Boston suspect Dzhokhar Tsarnaev charged with using WMD

Michael Doyle,Lesley Clark

The Justice Department on Monday publicly charged Boston Marathon bombing suspect Dzhokhar Tsarnaev with using a weapon of mass destruction, a charge that could bring the death penalty.

In unsealed court filings that shed dramatic new light on what investigators think happened before, during and after the lethal explosions, prosecutors charged Tsarnaev with one count of using and conspiring to use a WMD resulting in death. The 19-year-old ethnic Chechen, a naturalized U.S. citizen, also was charged with one count of malicious destruction of property by means of an explosive device resulting in death.

If convicted on either charge, Tsarnaev faces the death penalty or life in prison. He also faces the possibility of state criminal charges, as well, in connection with the bombings, which killed three people and wounded more than 200.

“Although our investigation is ongoing, today’s charges bring a successful end to a tragic week for the city of Boston, and our country,” Attorney General Eric Holder said in a statement.

In a solemn ceremony Monday, the FBI turned Boylston Street – which has been considered a crime scene – back to the city. A bagpiper played as the flag that flew over the finish line during the race was presented to Mayor Tom Menino.

The street won’t be open to the public until buildings along it have been inspected for structural damage, city officials said.

The charges against Tsarnaev, initially filed under seal Sunday, were presented to him Monday in his room at Boston’s Beth Israel Deaconess Medical Center, where he’s listed in serious condition after his capture last Friday. FBI officials said Monday that Tsarnaev was wounded in the head, neck, leg and hand after two shootouts with law enforcement officers.

“The government will always seek to elicit all the actionable intelligence and information we can from terrorist suspects taken into our custody,” said Carmen Ortiz, U.S. Attorney for the District of Massachusetts.

At the same time, rejecting calls made by congressional Republicans, White House spokesman Jay Carney said the administration wouldn’t designate Tsarnaev as an enemy combatant. The designation would have permitted additional interrogation of Tsarnaev, but Carney said it was unnecessary.

“It is important to remember that since 9/11 we have used the federal court system to convict and incarcerate hundreds of terrorists,” Carney said.

The weapon of mass destruction charge is rooted in a fairly broad definition of the term. Under U.S. law, a weapon of mass destruction may refer to a chemical, biological or radiological weapon of any size. It also may refer to a bomb, mine or rocket, or similar kinds of “destructive devices.” The statute doesn’t specify a certain number of casualties for a weapon to be considered one of “mass destruction.”

The charges were unsealed in federal court in Boston shortly before the usually bustling city calmed for a moment of silence at 2:50 p.m., the approximate time of the first bomb explosion April 15. At Logan International Airport, passengers paused for about a minute, while men took off their revered Boston Red Sox baseball caps.

Two prosecutors from the Massachusetts district’s Anti-Terrorism and National Security Unit, William Weinreb and Aloke Chakravarty, will lead the case for the Justice Department. Weinreb’s prior cases include the high-profile charges against Faisal Shahzad, a naturalized American citizen from Pakistan who was sentenced to life in prison for the attempted bombing of New York’s Times Square three years ago.

Tsarnaev will be represented by the federal public defender’s office in Boston. On Monday, Federal Public Defender Miriam Conrad, citing the “magnitude of this case,” asked a judge to appoint two defense attorneys with experience in capital cases for Tsarnaev, instead of the usual one.

Because of his throat wound, some news accounts say, Tsarnaev has been communicating in writing or through other means. During the proceeding at the hospital, a transcript shows, Tsarnaev nodded in response to several questions and answered “no” when he was asked whether he could afford a lawyer.

"I find that the defendant is alert, mentally competent and lucid," U.S. Magistrate Judge Marianne B. Bowler said, according to the transcript. "He is aware of the nature of the proceedings."

Tsarnaev’s brother and suspected co-conspirator, 26-year-old Tamerlan Tsarnaev, died very early Friday after a running gun battle with police. The two men had carjacked a Mercedes SUV around midnight Thursday, according to an affidavit filed Monday in which FBI Special Agent Daniel R. Genck vividly describes a confrontation.

According to Genck’s affidavit, a man was sitting in his car in Cambridge late Thursday when one of the Tsarnaev brothers approached and tapped on the passenger’s side window.

“When the victim rolled down the window, the man reached in, opened the door and entered the victim’s vehicle,” Genck recounted. “The man pointed a firearm at the victim and stated, ‘Did you hear about the Boston explosion?’ and ‘I did that.’ The man removed the magazine from his gun and showed the victim it had a bullet in it, and then reinserted the magazine. The man then stated, ‘I am serious.’ ”

According to the affidavit, the carjacker then forced the victim to drive to another location, where they picked up a second man, who put something in the trunk of the car. The victim further said the two men spoke to each other in a foreign language. The car’s owner said he was able to escape eventually after being driven to an ATM to withdraw money and then to a gas station and convenience store.

Videotapes reviewed by investigators appeared to show the Tsarnaev brothers carrying large knapsacks as they walked along Boylston Street about 11 minutes before the first explosion. Further videotapes and still photographs reportedly show one of the brothers slipping off his knapsack in front of the Forum restaurant and walking away. About 30 seconds before the first explosion, Genck recounted, videotape shows Dzhokhar Tsarnaev appearing to talk into his cellphone.

“A few seconds after he finishes the call, the large crowd of people around him can be seen reacting to the first explosion,” Genck recounted, while Tsarnaev “virtually alone among the individuals in front of the restaurant appears calm.”

The videotape then shows Tsarnaev leaving his knapsack on the ground and walking away, Genck said. Ten seconds later, the second explosion occurred.

Investigators subsequently determined that both bombs were constructed using pressure cookers, BBs and nails, as well as a low-grade explosive and a green-colored fuse. A search of Tsarnaev’s dorm room at the University of Massachusetts at Dartmouth uncovered clothes that resembled those seen in the videotapes, as well a “a large pyrotechnic” and BBs, according to the affidavit.

“The mayhem they created,” Menino said at a news conference Monday, “is unheard of.”

The first of the funerals for the three who were killed in the attacks was held Monday. Massachusetts Gov. Deval Patrick and Sen. Mo Cowan, D-Mass., were among those who attended the service for Krystle Campbell, 29.

Boston University was to hold a memorial service Monday night for graduate student Lu Lingzi. The university has set up a scholarship in her name.

By Michael Doyle and Lesley Clark
McClatchy Newspapers