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Case Against Dzhokhar Tsarnaev Raises Legal Quandaries

April 22, 2013 at 12:00 AM EDT
Boston bombing suspect Dzhokhar Tsarnaev has been formally charged with using weapons of mass destruction, and if found guilty, could face the death penalty. Gwen Ifill talks with former Justice Department official David Rivkin and Laura Murphy of the ACLU to explore legal questions raised by trying Tsarnaev in a federal court.

GWEN IFILL: And we pick up on some of the legal questions being asked about the criminal case against Dzhokhar Tsarnaev. If Tsarnaev is found guilty as charged of using a weapon of mass destruction, he could face the death penalty. But what else does he, and should he face?

For that, we turn to, David Rivkin, who served in the Justice Department in the Reagan and Bush administrations, and Laura Murphy, director of the Washington legislative office for the American Civil Liberties Union.

David Rivkin, start by explaining to us what this means, using a weapon of mass destruction. Is it a term of legal art?

DAVID RIVKIN, Former Associate White House Counsel: It is a term of art, Gwen. And good to be with you.

It is obviously a manifestation of the seriousness of the attack. It is a charge that carries a death penalty. And I for one, given the wealth of physical evidence and evidence that the prosecution will be able to bring to bear, would be quite comfortable predicting that he would be convicted and sentenced appropriately.

GWEN IFILL: Laura Murphy, that term weapon of mass destruction, is that a relatively new kind of charge?

LAURA MURPHY, American Civil Liberties Union: Yes, that’s in statute. Congress created that term. And it’s a very broad term. And it’s been broadly interpreted.

GWEN IFILL: Is part of the broad interpretation what the penalty would be?

LAURA MURPHY: I don’t understand your question.

GWEN IFILL: As David Rivkin just said, part of the reason why that kind of charge is brought is because it makes you liable for the death penalty.

LAURA MURPHY: Well, we don’t know whether the federal prosecutors are going to charge this suspect with the death penalty. So it is a prosecution that can result in a death sentence.

GWEN IFILL: Let me ask you and then David Rivkin this question. Were there other options besides this particular charge for charging this young man?

LAURA MURPHY: Oh, there are many options.

But we don’t know that the charges that are brought have been completed. This individual could be prosecuted in state court. This individual could face further federal charges. So this, by no means, means the end of the charging process.

GWEN IFILL: David Rivkin, what else would you imagine that he could be charged with, based on what we know?

DAVID RIVKIN: If I might, Gwen, it’s not just a question of what he will be charged with. There are other charges. I agree with my colleague about the possibility of state prosecutions.

I think what’s important, this administration has made a serious mistake in not considering, completely taking off the table the possibility of classifying him as a potential enemy combatant and subjecting him to the interrogation process that would have frankly yielded a lot more in terms of intelligence than the standard criminal justice-type interrogation process.

And it has nothing to do with Miranda, on which everybody has been focusing. It is simply the case that an interrogation process that would last for a period of weeks and maybe months and enables the interrogation team to develop without any interruptions a full intelligence take is not something you can do in the criminal justice system, because once he’s charged, he’s entitled to a lawyer. And his lawyer, even if he doesn’t tell him not to cooperate, you just wouldn’t be able to structure the interrogation in the same process. That’s a loss. That’s very unfortunate.

GWEN IFILL: Laura Murphy, in fact, he has now been assigned a lawyer. And this enemy combatant option was pretty vigorously taken off the table today by Jay Carney at the White House. What did you think about that?

LAURA MURPHY: We thought it was an excellent idea to prosecute this individual in the criminal justice system in our federal courts.


LAURA MURPHY: Because the enemy combatant status doesn’t allow for due process, doesn’t allow for right to counsel, doesn’t have the same presumption of innocence.

And we hold our system out to the world as being the model for justice. That is a very different, secretive process. And, in fact, John Brennan, who is now the director of the CIA, when he was national security adviser, argued against holding people as enemy combatants and in military detention for the purposes of interrogation, because he cited at least three major terrorism cases where the individuals were tried under our federal criminal court system, and they cooperated even after having counsel.

And this system, this criminal justice system of our federal government, has prosecuted over 400 terrorism-related cases. You have the blind sheik in custody. You have Moussaoui in custody. You are Terry Nichols, who was part of the Oklahoma City bombing. You have Eric Rudolph, who was part of the Atlanta terrorism bombings related to the Olympics. So there’s no problem in our criminal justice prosecuting alleged acts of terrorism.

GWEN IFILL: What about that, David Rivkin?

DAVID RIVKIN: Let me just jump in.

This is a straw man. Nobody is suggesting that Dzhokhar cannot be prosecuted in the criminal justice system. But prosecuting him is just part of the equation. The real question for us is this: This is not just an act of terror. This is an act of war, at least potentially an act of war, on the theory that his brother was inducted in an al-Qaida affiliated entity and then he came back — during his stay in the Caucasus — he came back to the United States, he inducted his brother.

GWEN IFILL: So far, we know that all to be — but so far, we know that all to be a theory, right, not part of the charge?

DAVID RIVKIN: Of course. But that’s the whole point. But the whole point of enemy combatants is that you hold people and you build information in part based upon interrogation results.

By the way, apropos of a point made by my colleague, there’s nothing wrong with the military justice system. And if she feels otherwise, she should take issue with the Supreme Court. The Supreme Court in a number of key decisions both prior to 9/11, but also after 9/11 in a case called Hamdi, very much affirmed the continuing viability and constitutionality of the laws of war paradigms.

Let me just say briefly, I’m not suggesting, by the way — forgive me, just one second.

I’m not suggesting he would have been prosecuted in the military commission. The existing law doesn’t allow for it. It specifically is off the table. But he could have been interrogated and held for a number of months as an enemy combatant and then, just like happened with Padilla, just like happened Hamdi, Mr. Hamdi, he could have been transferred to the criminal justice system to be prosecuted.

GWEN IFILL: Excuse me.

But since we now know that is not going to happen and that the administration has made very clear what their approach will be, I would like to focus a little bit on what the challenge is that now ahead for the prosecutors and for the defense in a case like that, Laura Murphy.

LAURA MURPHY: Well, first of all, they have to get their facts together. We just don’t know what the facts are in this case.

And we cannot say that this individual agreed with his older brother’s ideological beliefs. We don’t know that. And so this person has counsel. Counsel is going to meet with this person to make sure that the charges are fair and build a case based on the facts. We can’t predict how this case is going to go.

We know that the federal government has to conform with rules of evidence. And we think that they are going about this prosecution in the manner that really comports with our American values and our constitutional rights.

GWEN IFILL: David Rivkin.

DAVID RIVKIN: I’m surprised, actually, to hear you say that because, quite frankly, in an effort to avoid dealing with the option that I mentioned, by not Mirandizing him, they have actually created some problems for themselves.

LAURA MURPHY: He was Mirandized. He was Mirandized.

GWEN IFILL: Actually, as of today, when he was charged, he was.


GWEN IFILL: But there was a delay, you’re right.

DAVID RIVKIN: There was a delay. And I agree with Professor Dershowitz, who points out the danger of this kind of a blending of the two paradigms.

Because he wasn’t Mirandized initially, it may be difficult for the prosecution — lots of physical evidence, as I said. But as far as his state of mind, as far as what made him do this — and I agree with Laura — there might be some difficulties, which again underscores the proposition that you pay a price when you take some options off the table. You make other options more difficult for you.

GWEN IFILL: Even though he wasn’t Mirandized right away and apparently was in communication with the investigators, are you OK with that?

LAURA MURPHY: No, we’re not OK because we don’t know the facts. We don’t know what he was compelled to answer. We don’t know whether he knew what was going on, whether he was of sound enough mind.

We think the public safety exception should be very, very limited. We don’t know whether they abused the public safety exception. So, we’re not prepared to say everything is OK just because he’s been Mirandized. But we are relieved that he’s being tried in federal court and that he was Mirandized.

GWEN IFILL: Laura Murphy of the American Civil Liberties Union …

DAVID RIVKIN: Actually …

GWEN IFILL: … and David Rivkin, Baker Hostetler, thank you both so much.

LAURA MURPHY: Thank you.

DAVID RIVKIN: Thank you.