A piece of the WMD in question, according to the FBI.
There’s something very ironic in the charge filed against Dzhokhar Tsarnaev today:
Boston Marathon bombing suspect Dzhokhar Tsarnaev was charged today with using a weapon of mass destruction in the April 15 attacks that ripped through a crowd at the finish line of the world-renowned race, killing three people and injuring scores of others
Tsarnaev’s initial court appearance was conducted today by a federal magistrate judge in his hospital room, said Gary H. Wente, circuit executive for the federal courts in the First Circuit. Tsarnaev was able to respond to inquiries, nodding or mouthing yes or no, according to a person familiar with the proceedings in the room…
I realize that the law can have definitions that don’t necessarily match the ones we use out in the real world. But if those pressure-cooker bombs were WMDs, then we found plenty of them in Iraq. Every one one of those IEDs built from artillery shells would qualify.
Usually, we make a distinction between such conventional weapons and weapons of mass destruction, which in a military sense refers equally to nuclear, chemical and biological weapons.
But in civilian criminal law, it’s different, according to Wired:
The actual bomb Tsarnaev allegedly constructed and detonated is pretty much the opposite of what people think about when they think “weapon of mass destruction,” a vague term that usually means a weapon carrying an unconventional payload, like a nuclear, chemical or biological yield. The FBI affiant, Special Agent Daniel Genck, confirms the bombs used pressure cookers for their hulls — “of the same brand” — packed with “low grade explosive” containing BBs and nails and a “green hobby fuse.”
Bashar Assad’s chemical arsenal this ain’t. But, as Danger Room explained after U.S. citizen and anti-Assad fighter Eric Harroun, faced similar charges, “weapon of mass destruction” is a very broad category under federal law. Grenades, mines, missiles and rockets all apply. So do homemade bombs of the sort Tsarnaev allegedly constructed. About all that doesn’t apply are firearms and pyrotechnics gear. No one ever said the law had to coincide with military terminology.
It’s an interesting choice for an initial charge. Not murder or accessory to murder. Not resisting arrest. I’m going to be interested to learn more about this prosecutorial decision…
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It’s because it’s a federal charge. No one he killed was a federal agent. Generally, you don’t see murder charges in a federal prosecution when no federal agents were killed. (For comparison: McVeigh was charged with conspiracy to use a WMD, use of a WMD, destruction of fed. property, and murder of fed agents.)
One of the interesting things about the WMD charge is that one of the elements has to be:
(A)the mail or any facility of interstate or foreign commerce is used in furtherance of the offense;
(B)such property is used in interstate or foreign commerce or in an activity that affects interstate or foreign commerce;
(C)any perpetrator travels in or causes another to travel in interstate or foreign commerce in furtherance of the offense; or
(D)the offense, or the results of the offense, affect interstate or foreign commerce, or, in the case of a threat, attempt, or conspiracy, would have affected interstate or foreign commerce
Remember you’re dealing with the Federal government here – not the State of MA. The Constitution doesn’t give the federal government a general police power or authority to prosecute general crimes. See Article III. Accordingly, when the feds want to prosecute crimes, they need a federal “hook”. As we saw with (albeit a different area of law) healthcare litigation, it’s commerce. That’s why McVeigh wasn’t charged with all 168 deaths.
What makes this more interesting is that MA doesn’t have the death penalty. You can bet your sweet bippy that if the feds had somehow botched the McVeigh trial, Oklahoma would have charged him with murder.
My bet is that Tsarnaev pleads guilty and trades information to get the death penalty taken off the table.
Good explaination Bryan of what a federal crime is. But unless we stretch the word “commerce” I don’t see this as a Federal case. Not that I would have a problem with making that stretch. Just doesn’t seem obvious like the Oklahoma City case that clearly involved federal property.
The Federal nexus or “hook” is pretty broad. At least since 1942.
Perhaps this is just the first of multiple charges to be filed. He was also charged with causing death by use of WMD. They read him his Miranda rights, so maybe there’s plenty of evidence to convict him for those crimes even without having to use his own testimony. Does double jeopardy apply if you are changed with a different crime related to the same incident? Could they also be holding off on other charges in case they cannot convict on the initial charges? (Not a rhetorical question.)
To be clear he’s currently charged with:
1. Use of a Weapon of Mass Destruction 18 USC 2332a(a)
Code Section here: http://www.law.cornell.edu/uscode/text/18/2332a
2. Malicious Destruction of Property Resulting in Death 18 USC 844(i)
As Brad has pointed out, a “weapon of mass destruction” has been defined by Congress to basically be any type of bomb. It’s an extremely broad definition – but that’s the definition that Congress went with.
Also, bud commented that he’s not sure about the interstate commerce “hook”. The Boston Marathon absolutely impacts interstate commerce. You could dispute how the law got that way, but that’s clearly the law. What will be interesting is to see if they can tie the older brother’s trip to Russia in to this. If so, you’ve clearly got federal jurisdiction. In any event, you’re not going to see the Defense raise a jurisdictional argument here.
Could the feds be holding off on more charges? Sure. They only put enough in their criminal complaint (the charging document) to get the ball rolling. They have only just begun to interview witnesses, go through evidence, and devote the vast resources of the federal government to the prosecution of Tsarvaev. Nothing prevents them from adding in further charges. However, these two charges carry the death penalty, so what’s the point? You can’t execute him twice.
Finally, double jeopardy clause of the Fifth Amendment does not apply to prevent sovereign states from trying a suspect independently of the federal government. Likewise two states could try a suspect for the same act. It certainly does not apply to a different crime – so theoretically, the feds could lose the trial on these two charges (unthinkable, but possible) and then charge him with some other stuff and go through the process again. More likely, if that happened, MA would charge him with three (I think) counts of murder.
“’weapon of mass destruction’ is a very broad category under federal law.”
A broad category, yet strenuously tailored to avoid covering any kind of gun.
You could mow down 100 people with a machine gun and not face a federal WMD charge.