Time for a Gag Order in Boston Bombing Case

The law enforcement leaks are over the top. It is inexcusable that the FBI or law enforcement officials with whom they shared information are leaking details of a purported confession by Boston Marathon bombing suspect Dzhokhar Tsarnaev.

The Washington Post has more leaks. Among the unnamed sources cited: A senior law enforcement official; a U.S. counter-terrorism official; "a U.S. official who has been briefed on the interrogation and who spoke on condition of anonymity because the investigation was ongoing"; and a U.S. intelligence official. [More...]

It's time for a gag order. The disclosure and dissemination of purported confessions and details of the investigation indicate a lack of self-restraint and a lack of an ethical compass by those responsible. It's up to the prosecutors to control their agents and "senior officials." The media needs to exercise restraint as well. Trials must take place in courtrooms, not living rooms, and the media's complicity in and furtherance of the lynch-mob mentality is shameful.

The media is out for a buck, not to enlighten the public. It wants to sell more papers, attract more viewers and increase its online traffic. It doesn't care whose privacy and constitutional rights it tramples.

This prurient interest in salacious details from pending court cases, particularly before trial when evidence has not yet been admitted or tested, has gotten out of hand.


  • Code of Federal Regulations, § 50.2
    "Release of information by personnel of the Department of Justice relating to criminal and civil proceedings."
  • US Attorney's Manual 1-7.000
  • ABA Rule 3.8, Special Responsibilities of a Prosecutor

    (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.


    Standard 8-1.1 Extrajudicial statements by attorneys

    (a) A lawyer should not make or authorize the making of an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding.

    (b) Statements relating to the following matters are ordinarily likely to have a substantial likelihood of prejudicing a criminal proceeding:

    (4) the existence or contents of any confession, admission, or statement given by the accused, or the refusal or failure of the accused to make a statement;

  • ABA Standards on Prosecution Function

    Standard 3-1.4 Public Statements

    (a) A prosecutor should not make or authorize the making of an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the prosecutor knows or reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding.

    (b) A prosecutor should exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor from making an extrajudicial statement that the prosecutor would be prohibited from making under this Standard.

Courts have granted gag orders for such violations in the past. Occasionally, they even hold the officials responsible. 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.)

From the order restricting extra-judicial comments in the OKC bombing case:

A. None of the lawyers appearing in this case or any persons associated with them, including any persons with supervisory authority over them, will release or authorize the release of information or opinion about this criminal proceeding which a reasonable person would expect to be disseminated by any means of public communication, if there is a reasonable likelihood that such disclosure will interfere with a fair trial of the pending charges or otherwise prejudice the due administration of justice.

B. This duty to refrain from prejudicial disclosures requires all counsel to take reasonable precautions to prevent all persons who have been or are now participants in or associated with the investigations conducted by the prosecution and defense from making any statements or releasing any documents that are not in the public record and that are reasonably expected to be publicly disseminated which would be likely to materially prejudice the fairness of this criminal proceeding.

C. None of the lawyers appearing in this case or any persons associated with them, including any persons having supervisory authority over them, shall release or authorize the release of any extrajudicial statement which a reasonable person would expect to be disseminated by any means of public communication, concerning any of the following matters related to this case:

(1) The prior criminal record (including arrests, indictments, or other charges of crime), or the character or reputation of the defendants.

(2) The existence or contents of any statements given by the defendants to any law enforcement personnel or the refusal or failure of the defendants to make any statements to law enforcement personnel.

(3) The performance of any examinations or tests or any defendant's refusal or failure to submit to any examination, or test.....

That any U.S. or law enforcement official would provide the following to the media is inexcusable. The buck stops with the Attorney General. He needs to stop these comments immediately.

Dzhokhar Tsarnaev admitted to authorities Sunday that he and his brother were behind the Boston Marathon bombings, according to a senior law enforcement official.

Tsarnaev made his admissions to FBI agents who interviewed him at Beth Israel Deaconess Medical Center, where he is being treated for multiple gunshot wounds. He had not yet been given a Miranda warning.

There's also another problem with the leaks. Much of what the media reports from anonymous law enforcement sources early on in cases turns out to be dead wrong. The early reporting on Sandy Hook and Adam Lanza is a prime example.

Here's a "memo" I "wrote" to Holder on TalkLeft about similar improper comments in the case of the Times Square Bomber, Faisal Shahzad.

Dear Mr. Holder:

You and law enforcement agents investigating the Times Square failed car bomb attempt have released information about the content of post-arrest incriminating statements Mr.Faisal Shahzad made to authorities. Your statements are improper extrajudicial comments that fail to comport with both the mandatory rules of professional conduct and the suggested ABA Standards on Prosecution Functions and Criminal Justice.

...Please use your able skills to teach by example. Stick to the rules and let the information and evidence come out in a court of law, where it belongs, and not in the court of public opinion, where its dissemination carries a great risk of prejudicing the accused.

From the OKC bombing case to the 2002 DC Sniper case to the Detroit terror case to the underwear bomber to Faisal Shahzad to Jared Loughner to James Holmes and now the Boston bombing case, law enforcement just leaks like a sieve and is rarely, if ever held accountable. That needs to change.

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    I think the media have given the (5.00 / 1) (#11)
    by Anne on Wed Apr 24, 2013 at 12:01:35 PM EST
    public the idea that there is nothing they aren't entitled to see, hear or know; which is reinforced by their constant, 24/7 presence in situations like this.  That constant presence has the media desperate for new information to keep viewers glued to their air, and it's clear they will get it from whomever they can, however they can, without regard for the legal and due process implications.

    In a situation where there are clearly public safety concerns - suspects on the loose and no idea whether more mayhem is to come - it's important to keep the public informed, but perhaps there needs to be more control over who - or what agency - is disseminating that information; it should not be that what we know depends on what network we're watching, should it?  I mean,  anyone who watched CNN the other night got an earful of erroneous information, and for the people of Boston who were watching CNN to believe that the suspects had been arrested when they were still on the loose could have potentially created more of a public safety threat than if all the information had been coming directly from the police/FBI/Justice Department.

    Beyond, or perhaps, together with public safety issues, the legal implications of all this uncorroborated information being out there are potentially huge. We have become way too situational about when or if we are going to toe the most legally/constitutionally ethical line at this level because this kind of thing flows from the top, and at the highest levels of government, those constitutional lines are blurrier than ever.  

    Perhaps if we had the example of actually holding people accountable for their actions we might have a snowball's chance in hell of getting this under control, but we don't.  You have people like Bush and Cheney and their minions, who have not just skated on being accountable, but have profited.  We have bankers and brokers whose decisions and actions nearly brought the economy to its knees, who rigged the game, and they, too have walked away, free to keep filling their pockets.  We have "settlements" on massive foreclosure fraud that exacted no real punishment on the perpetrators, and no recourse for those affected.  We have people like Lanny Breuer defending the Justice Department's decisions not to go after these large firms, or even the people who work in them.

    The whole system is sick, and I'm not sure those who could do something actually have the stomach for it.

    Certainly, there is no appetite for caring one whit whether Dzhokhar Tsarnaev's rights are protected; he's a "terrorist" after all, and they deserve nothing, right?

    The whole 1st Amendment thing (none / 0) (#14)
    by bocajeff on Wed Apr 24, 2013 at 02:15:17 PM EST
    regarding freedom of the press gets in the way from time to time. We all like whistleblowers when it suits are agenda and hate them when they don't. IMO, this isn't about the press - it's about the people who are leaking. But you can't get information from leakers if you say who they are...vicious circle.

    I agree that it's complicated at times, (none / 0) (#15)
    by Anne on Wed Apr 24, 2013 at 02:33:32 PM EST
    but I think there's are differences - big ones - between whistle-blowing and leaking.

    I have a real problem with all the not-for-attribution, anonymous, senior-officials-not-authorized-to-speak-on-the-matter, providing "facts" as a substitute for real reporting - especially because most of the time, it goes unchallenged - it's just plopped out there and expected to be regarded as true.  Which ends up making it less about providing information, and more about driving one agenda or another, and I don't trust it - I don't know why anyone would accord it much in the way of credibility.

    Most nights, my husband is watching the news as I'm making dinner, and I find myself running water and creating other noise to muffle the dreck that is emanating from the TV.


    It (none / 0) (#1)
    by lentinel on Wed Apr 24, 2013 at 04:00:09 AM EST
    never ends.

    In fairly recent history, from the time of the assassination of President Kennedy to the present, when we need the media and the government to be cautious and respectful of the rights of citizens and of the constitution, they go the other way - into the realm of  tabloids and mob rule.

    When I read that, "a U.S. official who has been briefed on the interrogation and who spoke on condition of anonymity because the investigation was ongoing", I ask myself why this individual is given a pass, when whistleblowers who reveal the evil doings of some in the military or the government are persecuted and prosecuted.

    Whoever the "US official" is who knowingly gave information to the media while the "investigation is ongoing" is should lose his or her job.

    They Haven't Revealed Everything (none / 0) (#4)
    by RickyJim on Wed Apr 24, 2013 at 09:25:03 AM EST
    It is very hard to piece together a narrative of the actions of the Tsarnaev brothers on the fateful Thursday and Friday of last week.  We just get bits, here and there.  For example they are alleged to have killed an MIT policeman on Thursday evening and injured a transit policeman on Friday morning.  What were they doing on the MIT campus?  

    ricky, this has nothing to do (none / 0) (#13)
    by Jeralyn on Wed Apr 24, 2013 at 12:53:07 PM EST
    with leaks. You are just egging people on to do more speculating. This isn't the thread or the place.

    Do these "leakers" get paid? (none / 0) (#6)
    by sarcastic unnamed one on Wed Apr 24, 2013 at 10:06:39 AM EST

    donald I'm deleting your comment (none / 0) (#12)
    by Jeralyn on Wed Apr 24, 2013 at 12:51:13 PM EST
    you can't spell out the word p*graphic here, it brings spam and censor software used at businesses and law firms.

    You can repost if you want.

    The buck stops with the President (none / 0) (#16)
    by David in Cal on Wed Apr 24, 2013 at 05:46:47 PM EST
    I think the buck stops with the President, not the AG.  It's possible that Mr. Obama likes these leaks, because they show the Executive Branch being active.  In any event, I think he could stop the leaks flat by making it clear that he intended to punish any leakers.

    ergth (none / 0) (#17)
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