The Justice Department charged the accused Boston bomber Dzhokhar Tsarnaev in federal court Monday, making him a criminal defendant and not an enemy combatant. Among the charges contained in the Justice Department’s affidavit: use of a weapon of mass destruction.
Did the Boston bombers really use WMD? Legally, yes. That might sound surprising — but don’t be alarmed. The Tsarnaev brothers didn’t release anthrax in the Boston subway or tuck a dirty bomb outside Fenway Park. It turns out that federal law defines “weapon of mass destruction” in extremely broad terms. The relevant statutes define almost any significant explosive device as a WMD. That specifically includes bombs, grenades, mines, and small rockets and missiles. The pressure-cooker bombs planted at the Boston marathon and the explosives hurled at police on Thursday night would almost certainly qualify.
Needless to say, the law also covers weapons more commonly considered to be WMD, including “any weapon involving a biological agent, toxin, or vector” and any weapon “designed to release radiation or radioactivity at a level dangerous to human life.” (More here on what qualifies as an agent, toxin or vector.) But there is no indication that the Tsarnaevs had access to such materials.
As it happens, the feds applied this narrow WMD definition just last month, when they charged a former U.S. soldier with fighting alongside a terrorist group aiding the Syrian rebellion. A federal affidavit accused Eric Harroun of conspiring to use a weapon of mass destruction for firing rocket-propelled grenades in the ranks of Syria’s radical al-Nusra Front. That stirred up a long-running academic and policy debate about the term’s usage.
Another twist here is that killing someone with a weapon of mass destruction is a capital offense only under certain circumstances, though Bobby Chesney of the blog Lawfare argues they would likely apply in Boston. Chesney also suggests two other potential capital charges against Dzhokhar Tsarnaev. One would be an act of terrorism “transcending national boundaries,” a charge that could apply if prosecutors establish a connection between the bombings and the trip of his brother Tamerlan to Russia last year. Another would be bombing a public place — a capital crime if done “to compel another state or the United States to do or abstain from doing any act.” Even if prosecutors can’t establish that intent, the law also brings the death penalty if such a bombing kills a foreign national, as this one did.
The federal government has executed just three people since 2001. Among them was Oklahoma City bomber Timothy McVeigh, who was also charged with use of a weapon of mass destruction and who was put to death by lethal injection on June 11, 2001, at a federal prison in Terre Haute, Ind.
Until last week, McVeigh was probably America’s most notorious domestic terrorist. Now Dzhokhar Tsarnaev may hold that title — and may now be destined for a similar fate.
This item has been updated to reflect breaking news.