What's Next Now That Tsarnaev Has Been Charged: A Legal FAQ

Understanding what happened Monday and what comes next for the Boston bombing suspect
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dtsar.jpgMassachusetts State Police/AP Images

The Justice Department Monday filed a criminal complaint in federal court in Boston charging Dzhokhar Tsarnaev with committing and conspiring to commit last week's Boston Marathon bombings. The suspect, still gravely wounded, his breathing tube only recently removed, his interrogation evidently over, was given his "initial appearance" in the civilian case by virtue of a visit, at his hospital bed at Beth Israel Deaconess Hospital, by a federal magistrate. Lesson: If the case is big enough the court comes to you when you can't come to court.

Soon, Tsarnaev will be arraigned on the charges and he will enter some sort of plea. Even sooner, he will have a defense attorney to assist him (indeed, William Fick, of the Federal Public Defender's Office in Massachusetts, already has been appointed). Absent a guilty plea, pretty soon we'll all be talking about the propriety of change-of-venue motions and prejudicial pretrial publicity. This is how domestic bombing cases begin. Judging from the national conversation Monday, however, there is still a great deal of confusion over what's happening, and why. Here are five basic questions, and answers, on where we are and what's likely to happen next.

1. Why wasn't he treated as an enemy combatant? This is by far the least sensible question asked in the hours since Tsarnaev was caught. The simple answer is: because he couldn't have been. The Constitution, and federal statutory law, prohibit the government from treating as an "enemy combatant" a U.S. citizen accused of committing crimes on U.S. soil. End of story. You could argue, as some have, that Tsarnaev was treated as a ''combatant" because he was not immediately read his Miranda rights. But the "public safety" exception to that constitutional rule is unrelated to the government's designations of "combatants." You or I could theoretically be subject to the Miranda exception (which would be scary); we could not be considered "enemy combatants" and thrown into Gitmo (which would be even scarier).

2. What exactly happened today in that hospital room? Tsarnaev was not arraigned. He was not asked to enter a plea. He was merely checked into the federal system with his initial appearance and was advised of the charges against him. The presence of the bedside magistrate tells us that the feds want to push forward quickly here, to get the case into the federal civilian system, both to neutralize the nonsense offered up by Sen. Lindsey Graham and company and to put pressure on the defense. Soon there will be a federal trial judge assigned to the case. Soon it will look much like the hundreds of other bombing cases handled by the federal courts since the beginning of the Republic.

3. What does the federal complaint tell us? Not much that we don't already know. It's important to remember that this document is just an initial expression of the government's case against Tsarnaev. It is a document designed to keep the suspect in custody; to ensure that he is not freed by a judge or permitted out on bail or bond pending a more formal indictment. The substance of the charges are pretty basic and unsurprising to those following the case. When you use a "weapon of mass destruction" (a bomb) to blow up people, and you do blow up people, it's a federal crime. We'll likely know more when we see the grand jury's indictment and that won't come for weeks.

4. Why no murder charges in the federal complaint? Another easy one. Murder is typically a state crime and federal murder charges occur only when a murder victim is a federal employee or otherwise related to the federal government. Because the 1995 Oklahoma City bombing ripped apart a federal building, it had many such victims, which is why it included federal murder charges. By contrast, the Marathon bombing fatalities were all civilians. What will happen now is that Massachusetts authorities will wait to see how the federal case unfolds before deciding whether to prosecute Tsarnaev on state charges. Such a case would occur after the federal case. The authorities, in other words, will have two bites at this apple.

5. Is this going to be a capital case? All we know today is that this is a death-eligible case; that the charges so far against Tsarnaev are capital charges. But the Justice Department still has to make its own internal assessment about whether to seek the death penalty. That will likely come months from now, after Attorney General Eric Holder goes through this specific set of protocols, and after he consults with the victims of the bombing, the survivors, and Massachusetts officials. The Bay State, remember, does not have the death penalty as a sentencing option and that's a factor the Attorney General must consider.


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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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