Charges filed against accused Boston bomb conspirator Dzhokhar Tsarnaev parallel those in a prominent case that played out in Oregon’s federal court earlier this year. Like Tsarnaev, Beaverton-raised Mohamed Mohamud faced charges related to alleged domestic terrorism. Mohamud was convicted on those charges in January. April Baer followed that trial, and joined me.
GN: April, what are the similarities between these two cases?
AB: Few, at the moment, with the limited information that we have about the case they’re building in Boston. Both young men were 19 when they were arrested - although Mohamud is now 21. Mohamud’s case took the better part of two years to wend its way through the courts. Both men were charged under the same section of U.S. law. Tung Yin is a Professor of Law at Lewis and Clark Law School in Portland, who followed the Mohamud case:
Tung Yin “The underlying statute is the same. In It’s 18 U.S. C-2332A, Use of a Weapon of Mass Destruction. In Mohamud’s case, the charge was attempting to violate that statute, so the government had to prove it wasn’t just that he wanted to, he took substantial steps toward completion of that. In the Tsarnaev case, it’s simply Use of Weapons of Mass Destruction.”
AB: The differences begin in these two cases with the means by which the world found out about them. The Boston Marathon bombing, which Tsarnaev is accused of carrying out with his brother, killed three people, and injured more than 200. In Mohamud’s case, he was arrested at the moment he believed he was detonating a bomb, set at Portland’s Pioneer Courthouse Square. It actually was an inert device built by the FBI, to look like a bomb.
GN: And there was a rather involved FBI operation that led up to that arrest, correct?
AB: Exactly. FBI agents testified during Mohamud’s trial that they engaged him with undercover operatives, at first to figure out if Mohamud was just someone who read and wrote a lot of jihadist propaganda, or whether he might someday undertake an act of domestic terrorism. They testified that they grew to believe he was indeed predisposed to commit what he thought to be a bombing. Mohamud’s attorneys argued he had no knowledge of bombs, never made a move to commit an act of terrorism, until the FBI’s operatives started working with him. The jury, in the end, convicted Mohamud after less than a full day’s deliberation.
GN: So is this the kind of attack the FBI says it was trying to prevent?
AB: That’s what a lot of people familiar with the case are discussing. Jeffrey Addicott is the Director of the Center for Terrorism Law at St. Mary’s University School of Law in San Antonio. He’s taught classes at the FBI Academy. And he calls Boston a reminder that intelligence about potential threats is key to national security.
Addicott explained, “If you’re trying to stop these people at the Marathon, you’re too late. You’ve got to get to them before they get to the airport, before they get to the Boston Marathon, before they get to the bus station. And that means intelligence.”
But the Tsarnaev case has raised questions among scholars and attorneys with concerns about civil liberties about where the FBI’s priorities lie. The FBI confirmed its agents questioned Tsarnaev’s brother, Tamarlan, in 2011. Homeland Security Secretary Janet Napolitano told a Senate panel this week that the FBI’s alert on the elder Tsarnaev brother expired, meaning the investigation was closed, when he flew back into the country last year.
Critics of FBI’s methods ask whether the government is putting proper focus on existing threats, rather than potential threats. Oregon’s Senator Ron Wyden may hear more about that this week, as the Senate Intelligence Committee gets briefed on the Boston Marathon bombing Thursday.
GN: Do you think these two cases might play out similarly?
AB: It’s very hard to say, because it’s so early, but consider this: We know from trial records the FBI had reams and reams of information on Mohamud at the time of his arrest - months of electronic and recorded surveillance. Based on what’s public at this time, it appears investigators had relatively limited contact with the Tsarnaevs, by comparison.
All arrestees are presumed innocent until proven otherwise. Experts I spoke with say the court-appointed defense might take a number of different paths. They might say he is not guilty.
Or he might plead guilty, and perhaps try to make some sort of plea deal. If prosecutors decide to seek the death penalty, defense attorneys I spoke with say a plea deal might be one strategy to avoid a death sentence.
GN: So the death penalty is potentially in play for the Tsarnaev case, whereas it was not for Mohamud.
AB: That’s correct, though we don’t know if prosecutors will seek it.
But Tung Yin says the difference is that Mohamud was convicted of trying to set off what he thought was a bomb. Tsarnaev stands accused of setting off a real device that killed people.
GN: Thank you, April
AB: Thank you for having me.