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Boston Bombing News: What About That Man Who Left a Black Bag?

By: E. F. Beall Tuesday December 10, 2013 12:21 pm

On April 17, two days after the Boston marathon bombing, there was a flurry of media activity on the case. At first the most prominent report was from John King of CNN (transcripts: one, two, three). He has it that according to sources there was a breakthrough in the investigation from study of the video from a security camera attached to the Lord & Taylor department store.

Namely, says King, the video revealed a dark-skinned male leaving a black bag in the vicinity of the second explosion. A bit later he says he has heard that an arrest had been made. And he says there would be a briefing later in the day.

However, official sources denied that there was an arrest, and no briefing was ever held. When King went back to his sources to ask what the deal was, he was told that there was “significant blowback at the leaks” and that there would be no further information. (For more details, see Woody Box’s blog entry.)

Then the mantle passed to the putative heirs of Edward R. Murrow. Later that day CBS reported that investigators found a potential suspect talking on a cell phone in the same Lord & Taylor video, describing his clothing, and we immediately recognize him now as Dzhokhar Tsarnaev. The report says that he put a backpack on the ground and left the scene when the first explosion occurred. (The backpack is not further identified, although later the report will say “investigators believe the bombs were hidden in black nylon backpacks.” Dzhokhar’s backpack was in fact light colored.) Further, investigators were working on identifying the man from cell phone logs.

At this point, incidentally, Murrow’s ghost meets John Miller, an ex-FBI agent and CBS News’s “senior correspondent,” who would become its point man on the case henceforth, such as through serving as the recipient of government leaks designed to prejudice the public against Tsarnaev. In this initial location he cites the dilemma of whether or not to release a description of a suspect and thus enlisting the public’s help, but at the same time letting him know you are looking for him. For more details on the CBS report see this Woody Box blog post.

At any rate, from this point on the man who left a black bag would be forgotten, and John King would even issue an abject apology a few days later for believing unreliable sources on the reported arrest in particular. On the next day, April 18, the head of the Boston FBI office would present pictures of the Tsarnaev brothers, while claiming not to know who they were, and asking for the public’s help in finding them, while specifically admonishing us not to look at any other photos. And the case would proceed in the manner with which we are now all familiar.

Except that John King was not the only reporter to speak of the man leaving a black bag. The Associated Press also reported on April 17, as republished a few days ago by the Seattle ABC affiliate KOMO, that a suspect was seen on the Lord and Taylor video, and that the City Council President was told about it. (The text does not specifically say the bag was black, but the ABC reporter in the accompanying KOMO video does. Also, as woodybox notes @ comment #38 here, a photo of a black bag has been removed in the republished version.)

In principle, from the text of the article alone the AP suspect could be Dzhokhar Tsarnaev, as with the CBS report, not the man King reported. But that seems unlikely since it was filed in the early afternoon of Eastern time, as was King’s report and others, while the development involving Dzhokhar was later.

Now according to one of the court motions having to do with the Special Administrative Measures imposed on Tsarnaev’s incarceration the government says that it has supplied the defense with a video showing Dzhokhar Tsarnaev “planting the bomb” (i.e., leaving a backpack that the government alleges but has not proved contained a bomb), presumably the Forum Restaurant video cited in the original criminal complaint, and that is apparently all.

Why not talk about the Lord & Taylor video as well, the one that has the imprimatur of John Miller as giving more evidence that Tsarnaev left the dastardly bomb container?

Could it be because that video also shows a black bag being left by another man (whether “dark-skinned” or not, leaving room for possible embellishment by King’s sources), who may or may not have been the actual bomber (perhaps still more people left packages that day, any of whom could have been the culprit), but who is prima facie just as likely a candidate?

What is really in that Lord & Taylor video?


Boston Bombing News: Why is the Grand Jury Still Meeting? II

By: E. F. Beall Saturday December 7, 2013 10:52 am

When I first asked this question three months ago, it had been five months since the Boston marathon bombing but the grand jury was still meeting. So now it has been eight months and according to the Associated Press the grand jury was still meeting as of Thursday (h/t cv1975). Why? Well, we don’t know, but we know who they heard from.

Two scared kids.

That is Russell family attorney Amato DeLuca’s characterization of the younger sisters of Katherine Russell, the widow of the late bombing suspect Tamerlan Tsarnaev; DeLuca says they testified before the grand jury on Thursday, presumably under compulsion. What would the sisters know of interest to the investigation? DeLuca says “I think what they are doing is what you expect them to do. Look at everyone and talk to everyone who has any possible information, and see what comes of it,”

Well, I’m sure Mr. DeLuca is a competent attorney in dealing with wills or insurance, but he looks out of his depth here. When the one member of the Russell family who would know the most about the Tsarnaev brothers is not called but everyone else is, you have to figure that the interest is in that person herself, not the brothers.

It is true that when Russell’s parents were called in to testify in September her own attorney, the high-powered Josh Dratel, said he had been assured that she was not a target of the investigation. Accordingly, I speculated then that the government was fishing for more possible charges against the defendant of record in this case Dzhokhar Tsarnaev, in the context of the existing indictment showing problems.

However, the younger sisters can hardly have known much about their brother-in-law who lived in a different state (Massachusetts as opposed to Rhode Island), much less his own brother. We know that the FBI claims to have found incriminating material on Katherine’s computer in addition to the computers belonging to the brothers. It would be difficult to prove that it was not put there by her husband rather than her, but perhaps less so if she had been overheard somewhere expressing, say, sympathy for people in the Middle East fighting against the US occupiers.

Things might have changed in the government’s view since September. (If nothing else, it has received more than a little criticism for imposing Special Administrative Measures on Dzhokhar’s incarceration.)

In any case, curioser and curioser.

Tsarnaev’s Torment Continues as Government Helps Out his Lawyers

By: E. F. Beall Wednesday December 4, 2013 10:54 am

Yesterday the prosecution in the Boston marathon bombing case issued a notice of modification to the Special Administrative Procedures (SAMs) that have been applied since Auguast 27 to the incarceration of defendant Dzhokhar Tsarnaev (so Politico, with a link to the filing). Specifically, the modification relaxes the SAMs to allow people like investigators and paralegals as well as the attorneys themselves to be privy to the defense’s discussions of defense and to meet with the client, i.e., essentially allows the defense team to function like one would normally expect as long as its members confine their discussions to what is “relevant” to the defense.

(Also included are a “mitigation specialist” and a “mental health consultant” to advise the defense as to factors in the defendant’s life prior to his alleged offense, in anticipation of a possible conviction and subsequent penalty phase trial. Lately that possibility has greatly excited the MSM, who consider it a near-certainty, but I am not writing for them.)

This is presumably the result of the trial judge George O’Toole’s admonishment at the November 12 status hearing. Namely, while taking the defense’s motion to vacate the SAMs under consideration, he asked the two sides to negotiate the conditions on the defense team in the interim, saying that his role was to decide “not whether SAMs are annoying but if they are limiting” to the defendant’s right to a fair trial.

It seems possible that the defense team members could still be “Lynne Stewarted” if they don’t watch what they say, and end up as criminal defendants themselves, but I’ll leave that aside here. What about Tsarnaev himself?

Let us review what Judge O’Toole feels is “annoying” (pp, 5-6 of the defense motion). Tsarnaev is held in solitary confinement (likened to torture by the UN Special Rapporteur on torture), with no oral or written contact with other inmates and no participation in group prayer. Apart from communication with attorneys he is allowed mail or phone calls or visitors only with immediate family members, with the mail he sends restricted to one letter a week. No physical contact with visitors. Family members cannot divulge content of phone calls to third parties. All such communication is monitored.

As to communication with attorneys (pp. 4-5), it is restricted to what is relevant to the legal defense, presumably according to the government’s definition of relevance. (For example, one imagines that the attorneys are not allowed to inform Tsarnaev that more than a few people don’t believe he bombed the marathon.)

The government’s stated rationale for all this is adequately refuted by the cited defense motion.

I submit that those who ought to be “annoyed” by this situation are right-thinking people everywhere, who should demand an end to it with all due speed.

Once Again the MSM Use Death Penalty Discussion to Obscure Tsarnaev Guilt Issue

By: E. F. Beall Sunday December 1, 2013 3:01 pm

The government’s decision on whether or not to seek the death penalty should Dzhokhar Tsarnaev be convicted of bombing the Boston marathon is not due until the end of January, so you would think the media would find something else to talk about. But for some reason USAToday, and then HuffPo, have thought now a good time to wax eloquent on the subject with articles on how “complicated” the issue is (USAToday), or how weighty is the decision “by Attorney General Eric Holder” (HuffPo, i.e., assuming for some reason that decisions on the most serious attack on US soil since 9/11 are not being made at the highest level of the West Wing).

Of course, these venerable representatives of print and on-line journalism, respectively, see no need to issue the proviso that first he has to be convicted. As USAToday puts it,

There is little argument about the strength of the case against Tsarnaev, charged with 30 criminal counts in connection with the blasts that killed three and wounded more than 260 others. There are photographs of Tsarnaev allegedly planting explosives at the site of one of the bombings.

You might quibble that what is shown in the one photographic image the prosecution has actually said it possesses, a surveillance video, is Tsarnaev leaving a backpack, and that the government would have to prove that said backpack contained explosives. But you are not tasked with writing an account of the punishment to be expected, with no more treatment of actual guilt than is needed to avoid interrupting the story line.

But why write this now?

Well, two things have happened in the last week or two. For one thing, trial judge George A. O’Toole, Jr., has denied most of the Tsarnaev legal defense’s request for additional discovery, saying that it did not, and must, show specifically how the desired materials would assist its case. I suppose that might persuade some publication editors that the defense has been dealt a heavy blow, so that it is time to discuss what will happen post-conviction.

But then there is the second thing. You see, USAToday notwithstanding, there is a lot of “argument about the strength of the case against Tsarnaev,” even if it has not been included in the corporate media coverage. For several months there have been demonstrations, of which the most persuasive is that of Woody Box published in July, that an explosion at the point where the government says Tsarnaev left his backpack could not have produced the pattern of injuries that occurred. There are other arguments centering on the unconvincing claim that a person of Tsarnaev’s personality could be a terrorist, noting that he and his brother did not behave as would be expected of guilty parties in the days immediately following the bombings before they were named as suspects, and pointing to contradictions in the government’s claims about the backpacks and the explosives used.

On top of all this, the second thing is attention to another video that the government has suppressed since naming the Tsarnaevs the culprits. Woody Box has now reviewed the fact that on April 17, two days after the bombing and a day before the Tsarnaevs were put forth, Law Enforcement extending up to the then-mayor of Boston put a good deal of stock in the surveillance camera attached to the Lord & Taylor business, which in particular showed a dark-skinned man leaving a bag at the approximate location of the explosion the government blames on Dzhokhar Tsarnaev. Moreover, concurrently law enforcement told several media that a suspect was in custody, only to deny this later.

(One might get the impression here that the dark-skinned person in the video and the person in custody were one and the same, but I do not believe this to be the case. The detained person is easily identified as the Saudi exchange student Abdulrahman Ali Alharbi, who was wounded in the bombing and then found his hospital bed cordoned off by the FBI and the Boston Police. Eventually, apparently after high level intervention by the Saudi government, he was released. He could not have been the actual bomber unless you believe he was so foolish as not to get out of the way before the thing went off.)

The fact is that the government’s case is full of holes and is an inch from the more adventurous of the MSM beginning to call it to account. Indeed, this has already happened to its move to impose Special Administrative Measures on Tsarnaev’s incarceration. Its rationale that his communications with the outside world suddenly began to pose a threat four months after his arrest is so transparently ridiculous that publications like the Atlantic have offered critical judgments.

(As I have previously argued, the true purpose of the SAMs seems to be to attempt to break the defendant’s spirit and get him to agree to a plea bargain, thereby avoiding a trial which would expose the government’s shoddy conduct of this case.)

Previously the MSM read a defense motion selectively, to mean that all hope for acquittal was lost and that it would offer an “evil older brother” excuse in asking for leniency in punishment. Yes, the government’s case is so assured that it is time to enter a really, really serious discussion of Tsarnaev’s punishment. Let us now use every bit of the two months before “Holder” makes his decision to air it thoroughly. Right.

Go, Scotland!

By: E. F. Beall Thursday November 28, 2013 1:22 pm

My ancestors came over from the land of skeptics and gadflies some years before the union with England was signed on July 22, 1706, and I may go back there if it votes to reverse the agreement on September 18, 2014. So I am naturally interested in the 670-page “White Paper” on the question that was released Tuesday by the Scottish National Party, the governing party in the current “devolved” Scottish Parliament (text: internet version with links to individual parts; pdf).

Of course, there are two questions here: will it happen?, and should it happen? Taking the second question first, I am surprised at the narrow focus on the part of the critics of the proposal. After the release of the White Paper the negative response was swift, for example by a panel of experts assembled by (FDL’s favorite newspaper) the Guardian. They complain that the document does not explain concretely and convincingly how independence would benefit the Scottish people. “On currency, welfare, pensions, EU membership and much more the white paper is more fiction than fact,” offers one pundit.

To me the most weighty argument against independence is that the trend of history right now is toward amalgamation, not separation. One of the great tragedies of the late 20th century was the breakup of Yugoslavia (think the intractable problem of Kosovo), and one of its successes, at least for a time, was the European Union. We are currently watching the formation of an alliance of the BRICS countries, which may act to counter US world hegemony. Why weaken the influence of the UK/Great Britain in international affairs?

The short answer is that in practice the UK is run by London, and Edinburgh understandably doesn’t like it. But the point that particularly progressives should notice is that the Anglo-American empire is reactionary, while an independent Scotland has some chance of not being as much so. (The Scots do not like nukes, for example, and one of the points of the White Paper is that “following a vote for independence, we would make early agreement on the speediest safe removal of nuclear weapons a priority”; see the summary under the heading “Defence.”)

Apart from that, the White Paper offers all sorts of documented (386 footnotes!) promises for a better life for the Scottish people in the areas of taxation, social welfare, education, and more.

Are the promises inflated? Probably, at least in some cases. In Chapter 6 on international relations the document speaks of becoming an independent country within the European Union via a natural process, proceeding from the fact that it is already a part of a member. But Spain’s Prime Minister Rajoy (with an eye to the Catalan separatists in his own country) has already thrown cold water on that proposal, saying that he will only agree to Scotland applying to join the EU from outside it like any other country.

But those of us sympathetic to the Scottish people should consider that even if only half of the White Paper’s vision bore fruit it would be a considerable benefit to them.

Will it happen? The campaign against it on the part of the UK-wide political parties has been relentless, with the result that the most recent poll of Scots shows 38% in favor of independence and 47% against it (thus presumably 15% divided between undecided and various “other” categories), with less than 10 months to go before the vote. So it will be an uphill climb, and the forces against independence are sure to escalate their attack. (Did I mention that the UK gets a lot of its oil from fields off the shore of Scotland?)

But I hope the SNP overcomes the opposition and wins. There I leave it.

November 29, 8:30 PM Eastern BREAKING: RT is reporting that a police helicopter has crashed into the roof of a pub in Glasgow; there are fatalities.

Who Is Boston Bombing Judge O’Toole?

By: E. F. Beall Tuesday November 26, 2013 3:41 pm

In what seems to me to be the definitive report on the November 12 status hearing on the Boston marathon bombing case, Karin Friedemann writes this: Judge George A. O’Toole, Jr. said about the Special Administrative Measures, which were suddenly imposed on suspect Dzhokhar Tsarnaev and his attorneys four months after his incarceration began, and which they were challenging at the hearing, that his court’s purview was “not whether SAMs are annoying but if they are limiting.”

By “limiting” Judge O’Toole meant compromising a defendant’s right to a fair trial by interfering with his communication with the legal defense team. By “annoying,” he meant the personal restrictions on Tsarnaev, specifically mentioning the ban on group prayer with other Muslims. He did not rule on the limiting part, but simply asked the attorneys to negotiate what additional defense team personnel could be allowed to interact with the defendant. As to annoying, he recommended that that be handled in a civil suit brought by a third party.

Annoying. That is what Judge O’Toole evidently thinks is wrong with solitary confinement and denial of human contact except for minimal communication with blood relatives. That is what he thinks of the practice that the United Nations Special Rapporteur on torture has said is close enough to torture that it should be banned “except in very exceptional circumstances and for as short a time as possible.” The ACLU’s brief on the matter was similar, but of course the good judge took care of that by expunging it from the record.

Just who is this guy?

Well, it is easy enough to find out such data as that he was appointed to the federal bench by President Clinton in 1995, where he got his degrees, etc., Which does not tell us much. What about his record?

For one thing, if the Tsarnaev legal defense expects him to actually rule on such points of its motions as lifting the ban on mentioning anything Tsarnaev said to a third party, it could have a long wait. He has yet to rule on a case where he heard the closing arguments in February, 2011, on whether a police promotional exam’s questions discriminate against minorities, even though Boston officials have pleaded that the delay is holding up the police advancement process.

But of course O’Toole was also the trial judge who oversaw the 2012 conviction of Tarek Mehanna on highly controversial terrorism-related charges, and then sentenced him to 17.5 years in prison followed by 7 years supervised probation. According to Rick Hplmes the severity of Judge O’Toole’s sentence was dictated in part because Mehanna’s statement at the sentencing, widely praised elsewhere for its eloquence and passionate honesty, did not express sufficient “remorse” for his actions (which included such nefarious examples as translating the articles of parties fighting the US invasion of their lands into English).

In principle I should probably study the Mehanna trial record to see just where Judge O’Toole’s rulings on objections and the like helped or hindered the government’s case. (It seems that the jury was shown a video of 9/11, with which by common consent Mehanna had nothing to do, and one would like to know how that got in. To be sure, O’Toole didn’t make sufficient legal errors to get the case thrown out, as Mehanna’s appeal was denied earlier this month.) Anyone who wants to do so is invited to enter pertinent discoveries in the comments below. However, I’ve seen enough to persuade me that Judge O’Toole is bad news for Dzhokhar Tsarnaev.

(And btw he excluded the ACLU’s brief in that case, too.)

I don’t suppose the defense can do anything about O’Toole’s overseeing the case. And I don’t suppose his pre-trial decisions are subject to appeal until after a trial which is hypothetical to say the least (because, as I have argued previously, the point of the SAMs is to break Tsarnaev to the point where he will agree to a plea bargain). But at the very least all concerned people should keep their eye on the man.

What Would Require Explanation at a Tsarnaev Trial?

By: E. F. Beall Thursday November 21, 2013 5:37 pm

In late August, after Dzhokhar Tsarnaev had been incarcerated for allegedly bombing the Boston marathon for four months, without incident, the Obama administration’s Justice Department suddenly decided that his communication with the outside world was too dangerous, and ordered him placed under Special Administrative Measures (SAMs). As is noted in the legal defense team’s motions to vacate them, the excuses the government has offered for them are patently absurd, and so there has been speculation as to what the true reasons are for their imposition.

The speculation which has seemed likely to many is that the isolation of Tsarnaev that goes with the SAMs is designed to break his spirit, so that he would agree to a plea bargain and thereby let the government avoid a trial.

(The trial judge is currently considering the defense request to vacate the SAMs, but seems likely to relax the aspects that deal with the attorneys’ access to their client, while leaving his essential isolation intact. In this connection, there may be a media campaign in process to ridicule the seriousness of the isolation, as in this extreme Islamophobic assertion that Tsarnaev is currently getting “catered meals” and “copies of the Quran and other Islamic texts to brush up on his hatred for infidels.”)

It strikes me, then, that it is a good time to review why the government might want to avoid a trial. The following are issues that it could find difficult to get excluded.

Is the FBI or comparable agency continuing the investigation to discover who actually bombed the Boston marathon?

Two separate detailed analyses, by Baby Blake and by Woody Box, respectively, have concluded that the place where the indictment of Tsarnaev says he left his backpack, allegedly containing the second bomb, was not the point of origin of its explosion. In addition, it has long been noted that the photograph of an exploded backpack that the FBI has represented as having contained the first bomb, does not resemble the backpack worn by Tsarnaev’s brother Tamerlan, who it alleges detonated that bomb.

Let me be clear. Whatever the government might be able to demonstrate about the Tsarnaevs’ activities after the marathon bombings, it would not be able to prove that they caused those occurrences themselves to an unbiased jury. I have offered some speculations as to who might have been the true culprits (here and here), but whoever it was, that person or persons are still out there posing a danger to people and property. Is the government trying to stop this?

(The new Boston FBI chief has said he is committed to further investigation, but he seemed to mean uncovering further suspects connected to the Tsarnaevs. The last we heard a grand jury was still empaneled, but it was concerned to question Tamerlan’s in-laws. Of course, there is no reason to believe that the true culprits had any connection to the Tsarnaevs.)

Why would the brothers drive to the MIT campus just to find someone with a gun they could steal? And if they killed Officer Sean Collier, as the indictment alleges, in order to get his gun, why did they just not take it from its position lying on the ground, where first responders found it?

The story was widely circulated that the brothers killed Collier for his gun but could not get it out of its holster. The problem is that it was not in its holster when the body was first discovered. The government also claims to have forensic evidence for the murder, which of course it would have to produce at a trial to avoid one’s natural impression that the murder of Officer Collier was an unrelated incident.

Why did the alleged victim of a carjacking by the brothers on the night of April 18 say in one media interview that they spoke in a foreign language he could not understand (presumably Russian), but give a list of the subjects they discussed to another publication? Is it really only coincidental that the alleged victim was enrolled at a school where students are recruited for drills, whereas this year’s drill held in conjunction with the marathon was unusually prominent? What is the government’s theory of why the brothers needed the car when they already had one?

Why does the government equate what the indictment calls the “IEDs” that the brothers allegedly threw at police during the encounter of April 18-19 with the “WMDs” that were used for the marathon bombing, given that the former entities did not kill or injure anyone, nor cause damage?

Why was Tamerlan Tsarnaev apparently killed while in police custody?

This question has of course been prominent since the night of his death, which the indictment attributes to being run over by his brother Dzhokhar after being shot in the gunfight with police. A since deleted CNN video shows the arrest of a healthy naked man who virtually everyone who knew Tamerlan says is him. The police have said it was someone else, but have not produced the person. Good luck with that at an actual trial. Also, will autopsy photos show tire tracks on the body matching the tires of the SUV Dzhokhar was driving?

How could the confession Dzhokhar Tsarnaev allegedly wrote on the side of the boat where he was captured state that he would meet his brother in paradise when he had no means of knowing that his brother was dead? (Or, if the government is going with a version that no longer makes this claim, what happened to the version that did?) Where is the pen or marker that he used? How could he have written it in the dark? How could he have written it when seriously wounded?

Why was Dzhokhar Tsarnaev apparently shot in the mouth while in police custody?

The MSM have assumed that he must have sustained this wound during the shootout on the street or while he was being shot at in the boat. However, the medical report clearly states that it was the most severe of a number of wounds, and that he required the extremely strong pain medication Dilaudid. It is unlikely that he would have had the strength to climb out of the boat with this wound. Also, according to the report the bullet entered his mouth at an angle to his face, making it less likely that it could have entered via a shot from any distance away.

Why did the interrogation of Tsarnaev at the hospital where he was taken continue while he was gravely injured and after he had repeatedly requested legal counsel and was denied it? What protocols were the hospital’s medical personnel required to follow to cause them to allow this procedure?

In addition to these questions, another set would arise if the matter of Ibragim Todashev found its way into the trial. This might not happen, but presumably it would the instant the prosecution introduced the subject of the 2011 Waltham murders in an effort to impugn the Tsarnaevs.

What were the circumstances of the killing of Ibragim Todashev in Orlando, Florida on May 22 following the FBI’s investigation of his knowledge of the Tsarnaevs?

Of course at the time the FBI could not produce a coherent version of what happened and since then have clamped down on any possibility of an investigation, through such measures as withholding Todashev’s autopsy. That would be impossible to do if the case were introduced at a trial.

Why has the government continued to claim that Todashev implicated himself and Tamerlan Tsarnaev in the Waltham murders, even after his widow Reniya Manukyan said she had records to prove that Todashev was not in Massachusetts at the time of those murders? And did the FBI or other government agency have anything to do with the fact that her bank later canceled her account without offering a reason?

That does not exhaust the questions the might be asked. (What were representatives of the mercenary organization Craft International, whose backpacks resembled the exploded one touted by the FBI, doing at the marathon? Is it true, as witnesses have alleged, that the FBI seriously harassed Todashev and other members of the Orlando Chechen community?) I have only highlighted those that seem likely to most concern the government, and they indeed look worthy of concern.

If I were the President, reflecting on how the government has handled the worst terrorist attack on US soil since 9/11, I would certainly want to avoid having this material come out. To be sure, I would not be so cruel as to add to the suffering Dzhokhar Tsarnaev has already endured by imposing the SAMs in an effort to break him. Perhaps, rather, it might be appropriate to drop all charges along with offering a generous compensation package in exchange for an agreement on his part not to take legal action.

Eric Holder and the Tsarnaev Death Penalty Kabuki

By: E. F. Beall Saturday November 16, 2013 11:50 am

During the course of a wide-ranging interview with the Washington Post on Thursday, Attorney General Eric Holder had this to say about the decision on whether or not to seek the death penalty if Dzhokhar Tsarnaev should be convicted for the Boston marathon bombing:

I’ve asked people at every layer — to the extent that they can — to take a fresh look at it so that I’m getting a bunch of different perspectives and not a repeat of whatever the initial or the latest recommendation is

The interview then paraphrases him as saying that such people “will take into account the offenses, the background and age of Tsarnaev, and his alleged role in the crimes.” And finally:

But at the end of the day, it’s going to be me with a large stack of paper . . . sitting at my kitchen table while everybody else in my house has gone to sleep. And over the course of a few days, I will sit down and make the determination.

It’s the single most weighty thing I do as attorney general.

Right, he’s a poor, lonely guy.

To fill you in, “US Attorney Carmen Ortiz” is to recommend whether or not to seek the DP “to Holder” any day now (after an earlier deadline was waived), and “Holder” is to make the decision by January 31. Incidentally, the late-August order to subject Tsarnaev and his lawyers to Special Administrative Measures (SAMs), after four months of his incarceration, was also from “Holder.”

But what is whoever in the Obama administration is actually making all these decisions actually confronting?

Basically, the reality that said person must confront is that Tsarnaev didn’t do it. Here there are two key points.

First, as Woody Box has shown, the place where Dzhokhar Tsarnaev left the backpack that the government alleges contained the bomb cannot have been the point where the explosion occurred. (Some commenters on previous posts that cite this demonstration have either ignored it or dismissed it with some airy generality. They have not said just what might concretely be wrong with it, and therefore have not contributed seriously to the discussion.)

Second, the motive of “Islamic jihad” that is alleged to underly Tsarnaev’s crime is a misunderstanding based on Islamophobic ignorance. The most ideological commitment that Tsarnaev could have entertained, via his now deceased older brother Tamerlan, would have been the anti-Russian separatism that pertains in the North Caucasus, whose adherents happen to be Muslims in much the same way that the Tamils who recently lost the civil war in Sri Lanka happen to be Hindus. Russia tried to convince the FBI to go after Tamerlan in 2011 on the grounds that he was an “Islamic” terrorist, but that was simply propaganda.

But don’t take my word for it; here is the new FBI director James Comey testifying on Thursday before the Senate Committee on Homeland Security and Governmental Affairs:

We currently assess the threat from North Caucasus-based militants to the homeland to be minimal as they remain focused on fighting against Russian security forces in the North Caucasus.

(True, in this speech Comey has trouble reconciling his statement with the going wisdom that the Boston bombers were from the North Caucasus, but there you have it.)

(And of course, the government claims to have two confessions from Tsarnaev that he did the bombing in allegiance to “jihad.” But the first of these was when he was in the hospital under the influence of the powerful narcotic dilaudid, and would have said whatever his questioner wanted to hear. That the second, the “boat note,” is a clumsy fake is shown by, among other things, its attributing to him the impossible knowledge that his brother was dead.)

Now, although as I discussed in my last post, it is possible and even likely that the Boston
FBI made an honest mistake in identifying the Tsarnaevs as the culprits three days after the bombing, by now the government cannot be unaware that its case is false. True, this fact has not yet penetrated the mainstream media, who remain committed to the public consciousness that Tsarnaev is unquestionably the Boston bomber; however, suspicion of the government’s narrative, at the least, has now been publicized well beyond the usual “conspiracy theory” websites such as infowars, namely in this corner of FDL, at emptywheel, at WhoWhatWhy, and at the new thebostonmarathonbombing website, not to mention a large and growing presence on social media sites.

All of which means that the government is now desperate to avoid an actual trial where the truth would be in danger of coming out no matter how biased the judge and jury.

So of course “Holder” is going to decide for the death penalty. This will have the twin functions of keeping public discussion focused on the penalty rather than the evidence, and of having something to take off the table in a plea bargain so that Tsarnaev can plead guilty and go to a Supermax prison for the rest of his “life,” with the case buried and forgotten.

And of course the true purpose of the SAMs instituted in August is to keep Tsarnaev (the actual lonely guy, WaPo’s portrayal of Holder notwithstanding), isolated and unaware that he has support, in order to break his spirit and make him more amenable to a deal. (The trial judge is currently considering whether or not to lift the SAMs, but the indications are that he will probably relax some restrictions on the legal defense team’s access to their client while keeping the client himself in isolation,)

I will make one caveat. If the defense movement has grown by January 31 to the point where there would be a danger of the fact of Tsarnaev’s innocence spilling over into mainstream consciousness if the death penalty were announced, then the government might back off, cite something like “the defendant’s youth,” and go instead for life without parole, thus hoping for a lesser sentence in the plea bargain that would get the case buried.