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BREAKING: Reports of multiple explosions at Boston Marathon leaving dozens wounded. watch

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    I've moved a substantial number of posts from this thread to a new thread to be found here.

    Please continue to use this thread for discussion on the subject of the Boston bombings itself, and the new thread I've linked to to continue the discussion of terrorism in general, the ethics of civilian casualties in war on terrorism, or similar.
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    (Original post by CEKTOP)
    Let's just wait until they charge him, it will surely determine who's right.
    (Original post by AlexandrTheGreat)
    I thought you said it was guaranteed. Not having any doubts, are you?
    Seems that Mr Tsarnaev could indeed face federal charges.

    http://www.bbc.co.uk/news/world-us-canada-22250956
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    (Original post by InnerTemple)
    Seems that Mr Tsarnaev could indeed face federal charges.

    http://www.bbc.co.uk/news/world-us-canada-22250956
    I shall watch with interest and see how it transpires. Even on a very broad construction of title 18 USC 2332 charges, I really don't see how you can make it stick unless you stretch the meaning of the English language until it's meaningless.

    Again, a lot of this federal/state stuff seems to revolve around what people would like to happen (see this passage in article)

    Most experts believe Mr Tsarnaev will be charged under federal law because the federal government has more legal and investigative resources, and Massachusetts does not have the death penalty.
    Rather than what is legal and right. I have no doubt that if they opt for federal charges, they will be tied up in appeals for years, and risk actually losing them.

    Edit: It seems he's just been charged with title 18 USC 2332b (using a weapon of mass destruction). The basis for invoking federal jurisdiction, I'm guessing they're going to claim (B), though it looks extremely weak to me. It looks like an abuse of the law because they really want this guy to face the death penalty.

    (b)Jurisdictional Bases.—(1) Circumstances.— The circumstances referred to in subsection (a) are—(A) the mail or any facility of interstate or foreign commerce is used in furtherance of the offense;
    (B) the offense obstructs, delays, or affects interstate or foreign commerce, or would have so obstructed, delayed, or affected interstate or foreign commerce if the offense had been consummated;


    Edit 2
    : A friend just emailed me the complaint. It is indeed title 18 USC 2332b(b)(B), that is, that the bomb interfered with interstate and foreign commerce. Interesting, I'm going to the caselaw to take a look, because I think that this case is going to fall over. I suspect that it's very marginal in terms of whether it exceeds the limits laid down in United States v Lopez
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    (Original post by AlexandrTheGreat)
    I shall watch with interest and see how it transpires. Even on a very broad construction of title 18 USC 2332 charges, I really don't see how you can make it stick unless you stretch the meaning of the English language until it's meaningless.

    Again, a lot of this federal/state stuff seems to revolve around what people would like to happen (see this passage in article)



    Rather than what is legal and right. I have no doubt that if they opt for federal charges, they will be tied up in appeals for years, and risk actually losing them.

    Edit: It seems he's just been charged with title 18 USC 2332b (using a weapon of mass destruction). The basis for invoking federal jurisdiction, I'm guessing they're going to claim (B), though it looks extremely weak to me. It looks like an abuse of the law because they really want this guy to face the death penalty.

    (b)Jurisdictional Bases.—(1) Circumstances.— The circumstances referred to in subsection (a) are—(A) the mail or any facility of interstate or foreign commerce is used in furtherance of the offense;
    (B) the offense obstructs, delays, or affects interstate or foreign commerce, or would have so obstructed, delayed, or affected interstate or foreign commerce if the offense had been consummated;


    Edit 2
    : A friend just emailed me the indictment. It is indeed title 18 USC 2332b(b)(B), that is, that the bomb interfered with interstate and foreign commerce. Interesting, I'm going to the caselaw to take a look, because I think that this case is going to fall over. I suspect that it's very marginal in terms of whether it exceeds the limits laid down in United States v Lopez
    My knowledge of US law is quite narrow. However from my reading, I was led to believe that the weapon of mass destruction thing was 18 USC 2332a - some commentators have suggested that the State could use sub section C to meet the jurisdictional challenges or, failing that, subsection D which is akin to Subsection B of 2332b.
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    (Original post by InnerTemple)
    My knowledge of US law is quite narrow. However from my reading, I was led to believe that the weapon of mass destruction thing was 18 USC 2332a - some commentators have suggested that the State could use sub section C to meet the jurisdictional challenges or, failing that, subsection D which is akin to Subsection B of 2332b.
    Oops, a recurring typo. 18 USC 2332a indeed.

    I've read the complaint, they have indeed charged on the basis that it interfered with interstate and foreign commerce. The first few paragraphs of the complaint are taken up trying to demonstrate that.

    My view is that this is a stretch, especially in light of more recent (well, the last 20 years) appellate and supreme court jurisprudence that has been rolling back the limits of what can be construed as affecting interstate commerce.

    In addition, C requires that they travelled interstate or overseas in furtherance of the offence, and we haven't seen any evidence of that.

    The problem for the US Attorney's Office is that they will have to prove its effect on interestate commerce, and more recent authority on the subject isn't as indulgent as it once was in construing almost anything tangentially related to commerce as being related to interstate commerce. I suspect a large amount of the committal and trial will be consumed dealing with the jurisdictional issue (not to mention appeals).

    None of this would be a problem if he was charged under state law. Of course, then he wouldn't face the death penalty and political expediency demands that he must.
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    (Original post by AlexandrTheGreat)
    Oops, a recurring typo. 18 USC 2332a indeed.

    I've read the complaint, they have indeed charged on the basis that it interfered with interstate and foreign commerce.
    Brilliant - just had a look at the indictment also.
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    (Original post by InnerTemple)
    Brilliant - just had a look at the indictment also.
    Cool, it's quite interesting insofar as it fills in a lot of info we didn't know about the order of events.

    Just in relation to the charge, it seems absurd to me that a criminal trial of this nature will end up tying itself in knots trying to prove an effect on interstate commerce simply because that's the only way federal jurisdiction (and thus the death penalty) can get a foot in the door.
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    Of all his option the death penalty will probably be the best for him. Solitary confinement for his own protection, some variation of gen pop. where he won't last 10 mins, or was spirited away to Cuba for a undetermined period of hell. All pretty nasty options. At least if he gets the death penalty he'll get a stupidly long trial, and then get sometime sitting on death row while he exhausts all legal options, plus a tasty meal.
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    (Original post by AlexandrTheGreat)
    Cool, it's quite interesting insofar as it fills in a lot of info we didn't know about the order of events.

    Just in relation to the charge, it seems absurd to me that a criminal trial of this nature will end up tying itself in knots trying to prove an effect on interstate commerce simply because that's the only way federal jurisdiction (and thus the death penalty) can get a foot in the door.
    I don't know enough about it really. I have the resources, but the last time I researched US law was for my dissertation and just the thought of it brings me close to tears. If I have some downtime at work tomorrow, I may take a look.

    What do you make of the other count - 18 USC 844i, which also seems to carry the death penalty?
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    Federal it is.
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    (Original post by InnerTemple)
    I don't know enough about it really. I have the resources, but the last time I researched US law was for my dissertation and just the thought of it brings me close to tears. If I have some downtime at work tomorrow, I may take a look.

    What do you make of the other count - 18 USC 844i, which also seems to carry the death penalty?
    844i it turns on damage to property that is involved in interstate commerce; the limitation in the caselaw is that it has to be directly, rather than tangentially, involved in interstate commerce (for example, a truck that carries cigarettes from one state to another, rather than a truck that delivers milk to a company that does interstate business).

    For a really interesting quickie rundown on the commerce clause as it relates to criminal cases (though in that case it was striking down a law purporting to regulate handguns in schools based on the commerce clause, rather than the statute being sound and the charge not), United States v Lopez is very interesting and a good read (and Rehnquist's judgement is not overly long)
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    (Original post by AlexandrTheGreat)
    844i it turns on damage to property that is involved in interstate commerce; the limitation in the caselaw is that it has to be directly, rather than tangentially, involved in interstate commerce (for example, a truck that carries cigarettes from one state to another, rather than a truck that delivers milk to a company that does interstate business).

    For a really interesting quickie rundown on the commerce clause as it relates to criminal cases (though in that case it was striking down a law purporting to regulate handguns in schools based on the commerce clause, rather than the statute being sound and the charge not), United States v Lopez is very interesting and a good read (and Rehnquist's judgement is not overly long)
    Thanks for the pointer - I'll take a look.
 
 
 
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