For months, lawyers for Dzhokhar Tsarnaev have been pushing a federal district court in Massachusetts to hold a hearing and address the issue of law enforcement officials leaking details related to the investigation into the Boston Marathon bombing. Lawyers renewed their objection to leaks as they continue to occur, despite the objections of the court.
Tsarnaev faces terrorism charges, including use of a weapon of mass destruction, for his alleged role in the bombing.
The objection to leaks was renewed because law enforcement recently arrested Stephen Silva on July 22. “Law enforcement sources,” a “high-ranking government official,” an “official,” and/or “local and federal law enforcement” leaked allegations that the gun, which was used to kill MIT Officer was provided by Silva by Tsarnaev.
A “high-ranking government official” told ABC News this would “rebut a defense mitigation theory that Dzhokhar was less culpable than his older brother, Tamerlan.” Two sources told the Associated Press that a “9mm Ruger pistol” mentioned in Silva’s indictment was the same one that killed Collier. NBC News also quoted officials as saying Silva was the source of the gun.
These leaks took place despite the fact that, according to Tsarnaev’s lawyers, no such allegations appear in the Silva indictment.
Previously, Tsarnaev’s defense lawyers had expressed concern over public comments by law enforcement officials, which appeared on “60 Minutes” and a program on the National Geographic Channel. The comments related to “FBI analysis of the bombs” and “the release of photos of writings from inside the boat where Mr. Tsarnaev was found.”
The court objected to those leaks and warned the government about the leaks on June 18:
…Let me just say I saw both interviews in real time when they occurred and I was not very happy about it. I thought they were completely unnecessary opportunities for the communication of information which would be inappropriate from active members of the prosecution team . . . . I do think that the prosecution has practical, if not legal control over them. And I expect the government will remind people involved in the case, even formerly, of their responsibility to the integrity of the trial….
Tsarnaev’s defense argues, “As these almost instantaneous leaks of sensitive investigative information demonstrate, members of law enforcement apparently feel free to ignore the Court’s admonition to refrain from discussing the investigation in the media, including trying to marshal the evidence against Mr. Tsarnaev.
“Further action by the Court is now warranted, and we again request that the Court hold a hearing to assess responsibility for the leaks.”
Lawyers requested a hearing back in May but, so far, the court has not held a hearing.
Defense attorneys would like law enforcement officers, who are in charge of the investigation, to testify at a hearing so they can figure out who has had access to information related to the investigation and establish measures to prevent additional leaks.
These leaks by law enforcement officials are extrajudicial statements that could potentially prejudice criminal proceedings. Federal prosecutors should be doing more to stop officials from talking about these sensitive details with media.
As TalkLeft has noted, this has been a recurring issue since at least April 24, 2013, and courts can take action and issue gag orders for violations.
Attorney General John Ashcroft was censured by the federal court in Michigan for his comments in a terror case (the case ultimately was a dismal failure.) The court’s 82 page order is here. In another terror case, the defendants complained of violations by AG Holder . More here. (the motion was denied.)
There was an order in the Oklahoma City bombing case to restrict “extrajudicial comments.”
In the case of Faisal Shahzad, the Times Square bomber, information was leaked on post-arrest incriminating statements that Shahzad made too.
Attorney General Eric Holder has managed to tolerate leaks on these high-profile terrorism cases because it gins up good publicity. And, when one examines the record of President Barack Obama’s administration and its effort to clampdown on leaks, it’s rather remarkable.
Much has been done to send a message and make an example out of people, who leak information related to “national security” and counterterrorism efforts. But, when there have been Good Leaks on the “kill list,” the Stuxnet computer worm and cyber warfare against Iran, the memo justifying the killing of Anwar al-Awlaki and the Osama bin Laden raid, there has not been a fierce public effort to punish the officials responsible.
Similarly, leaks about the Tsarnaev investigation are Good Leaks. They help prop up the mission of the Justice Department. If that were not the case, federal prosecutors would be stomping into a courtroom to demand a judge issue a gag order immediately.
Creative Commons-Licensed Photo of Dzhokar Tsarnaev from Wikipedia