Constitutional Issues Inherent in The Government’s Decision To Charge Dzhokhar Tsarnaev With Use of a Weapon of Mass Destruction

By: Brian Mangan

[The following is the opinion of the author alone, and does not reflect the opinion of The Read Zone or any of its other authors.  The following is simply a look at an interesting issue, was not written by a constitutional scholar, and is not legal advice.  That said, I hope you enjoy.]

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“I find that the proliferation of nuclear, biological, and chemical weapons (“weapons of mass destruction”) and of the means of delivering such weapons, constitutes an unusual and extraordinary threat to the national security…”

President Clinton, Executive Order 12938, November 12, 1994.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Eighth Amendment to the United States Constitution

Several months have already passed since the awful Marathon Bombing that took place in Boston on Patriots Day, killing three people and wounding over a hundred others.  As we all know, the Bombing was perpetrated by two brothers, Tamerlan and Dzhokhar Tsarnaev.  Tamerlan was killed by law enforcement in a dramatic shootout the day after the bombing, but the other, 19-year-old Dzhokhar, was captured and will face justice for his crimes.  Of the thirty charges the younger Tsarnaev faces, one is particularly noteworthy: the government has charged him, in connection with his acts, with the use of a “weapon of mass destruction.”

FN It is noteworthy that they chose to charge him in federal court in the first place, as many had hoped he would be treated as an “enemy combatant” and tried only by military tribunal.

Tsarnaev deserves to be prosecuted to the fullest extent of the law.  However, this blog entry will discuss why the bringing a “weapons of mass destruction” charge against him for his use of, what the government itself has called only a “pressure cooker [with] low explosive powder” is deeply troubling and may be unconstitutional.

Introduction

It goes without saying that the term “weapons of mass destruction” (“WMD”) is an important one, occupying a special place in our language and culture.  For most, or for this author at least, mention of WMDs immediately conjures images of the nuclear bombings of Japan at the conclusion of World War II, of the Iraq War and of our nightmarish War Against Terror.  WMDs are simply classified differently than other weapons, and with degree of seriousness befitting their destructive nature.

Our treatment of WMDs is just different, and was recently the subject of a very smart segment on the Daily Show as it pertained to Syria:

Barack Obama (video quote): “A red line for us is we start seeing a whole bunch of chemical weapons moving around.  That’s a red line for us, and there will be enormous consequences.

Jon Stewart: Big time consequences! … your bombing, your mortar shells, your general machine gunning, your cluster bombs … but you cross that line mister, you are grounded.

Stewart has a point.  For instance in Syria, an uncounted tens of thousands have been killed in their terrible, bloody, civil war – at least 70,000, according to a recent United Nations estimate.  So why the “red line” at the use of chemical weapons, which, by all accounts, have harmed only a tiny fraction of that amount?

FN  Advisers of the President were “surprised” by his use of the phrase “red line,”   wondering if it was too evocative. (New York Times)

But what exactly qualifies as a “weapon of mass destruction”?  Who gets to determine what the definition of a WMD is?  How important is it that we even define a particular weapon as one of “mass destruction”?

This post will be discussing these questions with a particular look at their application to Dzhokhar Tsarnaev.

The Present WMD Statute

Tsarnaev has been indicted on thirty counts, a full seventeen of which could subject him to life imprisonment or capital punishment, should the government pursue it.  One of these charges was the WMD charge, for use of a weapon of mass destruction in violation of Title 18 of the United States Code.

The pertinent definition is found by combining the provisions of two sections, Section 2332a and Section 931 of the Code. 18 U.S.C. §§2332a, 921.  The authority for the charge is found in Section 2332a, which provides that “A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction… [lists factors], and if death results, shall be punished by death or imprisoned for any term of years or for life.”

Section 2332a(c)(2)(B-D) defines WMD’s as weapons which are toxic, radiological, and biological.  This is in line with the usage of the phrase found in the Executive Order by President Clinton in the introduction of this article and, as we will discuss, in line with the vast majority of the definitions of the phrase.

However, Section 2332a(c)(2)(A) includes a catchall provision, stating that the definition of WMD’s also includes “any destructive device as defined in Section 921 of this title.”  Section 921 states the following:

The term “destructive device” means any explosive, incendiary, or poison gas: bomb, grenade, rocket having a propellant charge of more than four ounces, missile having an explosive or incendiary charge of more than one-quarter ounce, mine, or device similar to any of the devices described in the preceding clauses.

 28 U.S.C. 921(a)(4)(A)(i-vi).

This is part of the provision upon which the charges against Tsarnaev are grounded.

This part of the code massively expands the definition of what may be considered a Weapon of Mass Destruction.  Although it limits missiles and rockets by their size, it appears to impose no lower limit on the size, destructiveness, or lethality of things considered to be “mines”, “bombs”, or “grenades.”

As discussed below, the incredible breadth of the definition used by the Justice Department is almost totally unique among definitions of WMDs world-wide.  Shockingly, it is even inconsistent when compared to other sections of the United States Code (such as the Defense Department, also discussed below).

Historical Context and WMD Definitions

While researching how the United States Code came to include such a broad definition of Weapons of Mass Destruction, I found that there is something called the Center for the Study of Weapons of Mass Destruction (“Center”).  The Center, which is part of the National Defense University (ndu.edu), was been designated by the Chairman of the Joint Chiefs of Staff as the focal point for WMD education in the joint professional military education.  Under the leadership of its founding director, Ambassador Robert Joseph, has been at the forefront of research on the impact of WMDs on U.S. national security for the last twenty years.

The Center published a fantastic paper in January 2012 discussing the problems inherent in the phrase WMD and its myriad of definitions and usages in statutes, treaties, and common parlance such as news articles. (source: Defining Weapons of Mass Destruction, by W. Seth Carus)

According to the Center, the phrase “weapons of mass destruction” was first coined in 1946 at the United Nations General Assembly.  At that time, the UN defined WMDs as “atomic explosive weapons, radioactive material weapons, lethal chemical and biological weapons, and any weapons developed in the future which have characteristics comparable in destructive effect to those of the atomic bomb or other weapons mentioned above.” (emphasis added).  The phrase WMD was intended to encompass these very special, very lethal, kinds of weapons.

Since then, however, the phrase has taken on a life of its own.  The author, in his research, found over 50 such different definitions for WMD in international statutes, treaties, and the like.  He also found that that most of them fit into one of six discrete categories:

1)       WMD as nuclear, biological, and chemical weapons;

2)       WMD as chemical, biological, radiological, and nuclear weapons (termed “CBRN” and found in the subsequent definitions);

3)       WMD as CBRN and high explosive weapons (CBRNE);

4)       WMD as CBRN weapons capable of causing mass destruction or mass casualties;

5)       WMD as weapons, including some CBRN weapons but not limited to CBRN, capable of causing mass destruction or mass casualties; and

6)       WMD as weapons of mass effect capable of causing mass destruction or mass casualties or that cause mass disruption.

All six of these major definitional categories include nuclear, biological and chemical weapons, while most of them also incorporate radiological weapons.  For the ones which include weapons beyond CBRN weapons, all of the major definitional categories include reference to the size, scope, or lethality of the weapon, requiring factual circumstances, such as, they cause “mass casualties,” be capable of “mass destruction,” or be “high explosive.”

To those points, of the 50 definitions of WMDs found by the Center, only seven include references to the capabilities of the weapon to actually inflict destruction, while only twelve mention mass casualties. Defining Weapons of Mass Destruction p. 39-40.

FN The criticism of the broad and varied definitions of WMDs is not new.  In a similar vein, on October 15, 2004, the Center for International Development and Conflict Management of the University of Maryland convened a conference on nonstate actors, terrorism, and weapons of mass destruction on October 15, 2004.  According to the paper on the findings of the conference, the phrase “weapons of mass destruction” itself immediately came under fire. “The gist of the criticism was that the term is misleading in two ways: (1) chemical, biological, radiological, and nuclear (CBRN) weapons, to which the term WMD often refers, are not necessarily massively destructive, and (2) non-CBRN weapons can be massively destructive.”

There is one more twist which makes the Center’s study interesting.  The Department of Defense (who commissioned the author of the study to do the research in the first place) had, at the time, defined WMD’s as weapons “capable of a high order of destruction and/or of being used in such a manner as to destroy large numbers of people” and “can be high explosives or nuclear, biological, chemical, and radiological weapons.”

Seeing this, it was the Center itself that pointed out to the Defense Department that their own definition, including the amorphous phrase “high explosives,” would appear to include basically all military grade weapons, therefore making the United States military purveyors of mass destruction. In response to this problem, the Defense Department basically acknowledged the faultiness of their definition and changed it to one in line with the major six above:

“Chemical, biological, radiological, and nuclear weapons capable of a high order      of destruction or causing mass casualties.”

This change in the Defense Department’s definition is a tacit admission of the problem with the loose definition of WMDs: unless it is limited in a reasonable way, almost any weapon other than a firearm could be considered a WMD.  Therefore, despite the Justice Department’s loose definition, the definition of the Defense Department (along with the vast majority of the definitions found by studied by the Center) would likely not encompass the “pressure cooker with low explosive power” used by Dzhokhar Tsarnaev.

FN. It should be noted at this juncture that it is probable that, according to even      the less-encompassing Defense Department’s definition, the United States military is still engaged in everyday use of WMDs.  For instance, the PGU-14 Armor Piercing Incendiary, uses “depleted uranium” to help pierce armor.

            (link)

Ultimately, the Center concludes, and reasonable minds would probably agree, that the inclusion of high explosive weapons as forms of WMD “turns the original meaning of WMD on its head.”  Defining Weapons of Mass Destruction p. 50.  It also states that the Justice Department’s definition (which is applied now to Tsarnaev), which was only implemented in 1994, causes confusion and leads to uncertainty, both in domestic criminal prosecutions and in international diplomacy.

Analysis: WMD’s Inclusion of “Destructive Devices” Runs Afoul of the Constitution

In light of the “confusion,” “uncertainty” and almost universal critique of the phrase, why does the Justice Department not only use the phrase, but use a definition which is so broad as to apply to nearly every single “explosive… bomb” in existence?  What are our policy goals, and how can that broad definition be justified in light of the fact that it conflicts with the definitions used by the United Nations, the Defense Department, and our own Executive Branch of government?

The answer, if there is one, is clear: the incredibly broad definition found under Section 921 provides the Justice Department with an extremely useful, flexible, and lethal tool for the government to use to prosecute important and high profile defendants.  Just as importantly, and perhaps even more importantly, it provides the government with a quick and easy route to the death penalty.

FN For instance, the interplay between Section 921 (18 U.S.C. §921) and Section 2332a (18 U.S.C. §2332a) has allowed the federal government to prosecute cases against Timothy McVeigh (Oklahoma City), and Richard Reid (the shoe bomber) among others.  On that note, I was surprised to learn that the Federal Government has only executed three individuals in the last fifty years (one was McVeigh). (Bureau of Prisons)

I respect that we, as a people, are free to designate some crimes are objectively “worse” than others, and choose to punish them accordingly.  The Supreme Court also agrees, stopping short of eliminating the death penalty by putting rules in place in an attempt to make sure that it is reserved for “the worst of the worst.”  In one such case, the Supreme Court said:

“Capital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution.” Roper v. Simmons, 543 U.S. 551 (2005)(internal quotes omitted).

I am not arguing the validity of capital punishment as a general punishment – at least not here – but it may very well be that the broadness of the WMD definition and its application to Tsarnaev runs afoul of the Supreme Court’s jurisprudence.

It of course makes sense that we would want to be able to have a clear, legal avenue toward the prosecution of any criminal or terrorist that would use a weapon of mass destruction.  However Tsarnaev’s weapon of mass destruction was nothing more than a pressure cooker full of BBs and nails – something that any ordinary criminal could improvise in their kitchen.  The Boston Bombings, although indisputably a terrible incident, resulted in the loss of only three lives (prior to the brothers’ subsequent attempts at escape).

As the New Yorker put it, “What If the Tsarnaevs Had Been the Boston Shooters?”

Well, for one thing, the brothers would probably have killed a lot more than three     people at the marathon. AR-15s can fire up to forty-five rounds a minute, and at close range they can tear apart a human body. If the Tsarnaevs had started firing    near the finish line, they might easily have killed dozens of spectators and       runners before fleeing or being shot by the police.

Given the relative ability of each weapon to inflict death, why would a machine gun be less of a WMD than these pressure cookers?  And when you can call a pressure cooker a WMD – hasn’t the phrase WMD lost its meaning altogether?  Which action was more deserving of the death penalty: the Boston Bombing, which killed three, or the Sandy Hook shooting, which killed twenty-six?

Section 921 does not apply only as part of Section 2332(a) – it is a statute which stands on its own.  As such, there have been countless prosecutions under Section 921.  Section 921 has been applied to defendants for their use of a wide variety of devices, including “black powder and blasting caps,” “napalm firebombs,” “Molotov cocktails,” and flare guns which contained “anti-personnel ammunition.”  Section 921 has even been applied to a pipe bomb which was inoperable, as well as to devices consisted of nothing more than a bunch of non-working parts.   See United States v. Langan, 263 F.3d 613 (6th Cir 2001)(upholding conviction even though the device was “intended… to be inoperable.”)  Insofar as Section 921 exists as its own code, there do not appear to be any problems.

However, when Section 921 is used to prosecute somebody under the terrorism statute of Section 2332(a), a clear problem arises.  Including all of the above “destructive devices” — some of which are not destructive at all — in the definition of “weapon of mass destruction,” clearly undermines the purpose of the statute and leads to Constitutional issues.

The Bill of Rights requires that punishment be proportional to the crime.  As the Supreme Court recently reaffirmed:

The Eighth Amendment’s prohibition of cruel and unusual punishment        guarantees individuals the right not to be subjected to excessive sanctions. That       right flows from the basic precept of justice that punishment for crime should be   graduated and proportioned to both the offender and the offense.

Miller v. Alabama, 132 S. Ct. 2455 (2012).

The Eighth Amendment has been used to prohibit the imposition of the capital punishment for non-homicide crimes, to prohibit mandatory life-without-parole sentences for juveniles, capital punishment for juveniles and the mentally retarded, as well as the unnecessary and wanton infliction of pain in the methods in which capital punishment is carried out.  See e.g. Campbell v. Wood, 511 U.S. 1119 (1994).  It has also been used to underpin the theory the capital punishment must be reserved for the “worst of the worst.”

When the phrase WMD was first coined, it stood to mean nuclear, biological, or chemical weapons, capable of great harm; when President Clinton issued the first ever Executive Order on WMDs, it stood for the same (the Executive Order has been renewed by every President since); and the near universal application of the phrase “weapons of mass destruction” requires that the weapons in question be nuclear, biological, or radiological or, at the very least, be capable of mass casualties or mass destruction.

Although subjecting Tsarnaev to the death penalty via Section 2332 might comport with what most of us to believe is fair, the statutes as presently written make it possible for any person who uses a device which qualifies under Section 921 (which as discussed above, includes just about anything, including devices that do not work) to be prosecuted as a terrorist for the use of a weapon of mass destruction and susceptible to capital punishment.  Such an application of the law may very well be unconstitutional.

A quote adorns the facade of the New York State Supreme Court building here in Manhattan.  It is a quote from a letter written by George Washington to the United States Attorney General in 1789, and I think of it often:

“The true administration of justice is the firmest pillar of good government.”

Tsarnaev’s acts were truly reprehensible, and I support that he be given the worst punishment supportable under the law.  But I agree with the conclusion of the Center for the Study of Weapons of Mass Destruction that the Justice Department’s definition of WMD is fatally flawed and that Congress should review it. 

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Brian Mangan is an attorney in New York City.   It should go without saying that he’s not a professional constitutional scholar or expert in these fields.  

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New York County Supreme Court Building Credit: wikipedia