U.S. Magistrate Judge Marrianne Bowler, on Monday, April 22, 2013, held a court hearing in the hospital room of accused Boston Marathon bomber Dzhokhar Tsarnaev to inform him that he has been charged with the federal crime of using a weapon of mass destruction, punishable by fine, imprisonment or death.
Tsarnaev, a 19-year-old U.S. citizen from Massachusetts with origins in Russia and Kyrgyzstan, will be represented by federal public defenders.
The devices used in the bombings, pressure cookers filled with black powder and improvised shrapnel, with a detonator device, are not actually weapons of mass destruction (WMD). WMD are nuclear, chemical or biological weapons, usually of a sizable magnitude.
However, the phrase is being used as a term of art by the relevant federal statutes. The charge, essentially an anti-terrorism charge, is being brought under 18 USC §2332a(a), which references another statute for additional definitions of terms, 18 USC §921, which includes essentially any bomb or explosive device within the definition.
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The first statute includes, within the definition a catch-all “any destructive device as defined in section 921 of this title,” with §921, in turn, providing:
(4) The term ‘destructive device’ means—
(A) any explosive …
* * *
(vi) device similar to any of the devices described in the preceding clauses;
The criminal complaint apparently was first drafted on an earlier date, then unsealed and announced on April 22, after the suspect was captured following a bomb-throwing shoot-out with police.
It contains detailed information about multiple video and photographs allegedly showing the suspect arriving with his backpack, lowering the backpack to the ground and leaving without the backpack, as well as the explosion then occurring in the same area, with no other explanation for its source, other than the backpack.
News reports relate that the suspect actually was awake and aware in his hospital bed, to have the complaint and its charges read to him. In addition to reportedly nodding to acknowledge he understood the charges, the accused reportedly spoke one word, answering “no” when asked if he could afford to hire his own legal counsel.
The accused also faces a charge of Malicious Destruction of Property Resulting in Death, under 18 U.S.C. §844(i).
Tsarnaev and his older brother, alleged co-conspirator Tamerlan Tsarnaev, are believed to have set off two comparatively small explosive devices near the finish line of the Boston Marathon. Detonating among a tight crowd, the explosions killed three and wounded or maimed roughly 200 people.
Additional charges could presumably be brought if need be.
Later in the week, following the publicizing of surveillance images of the two suspects, the suspected were believed to have conspired to plan to plant more bombs; murdered an MIT campus policeman; used multiple vehicles to get away, including a stolen car; briefly engaged in the kidnapping of the car’s owner; fired shots at police and hurled bombs at police. And when the older suspect went down, the younger suspect reportedly ran him over with a car while attempting a getaway. It is unclear whether that was accidental, or another intentional killing, perhaps to carry out a promise that neither be captured alive.
Later the younger suspect would be found hiding under a tarp in parked boat in someone’s backyard. When apprehended, it appeared he had tried to shoot himself, but accidentally delivered the shot in such a way that the bullet exited his neck without being fatal.
The suspect was reportedly “read his rights” in his hospital room, possibly without having been interrogated yet.
The federal government’s plans are to try to suspect in civilian court. As a U.S. citizen, he is not eligible for trial before a military commission. However, a number of foreign nationals deemed enemy combatants have face indefinite detention, such as at Guantanamo Bay, without themselves facing a military commission.
So efforts to divert questions about the suspect being an enemy combatant by saying he cannot be tried before the existing military commissions managed to side-step whether he could be held as an enemy combatant, without any kind of trial.
In the past, debate over how to treat terrorist suspects revolved, in part around the status of foreign nationals known to be affiliated with a non-state actor, such as a terrorist group, considering itself to be at war with the United States in an ongoing way.
One area of concern is the desire to subject actual terrorists to ongoing intelligence interrogation, to gain information to undermine the ongoing existence or viability of their terrorist group, including to prevent or forestall future attacks.
The point has been made that, while the goal of law is to foster a safer, more just society, the legal system often functions, in a particular case, in a retroactive manner engaging in fact-finding and applying laws, and assigning guilt, for actions that already have occurred.
Another area concern has been whether placing terrorists into a civilian justice system would make it easier for them to find loopholes, to get back out into the world, to fight again. On the other hand, that concern implies questions about the ability to prove guilt in the first place, which in turn raises questions about the likelihood that a given accused actually is guilty. At the same time, in a conventional war, enemy prisoners of war are, in fact, removed from the battle, at least, even if not considered criminals or brought to trial for war crimes.
In the case of the Boston bombings, it does not appear that there should be much difficulty presenting adequate evidence. And there could be a plenitude of potential additional charges.
However, there is the nagging question of whether there is a broader scope to the matter, including whether the accused bombers receiving training or other assistance from additional parties, whether they are part of a larger group with broader goals and aspirations, and whether they have confederates still at large.