Boston Marathon bombing suspect: How many charges will he face?

Boston Marathon bombing suspect Dzhokhar Tsarnaev is unable to verbally communicate with investigators, but experts say the weight of the evidence against him points to federal terrorism charges.

Boston Marathon bombing suspect Dzhokhar Tsarnaev has yet to provide law enforcement authorities with much information. In large part this is due to medical issues, as he has been drifting in and out of consciousness since his apprehension on Friday evening, according to The Wall Street Journal.

Meanwhile, new circumstantial evidence is filling in a picture of a radicalized older brother, Tamerlan Tsarnaev, who perhaps influenced Dzhokhar and brought the latter into the alleged bomb plot. Tamerlan was killed in the brothers’ getaway attempt on Friday.

In January, Tamerlan interrupted a speaker at a Cambridge mosque who compared the prophet Muhammad and the Rev. Martin Luther King Jr., reports The Boston Globe.

The elder Tsarnaev brother called the speaker at the Islamic Society of Boston mosque a nonbeliever, a “kaffir,” and accused him of contaminating people’s minds.

The congregation did not agree and “shouted him out of the mosque,” Yusufi Vali, a spokesman for the mosque, told the Globe.

Younger brother Dzhokhar may be unable to verbally communicate with investigators even after recovery, as he suffered a wound to the throat area. It’s unclear whether the wound was the result of police gunfire or was self-inflicted as part of a failed suicide attempt.

Authorities indicated that the federal High Value Detainee Interrogation team was standing by to question the surviving Tsarnaev in writing if possible.

Mr. Tsarnaev could be charged at any time. As legal expert Robert Chesney notes on the “Lawfare” blog, law enforcement faces no shortage of possible crimes to use in its indictment. Charges could be state or federal.

“Many if not most will be ordinary violent-crimes charges rather than terrorism-specific ones – though they’ll be no less potent for that,” writes Mr. Chesney.

The most serious charge Tsarnaev might face is federal: use of a weapon of mass destruction in killing. It can carry the death penalty. But Chesney points out that the “Use of Weapons of Mass Destruction” statute carries four conditions, one of which must be met in order for it to apply.

The first two conditions – which generally hold that the alleged attack affects mail delivery or property used in interstate or foreign commerce – may not be apropos. The third, which holds that the perpetrator of the attack travels across state or national boundaries in furtherance of the crime, might fit. So might the fourth, which says that the offense must “affect interstate or foreign commerce” itself.

Another federal terrorism statute that can carry a capital charge and may be applicable is titled “Acts of Terrorism Transcending National Boundaries,” according to Chesney. If authorities believe some element of the plot began overseas they could invoke this law. It’s possible they suspect just that, given that the elder Tsarnaev traveled to Russia for six months in 2011, where he may have met with radical Islamists or received some terrorist training.

Other federal terrorism laws that Dzhokhar Tsarnaev might face charges from include a statute dealing with the bombing of public places and another prohibiting material support for terror acts.

There is some question as to whether Tsarnaev’s trial might be moved outside Massachusetts, on the grounds that any jury pool would be tainted against him. After all, Timothy McVeigh’s trial for the Oklahoma City bombing was moved to Colorado for that reason.

State authorities are likely to file their own charges against the terror suspect meaning that at some point he is quite likely to face a Bay State jury.

On Monday civil libertarians continued to criticize the Obama administration for its decision to delay reading Tsarnaev his Miranda rights so that it can ask initial questions under a public safety exception to the law.

Given the weight of evidence against Tsarnaev this action is unlikely to have any practical effect on his future trial, note experts. Authorities have so much video, so many tapes, and lots of physical evidence, including explosives that hey would not need to use Tsarnaev’s initial statements in any trial, and thus would not need to risk the statements being excluded on legal grounds.