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As the fifth anniversary of the Boston Marathon bombing comes and goes, we can’t help but wonder what Dzhokhar Tsarnaev might have to say for himself — if he were allowed to speak.

For one thing, we’d like to ask him if he could fill in some details about his brother Tamerlan’s mysterious activities in the years leading up to the bombings — much of which the government continues to withhold as “classified.”

Dzhokhar is being held at the maximum-security federal penitentiary in Florence, Colorado — known as the “Alcatraz of the Rockies” — under extreme confinement conditions called Special Administrative Measures (SAMs). He was convicted and sentenced to death in 2015 for his role in the bombing near the finish line of the 2013 Boston Marathon. Tsarnaev is appealing his federal death penalty conviction. (All death penalty convictions are automatically appealed.)

Essentially a form of solitary confinement, SAMs prevent inmates from communicating with all but a few pre-approved individuals. Tsarnaev is not even allowed to communicate with other inmates in the facility. The government justifies the imposition of SAMs by pointing to the possibility that Tsarnaev could try to secretly communicate with criminal compatriots or incite violence of one kind or another.

It’s not clear who that might be, since the government insists that Dzhokhar and his brother Tamerlan acted on their own.

The few statements Dzhokhar made that we heard about actually sounded apologetic and remorseful in nature.

For instance, Sister Helen Prejean, Catholic nun and death penalty opponent, testified at trial that Tsarnaev “had pain in [his voice] when he said what he did, about how nobody deserves that. I think he was taking it in and he was genuinely sorry for what he did.” Prejean had met with Tsarnaev in jail multiple times over the course of two months.

In a final statement in court, Tsarnaev said he “would like to now apologize to the victims, to the survivors,” and, “I am sorry for the lives I have taken, for the suffering that I have caused you, for the damage I have done — irreparable damage.”

Does this sound like what one would expect from an extremist hell-bent on inciting violence?

In justifying the imposition of the SAMs, prosecutors cited, in part, a phone conversation the defendant’s mother recorded and then played for the public “in an apparent effort to engender sympathy,” they wrote. The defense team characterized that concern as “telling.”

“While the government may not want anyone to feel ‘sympathy’ for Mr. Tsarnaev,” a defense motion reads, “that is not a proper basis to impose SAMs.”

Nonetheless, Tsarnaev can’t speak with members of the news media, although the reasoning for that comes across as a little overwrought:

Communication with the media could pose a substantial risk to public safety if the inmate advocates terrorist, criminal, and/or violent offenses, or if he makes statements designed to incite such acts. Based upon the inmate’s past behavior, I believe that it would be unwise to wait until after the inmate solicits or attempts to arrange a violent or terrorist act to justify such media restrictions.

The warden at the US Penitentiary in Florence recently refused our third interview request citing the SAMs. We’ve written previously about our efforts to interview Tsarnaev. Each time the request was denied. A second letter to Dzhokhar was also recently returned — unopened this time.

The warden suggested we take up the matter with “the US Attorney’s Office in the district he was sentenced in,” i.e. Boston. The US Attorney’s office in Boston has not responded.

Ironically, when we previously requested the underlying justification for the SAMs from the Department of Justice (DOJ), it refused to provide it because to “confirm or deny” the mere existence of SAMs would be a violation of Tsarnaev’s privacy.

Tsarnaev’s appellate team has until August to present its written brief opposing the decision of the lower court. A brief is the legal team’s argument about why the trial court’s decision was legally incorrect. The government then files its own brief responding to the appellant’s brief — which the appellant then responds to in a final brief. At that point the case will be fully “briefed” and would then move on to an oral arguments stage.

As far as how long all this will take? “That requires a bit of a crystal ball,” Cliff Gardner, one of Dzhokhar’s attorneys wrote in an email to WhoWhatWhy. Gardner could not guess how long it will take the government to file its brief, but did say that it is certain to be “long and complex.”

Whenever the actual appeal trial finally gets underway, the government will still be firmly in control of the narrative that is fed to the public about Dzhokhar.

Update notice, 4/17/2018, 9:55 pm: Boston US Atty.’s Office spokesperson Christina Dilorio-Sterling responded to our request to reconsider the provision of the SAMs that prevents members of the media from interviewing Tsarnaev. She wrote: “The Attorney General has determined that Special Administrative Measures (SAMs) are warranted to safeguard national security and the safety of individuals and the community. I cannot get into any further detail, and I am sorry that we are unable to assist any further.”

Correction notice, 4/19/2018, 11:37 am: This article originally used an incorrect photo of the federal supermax prison in Colorado.

Related front page panorama photo credit: Adapted by WhoWhatWhy from Dzhokhar Tsarnaev (US Marshals Service / Wikimedia).

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