Death Penalty Sought for Boston Marathon Bomber Tsarnaev

Yesterday afternoon, prosecutors in the Boston Marathon bombing case announced that Attorney General Eric Holder has authorized them to seek the death penalty against Dzhokhar Tsarnaev, one of two suspects believed to have carried out the bombing. Tsarnaev’s older brother Tamerlan and second suspect was killed by police during a fire fight shortly after the bombing. Continue reading

Is the FBI more dangerous to civil liberties when it REFUSES to record?

In an opinion piece in the Boston Globe, lawyer Harvey Silverglate claims that the FBI follows a policy of not recording interviews with suspects and witnesses in order to be able to put words in their mouth. He points specifically to the case of Robel Phillipos, who was recently arrested and charged with making materially false statements during the course of the investigation of Dzhokhar Tsarnaev, the suspect in the Boston bombing.

Mr. Silverglate has a point. Without electronic recording, the FBI agent can sit in the interview room, taking whatever notes he pleases, and then later attribute those statements to the interviewee. The interviewee, in disputing the statements, risks prosecution for the same crime now being alleged against Robel Phillipos. Mr. Silverglate apparently thinks that creating this opportunity is the reason for the FBI’s policy.

But there are a couple of problems with this theory. First, to do this would be a crime–the same crime that Robel Phillipos is charge with in fact, along with a couple of others. Second, the FBI do not want to soil their own evidence. Even apart from the implications for admissibility or weight, if it becomes known that an agent is falsifying witness statements, false witness statements only harm the investigation by adding incorrect information into an already complex picture.

Last, but not least, Mr Silverglate doesn’t address the one feature that may help to level the playing field between the FBI and the witness: the jury. A witness statement is not at all like a piece of physical evidence. The jury does not simply note that it exists (theoretically, the jury doesn’t even stop here for physical evidence). Instead, when confronted with the claimed falsification of the statement, the jury will decide which of the two parties they believe is telling the truth. Ignoring this aspect severely undercuts Mr. Silverglate’s argument.

However, in the end, his point still stands. Why, with the ubiquity of hand-held recording devices (like the on in your pocket or purse that rings from time to time), doesn’t the FBI record all interviews as a matter of course. If for some reason a recorder cannot be found, they can always revert back to their paper-only method, and explain to the jury why they had to do so. But it would effectively remove the possibility of interviewees claiming that they were misquoted or that their statements were falsified. And in this respect Mr. Silverglate is correct. This should be a non-issue.

Paul W. Taylor, Senior Fellow
Center for Policy and Research

Some problems with the charges filed against Boston Marathon bombing suspect

Well, it seems that Tsarnaev has now been read his rights.

The FBI filed charges against the surviving suspect in the Boston Marathon bombing, Dzhokhar Tsarnaev, alleging “using and conspiring to use a weapon of mass destruction.” But Tim Noah has pointed out an interesting conundrum in his article on FP.com: How do relatively small improvised explosive devices (IEDs) amount to weapons of mass destruction?

18 USC § 2332a defines “weapon of mass destruction” as:

“(A) any destructive device as defined in section 921 of this title;

(B) any weapon that is designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals, or their precursors;

(C) any weapon involving a biological agent, toxin, or vector (as those terms are defined in section 178 of this title); or

(D) any weapon that is designed to release radiation or radioactivity at a level dangerous to human life.”

Since the pressure-cooker bombs made by the brothers did not (so far as we know) use  any toxins, poisons, biological agents, or radioactive elements, then the definition of WMD in operation in this case must be that of a “destructive device” which then allows in “any explosive bomb.” Firecrackers, too, apparently (Section 921 defines “Attorney General,” but not “bomb”).

But even setting aside the idiocy of language of the statute, it’s ridiculous to call the low-powered bombs  in Boston “weapons of mass destruction,” even if they did wound scores of innocent civilians. After all, as Tim Noah points out,

“If any old bomb can be called a WMD, then Saddam most definitely had WMDs before the United States invaded Iraq 10 years ago. And if an IED is a WMD, then Iraq actually ended up with more WMDs after the U.S. invasion than before (and isn’t entirely rid of them yet).”

For the sake of clarity, I do not advocate “going easy” on Tsarnaev. He should be prosecuted to the full extent of the law, which is what the federal government appears to be doing. But neither do I support equating the employment of ordinary bombs and IEDs with true weapons of mass destruction.

Paul W. Taylor, Senior Fellow
Center for Policy and Research