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.