THE BLOG

Why Wasn't Dzhokhar Tsarnaev Indicted as a Terrorist?

04/22/2013 05:35 pm ET | Updated Jun 22, 2013
AP

The Obama administration's decision not to indict Dzhokhar Tsarnaev as a terrorist calls for an explanation. Nearly everyone expected him to be charged with terrorism under the Federal Terrorism Statute, but instead he was charged with killing someone by using a weapon of mass destruction. The question is why.

Perhaps the reason is as simple as the absence of any evidence, at this time, of what the actual motive was. The Federal Terrorism statute requires the government to prove an intent to terrorize, whereas the mass destruction statute requires no such motive or intention. An ordinary citizen could be indicted under that statute if he used a homemade bomb to kill his mother in law or his business rival.

There may, however, be a different reason for why the government selected the mass destruction statute. A trial under that statute may be far less ideological or political. All the government has to prove are facts that seem indisputable, based on the affidavit submitted in this case. Neither Jihad nor Islamic extremism will be placed on trial. That may have been a deliberate decision based on foreign policy considerations. Or it may have been a more legalistic decision based on the current absence of evidence regarding intent and purpose. It is of course possible that we may see new indictments based on additional evidence. That may depend on whether the government elicited any information from Dzhokhar Tsarnaev when they interrogated him in his hospital room. It may also depend on whether field investigations turn out any connections between the older brother and terrorist groups either abroad or at home.

The decision to charge him under the mass destruction statute rather than the terrorist statute may also explain why prosecutors were willing to have him interrogated without his Miranda warnings. Statements made during such an interrogation may have been more necessary under a terrorist statute than under the mass destruction statute. The government may have calculated that they are risking little by not Mirandizing him in an effort to obtain real time intelligence information.

In the end, it is unlikely that there will be a traditional criminal trial in the federal court. Dzhokhar Tsarnaev will either try to make a deal to exchange information for his life, or he may proudly proclaim his guilt and demand the death penalty in order to join his brother in martyrdom. Indictment under the mass destruction statute will make such an ideological defense harder to mount.

All of this remains somewhat speculative at this early stage, but it is still worth asking why the government chose to charge him under the mass destruction statute rather than under the more obvious terrorist statute. I am confident we will learn the answer soon.