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Tsarnaev restrictions spark legal debate over constitutional rights

Dzhokhar Tsarnaev.

FBI via AP/file

Dzhokhar Tsarnaev.

Lawyers for Dzhokhar Tsarnaev, the alleged Boston Marathon bomber in custody at Fort Devens federal prison, were prohibited last month from showing him photos of his family, because it would violate new restrictions placed on him.

Under the restrictions, enacted in August, the lawyers needed permission to share conversations between them and Tsarnaev with his physician. The lawyers, veteran defenders, also had to sign letters promising to abide by the restrictions before they could meet with their client again.

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Called Special Administrative Measures, or SAMs, the tight restrictions were described in court filings Wednesday as part of the defense team’s request to ease them — and they have sparked legal debate over whether they serve as security precautions, or isolate the accused terrorist and unduly interfere with his rights to a legal team.

Jessie Rossman, a staff attorney with the American Civil Liberties Union chapter in Massachusetts, said constitutional questions are at issue.

“Our general concern is the impact these restrictions are having on the federal public defenders’ ability to represent their client,” she said.

And, “given the tensions about the case,” she said, “we want to make sure there is no question about the process.”

Aitan Goelman, a former federal terrorism prosecutor who was part of the team that handled the prosecution against Timothy McVeigh after the Oklahoma City bombing that left 168 people dead in 1995, questioned why the measures were not enacted until more than four months after Tsarnaev was arrested.

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“There’s no question that SAMs, in some cases, are appropriate and necessary,” said Goelman .

But, “the weird thing in this case is the government didn’t ask for SAMs to begin with.”

Liz Norden of Wakefield, whose sons JP and Paul each lost a leg in the Boston Marathon attack, said she believes Tsarnaev lost his right to any courtesy when he began firing at police officers in a manhunt after the bombings.

“Torture in my eyes is being at home seeing what my boys are going through — that’s torture,” she said. “Our lives have been turned upside down because of this kid.”

Tsarnaev, who turned 20 in July, faces 30 charges that could bring the death penalty for the April 15 bombings, which killed three people and injured more than 260.

He is also accused in the fatal shooting of MIT police officer Sean Collier several days later.

Prosecutors said Tsarnaev destroyed evidence after the bombings and encouraged his friends to do the same.

Tsarnaev has openly said he was inspired by Al Qaeda, and he hopes his actions inspired others.

US Attorney General Eric Holder in August ordered the restrictions placed on Tsarnaev’s access to mail, media, phone calls, and contact with other inmates and visitors, including his defense team, because of the “substantial risk that his communications or contacts with persons could result in death or serious bodily injury to persons.”

The restrictions had been requested by US Attorney Carmen M. Ortiz.

Holder said in the order that Tsarnaev has received nearly 1,000 pieces of mail from supporters.

Tsarnaev’s defense attorneys, who include Miriam Conrad, chief of the federal public defender’s office in Massachusetts, and Judy Clarke, a California attorney who is an expert in defending death penalty cases, declined to comment for this story, but they said in a filing Wednesday that Tsarnaev had not responded to the mail and that the government omitted that.

“The government also fails to mention that none of this unsolicited mail could be characterized as ‘jihadist’ in nature,” the filing also said. “Rather, it consisted almost entirely of letters and cards from individuals who believe he is innocent and people urging him to repent and convert to Christianity.”

Tsarnaev’s defense lawyers argued that there is no evidence their client has inspired violence or that he would try to inspire further violence.

They said the restrictions unduly put him in near isolation, affecting his mental health, and interfere with their ability to properly prepare a legal defense.

The lawyers asked for a judge to lift the restrictions.

Restrictions under a SAM order, which vary for each defendant, were significantly strengthened after the Sept. 11, 2001, terror attacks and are typically used in terrorism cases.

A May 2009 Department of Justice report stated at that time that 44 inmates were subject to SAMs, out of a total inmate population of more than 205,000, and that 29 of them were incarcerated on terrorism-related charges.

Supporters of SAMs point out the case of Lynne Stewart, a New York lawyer who was convicted of violating similar restrictions when she relayed the message of Egyptian terrorist leader Sheikh Omar Abdel-Rahman. She was sentenced to 10 years in prison.

Prosecutors alleged she communicated his support for a terrorist attack in Egypt.

Goelman, who was an assistant US attorney in New York when Abdel-Rahman was prosecuted, said Stewart carrying his message to the outside was the equivalent of “a Mafia boss directing the family from prison.”

He said if prosecutors find that Tsarnaev has promoted violence and remains committed to jihad, “I think you can make that argument that [restrictions] are completely rational.”

But Rossman said Holder neglected to follow proper protocol in not only failing to find that Tsarnaev remains a threat and warrants the restrictions, but that the limitations on his lawyers are appropriate.

“It’s just worrisome that there doesn’t appear to be any justification for it,” she said.

Milton J. Valencia can be reached at MValencia@globe.com. Follow him on Twitter @MiltonValencia

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