Tsarnaev Files Reply in Support of Motion to Vacate Special Administrative Measures

On Monday, accused Boston Marathon bomber Dzhokhar Tsarnaev filed his reply to the government's response to his motion to vacate special administrative measures (SAMs) imposed on him and his attorneys. In his filing, Tsarnaev rejects the government's claim that the court lacks jurisdiction to consider his motion, and he reiterates that the measures are not properly authorized and violate the Constitution. Tsarnaev opens his reply by discussing jurisdiction, which he did not address in his original motion. In response to prosecutors' assertion that he failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e, he explains that his motion challenging the SAMs is not an "action" subject to the statute's exhaustion requirement. In his view, the word "action" in the statute refers to a new civil lawsuit, not a motion in a pending criminal case. Alternatively, Tsarnaev contends that, even if the statute does apply, the court nevertheless has jurisdiction over his motion pursuant to its power to manage the case before it. He further notes that no administrative remedies are available for his attorneys to challenge aspects of the SAMs that limit their activities. Turning to the merits, Tsarnaev repeats his claim that the government has not alleged facts sufficient to justify the SAMs as "reasonably necessary" as required by 28 C.F.R. § 501.3. Although the United States argues that his conduct before his arrest provides a legitimate basis for the restrictions, he maintains that his behavior after his arrest is more relevant and that he has done nothing during that period to incite others to violence. Next, Tsarnaev rejects the government's argument that § 501.3(a) authorizes the restrictions on his attorneys, countering that the provision concerns only "conditions of confinement." As to the constitutional issues, Tsarnaev does not challenge the government's claim that the deferential standard from Florence v. Board of Chosen Freeholders governs his constitutional challenges. Instead, he argues that deference to the expertise of Federal Bureau of Prisons officials is inappropriate here because the U.S. Attorney's Office requested the SAMs and did so four months after his detention began, and he emphasizes that the SAMs prevent his attorneys from effectively representing him. A hearing on Tsarnaev's motion is scheduled for November 12.