelessly replaced with a different manipulation, or remanipulated slightly differently. There is only one thing we know, that it cannot be one and the same photo as the one the Marathon runner took. Because in still photos, people do not move. Not even a little bit. No matter how much time goes by.
In media report after media report, words come across that give the impression that Dzhokhar Tsarnaev is acting in ways which puzzle even seasoned court reporters, and seems to be hardly at his own trial at all. As an afterthought reports will note that he is “slouched” in his seat or “looking at the floor.”
In a pre-trial hearing he kept smiling at his sisters, the only people he acknowledged, who were sobbing the whole time. BBC reported last month that as his lawyer confessed for him, Tsarnaev:
“slouched in his seat and showed little reaction,”
In a powerful compilation a Youtube user has pieced together media reports and interviews of the defendant’s friends, in his first pre-trial appearance, and it is unanimous that Dzhokhar is behaving like a different person than the one they knew. That was nearly two years ago, and since then he has been subjected to another nearly two years in isolation, with the government able to do anything they want to him. By definition, the type of incarceration in which Tsarnaev has been held, called Special Administrative Measures (SAMs,) permits monitoring of communications between a defendant and his attorney. This means that if a defendant believes he is being drugged or tortured, he could never say so to his attorney without being subjected to retribution. As of May 22, 2009, 44 out of 205,000 federal inmates were subject to SAMs.
“He never had that accent,” said a friend from the school, declining to give his name as he spoke to reporters outside the courtroom.
Fast forward two years, and a former high school wrestling teammate tells the Boston Globe that Tsarnaev seems like a “different guy” who had a different “body language.” Even in images as rough as court artist sketches, a dazed and bewildered Dzhokhar emerges from the artist’s hand.
Court artist sketch, 2013, below
Fidgets and facial tics seem to be an emerging characteristic of defendants held for long periods in isolation without the ability to confer with their attorney privately. At the trial of Jose Padilla, which took place after Padilla spent two years in isolation in the custody of military doctors in the brig, Padilla exhibited “facial tics, unusual eye movements and contortions of his body,” according to one of his lawyers. Padilla had no contact with counsel for 21 months, and any contact was closely monitored after that. Padilla was accused, at first, of planning to blow up a “dirty bomb” which would spread radioactivity throughout the city of New York, though those charges never found their way to the final indictment. Padilla was eventually convicted on a single charge of “material support” for terrorism.
And Fahad Hashmi, after being held for about the same amount of time under SAMs, pleaded guilty in 2010 to material support to terrorism charges – passing on socks and rain-gear to alleged Al Qaeda operatives. Fahad initially denied knowing anything about the clothing, which was in a suitcase brought by a visitor to his apartment in London. But by the end of his time in detention, facing life in prison at trial rather than the 15 year plea bargain struck by prosecutors, Fahad told the judge, who had asked him if he was indeed guilty: “Praise be to God, yes!”
Fahad, Padilla, and Dzhokhar Tsarnaev are all American citizens.
These are alarming indicators in a democracy where competency to stand trial is a key criteria of the legitimacy of the proceedings. The fact is this does not involve only Tsarnaev, but could be anyone.
A defendant not able to speak for himself. A “defense” team which starts his trial by declaring that he is guilty, despite his innocent plea, and ignoring reams of evidence suggesting that the brothers were being handled by outside parties, with full knowledge by the FBI. The only way in which Americans can safeguard what is left of the notion of a fair trial is for Tsarnaev’s family to demand the defense be fired, and Tsarnaev subjected to a full mental competence evaluation.
News compilation, Tsarnaev demeanor and mental state
As the Dzhokhar Tsarnaev trial barrels ahead, in the third day already unveiling the prosecution’s surveillance video and the mystery witness “Danny,” whose name turns out to be Dun Meng, many questions still remain which point to the existence of a third party, or a third party organization.
The most tantalizing indicator, of course, is that we now know someone, a woman, was with Tamerlan when he bought five pressure cookers at Macy’s in Boston. The pair were captured in a Macy’s store surveillance video. Law enforcement is trying to determine if the woman is Katherine Russell, Tamerlan’s widow, who is now under active investigation.
The widow of one of the Boston Marathon bombing suspects is under active investigation and could face potential criminal charges related to the deadly blast, law enforcement officials told ABC News.
Ms. Russell, remember, is coincidentally a granddaughter of Skull and Bones, her father being the son of Richard W. Russell, listed in Eric Samuelson’s Skull and Bones membership list. And not just Skull and Bones, but possibly a descendant of William Huntington Russell (1809 – 1885), a co-founder of Skull and Bones, the famous feeder club for the CIA. Skull and Bones – CIA alumni include Charles S. Whitehouse, US Ambassador to Laos, George H.W. Bush, William Sloane Coffin, and William F. Buckley.
That is on top of Tamerlan’s uncle Ruslan just happening to be the son-in-law of CIA, Iran-Contra scoundrel Graham Fuller, yes, that Graham Fuller, and Ruslan himself a USAID cover for CIA. USAID in Chechnya does not hire social workers.
How many crazy coincidences can you have in one crime? Remember the Tsarnaev brothers were pretty much just working class kids. Regardless of whether or not the woman in the Macy’s video is Russell, the mere exposure of the fact that someone was with Tamerlan, not his brother, leaves a gaping hole in the two-lone-perpetrators theory. Even if it was not Russell, who was it? Will the defense even call attention to the video, and suggest that the brothers were not acting alone? If not we’ll know it’s a kangaroo court.
It stands to reason: if the defense’s main argument is that Dzhokhar was under the influence of his older brother, it is a small step to ask the next question. Under whose influence, perhaps, was Tamerlan?
The video surveillance compilation presented by the prosecution splices still images into various pieces of surveillance video along a timeline, starting from when the suspects round the corner at the Whiskey Steakhouse, to them fleeing down Boylston Street. But it conveniently omits the video segment of a man with an earpiece apparently tracking the brothers around the corner at the Whiskey (at minute 3:20 in this video.) If the man is simply a bystander who happens to make a communication as soon as the brothers pass, why did the FBI digitally mask his face before releasing the video to CNN? The faces of no other bystanders are masked, and in images released by the FBI the faces of thousands of people are splashed across the Internet.
The promised scene of Dzhokhar setting down his backpack is believable enough, but what is less believable is that the backpack weighs 30 pounds. Dzhokhar handles the backpack as if it contains notebooks and a sandwich, not two 15 pound barbells worth of steel and gunpowder.
Much was made of a still photo allegedly captured by Marathon runner David Green, in which Dzhokhar can be seeing fleeing with the crowd. Green’s capture of an image of the suspect was heralded as a stroke of good fortune. Green’s oft-told story is that he, a marathon runner finished with the race, caught the shot in a moment of luck after the second bomb went off. But in the video- still photo compilation which is shown to the jury, a photo emerges which is much like Green’s but cannot be Green’s, because the angle is slightly different. Green never mentioned anything about taking two photos, and in fact told the New York Daily News: “It was one shot and it was the shot that counted”.
Was someone else taking the photos besides Green? The original Green photo was ridiculed as being a Photoshop job, hiding the backpack, although in the moving video it is clear neither of the brothers have their backpacks. Dzhokhar is in front of a brick wall in the original Green photo, but in the prosecution’s current version he is in front of a wooden door.
Video shown to jury by the prosecution
Even if we lay those issues to rest, and grant the prosecution’s assertion that the brothers had backpacks and put them down, so did other men, never adequately explained by the police, nor what they were doing running away without their backpacks. Then the stubborn fact that neither of the brothers’ backpacks match the one released by police in a photo, showing a square logo on the top flap. The brothers’ backpacks were also a different color from the one shown by police.
From Reddit discussion uncovering paramilitary men missing backpacks Where does this go? A well-known journalist who distrusts the official story told me that the brothers almost certainly were involved on some level. Riding with police and reporters who were there, he said it is just too unlikely that so many police could be collaborating on the basic events of the night, and he opined they were truthful. There was shooting going on back and forth with the brothers, although the officer hit was possibly hit by friendly fire.
Was the plan for the brothers to participate in a drill, and put the backpacks down at a certain time and place? When they saw the jaws of the trap snap shut, did they decide to make a run then go down shooting? It is intriguing that authorities were conducting what was announced as an exercise that morning at the starting line, involving bomb-sniffing dogs and rooftop snipers.
There is a cryptic note presented by the prosecution from Dzhokhar, which said: “They will spend their money and they will regret it and then they will be defeated.”
Could this have meant the brothers were being paid by handlers? It is important to remember Tamerlan was an alien and had possible deportation at any time to use as a club against him, never to see his daughter again.
The carjack victim, now unmasked as Dun Meng, was convincing enough as a man thinking someone was trying to kill him. Nevertheless it is curious that he has told conflicting stories of his escape from Tamerlan, in one version Tamerlan being in the car, in the driver’s seat, when Meng makes a break out the passenger door, in the other Tamerlan being outside the car pumping gas. One would think one would remember a detail like that when you think you are about to die.
Surveillance video: Dun Meng escape
As well, the defense, if you can call it that, would be remiss to not, at the very least, subpoena cellphone records just to confirm that it was Tamerlan that Dzhokhar was talking to four minutes before the first bomb went off, as shown in the prosecutor’s surveillance montage.
That video montage, notably, does not support a repeated contention to the media, by the FBI and Massachusetts Governor Duval Patrick, that Dzhokhar did not “react” when the first explosion went off, as he clearly suddenly looked in the direction of the blast like everyone else, then fled. Massachusetts Governor Duval Patrick said on Meet the Press in 2013:
“The videotape is not something I’ve seen, it’s been described to me, in my briefings, but It does seem to be pretty clear that this suspect took the backpack off, put it down, did not react when the first explosion went off and then moved away from the backpack in time for the second explosion. It’s pretty clear about his involvement and pretty chilling, frankly, as it was described to me.”
There also remain the facts that:
– The brothers at one point were apparently trying to surrender, but the police were having none of it, as they yelled “We didn’t do it!” from behind their vehicle in the dark in Watertown.
– That the existence of the incriminating note in the boat Dzhokhar was hiding in was announced a full month after the capture, even as the media reported every other incriminating detail. On this score it is only a matter of time before a true handwriting sample from Dzhokhar surfaces and Internet sleuths will compare the handwriting.
– Then there is the strange video which cannot be ignored of a naked man looking very much like Tamerlan in custody, and identified by his aunt as him. A woman who may have changed the man’s diapers said without hesitancy: “That’s Tamerlan.”
– Oh yes, and let’s not forget that poor chap in Florida, Todashev, Tamerlan’s friend, who caught three bullets in the back while unarmed and so now will never be able to tell anything he knew.
It is the FBI’s own prevarications and this murderous behavior which is most damning. The FBI claimed that it did not know the brothers before April 15, 2013, when in fact it had interviewed them numerous times, along with the family.
Not only did it know them, it let Tamerlan slip to Chechnya in 2012, even as he was on at least two terror watch lists. The FBI attributed the error to a name misspelling somewhere along the line, as if an Edward Snowden could elude Homeland Security and leave the country just by misspelling his name on a document.
The FBI undoubtedly knew Tamerlan was in Chechnya, becoming increasingly radicalized, because the Department of Homeland Security report on the Marathon bombing tells us that the Moscow office of the FBI had intercepted “electronic communication” between Tamerlan and William Plotnikov, the Canadian jihadi who was killed in a gun battle with Russian security forces two days before Tamerlan departed the region (page 15 of report, “The Road to Boston: Counterterrorism Challenges and Lessons from the Marathon Bombings.”)
The FBI’s own behavior, as well as other factors like the clear attempt to kill Dzhokhar and never let him see trial, points to the brothers being involved as patsies of some sort, perhaps playing secret agent, and being told to be at certain places at certain times. Some have pointed out that the bombs were fairly sophisticated, in their power and destructiveness, and were likely beyond the reach of an amateur bomb-maker.
Police attempt to kill defendant while hiding in boat
The murder of Sean Collier is not cleared up much by the video presented by the prosecution, which shows two men, who are not identifiable in the video because of the dark and great distance, approaching Collier’s patrol car and killing him. An MIT student witness, Nathan Harman, in his testimony alternately switched from the pronoun “he” to “they,” according to CNN. Coaching? Nevertheless Harman at this point seems credible enough. He identified Dzhokhar directly as a man with a “big nose.” There is no reason to think he is lying. But could a look-alike team of assassins easily be found to do this job? Remember, we already know the FBI lied about at least one thing.
An inconvenient moment of candor took place when MIT police Sargent Clarence Henniger, who was the first on the scene of the Collier shooting, revealed in an interview with Boston’s WBUR radio that FBI agents were already watching the house in which Tamerlan lived in Cambridge even before he was identified Thursday night, four days after the bombing. Four days had elapsed before the Bureau released the first surveillance photos of the suspects and asked the public for help in identifying them. Henniger said:
“The word was out regarding the suspects. We knew that his house was under surveillance, and the feds were all over the city of Cambridge.”
The FBI found this admission alarming enough to issue an official denial of Henniger’s claim, saying, “No one was surveilling the Tsarnaevs and they were not identified until after the shootout. Any claims to the contrary are false.” But when pressed, Henniger stuck to his story, saying “to some degree I’m sure [the FBI] knew.”
The brothers’ mother and father have both steadfastly maintained that the brothers were “set-up”: The mother told Russia Today, as reported by Reuters:
“He (Tamerlan) was ‘controlled’ by the FBI, like, for three to five years…They knew what my son was doing. They knew what sites on the internet he was going to.”
The mother, Zubeidat Tsarnaeva, said:
“They were telling me that he was really an extremist leader and that they were afraid of him. They told me whatever information he is getting, he gets from these extremist sites. They were controlling him…I am, like, 100 percent sure, that this is a set-up,”
The brothers’ father, Anzor Tsarnaev, told Russia’s Channel One television:
“I do not believe that my sons could have planned and organized the terrorist act, because they knew U.S. national security services were keeping an eye on them…They (the security services) said ‘We know what you eat, what you read on the Internet.'”
Indeed, the Boston Globe reported in March of 2014 that Dzhokhar’s defense team had asserted that Tamerlan Tsarnaev “had been encouraged by the FBI to be an informant and to report on the Chechen and Muslim community…” In a 23-page court filing, the attorneys requested records of any contacts between the FBI and Tsarnaev relating to this.
The overriding fact to all of this, of course, is that after two years in isolation and with God-knows-what being done to him, Dzhokhar is described by people who know him as being a shell of himself, and in newspaper accounts as all but comatose. During one day’s proceedings the AP described the defendant as “slouched in his seat and [showing] little reaction as the case unfolded.” A former high school wrestling teammate of Dzhokhar’s recently told the Boston Globe, of a recent court appearance by Tsarnaev, that he seemed like a “different guy” who had a different “body language.” Is Dzhokhar doped up?
The public must insist that Dzhokhar take the stand, as he is doomed anyway, and will get the death penalty no matter what his lawyer does. If there were other plotters, there is only the hope that there is a braincell left somewhere deep which will blurt out the wrong thing for the prosecution. His initial plea was not guilty, after all. The event marked a warp-speed increase in the demonization of Muslims in America, and the introduction of the first ever, voluntary, city-wide lock-down whenever a man with a gun is loose. A very convenient tool for dealing with pesky anti-wall Street-type protesters.
Dzhokhar must take the stand, as a dead man to clear his name. Whatever he did, he and his brother did not do alone, and America must know the truth.