Alex Witt   |  April 21, 2013

Legal issues surrounding Boston bombing suspect

Lead prosecutor in the Timothy McVeigh trial, Scott Mendeloff, breaks down the legal issues surrounding bombing suspect Dzhokhar Tsarnaev with MSNBC’s Alex Witt. They discuss the similarities and differences between the Boston and Oklahoma City bombings.  Mendeloff offers his thoughts on trying Dzhokhar as an enemy combatant, not Mirandizing the suspect, and the role of Dzhokar’s older brother.

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This content comes from Closed Captioning that was broadcast along with this program.

>>> this weekend marks 18 years since a truck bomb drove into a oklahoma city federal building . with a welcome to you, scott, i'm glad to speak with you. i want to talk to you about similarities that you see between boston bombings and the one in oklahoma city . are there any?

>> well, there are some. it's hard to tell, because we're at a point where we don't know that much. but it seems like what we certainly have is two bombs that are very unsophisticated. there's nothing in the bomb that indicates that it wasn't home grown. we've got at least one naturalized citizen . and we also have the leader who is a loaner. tim mcveigh was a loaner and tamerlan appears to have been a loaner. the difference that i see is that the person that we're going to be dealing with in trial, dzhokhar, may be very different than terry nichols , the number two in the oklahoma city case.

>> what about -- let's face it, 18 years ago, that was pre-9/11, so would mcveigh have been tried today as an enemy combatant because he had a military background. does that mean anything?

>> no. he would definitely not have been tried as an enemy combatant . to be tried as an enemy combatant , you have to be part of a -- or associated with a foreign force. not necessarily a state, but a foreign force like al qaeda . mcveigh definitely was not. he was super charged politically. we don't know whether tamerlan was. but it seems like dzhokhar was not, although we don't know for sure.

>> okay, but you've heard some gop elected officials, they would like to see tsarnaev tried as one. so your thoughts on that?

>> i don't think that that's going to happen. the obama administration has been clear, they're distancing themselves from that concept. you've got an american citizen . we don't have dzhokhar going abroad in training. his brother apparently did. but dzhokhar didn't. and dzhokhar is going to be tried as an individual on his own right. so i think the chances of this ending up as an enemy combatant are very small.

>> but you've heard that because of high security concerns they would like to question him for a period of time, albeit briefly, before mirandizing him and reading him his rights. how long can they do that? how far can they go with those questions?

>> well, that's a very good question. because the longer we go, the less likely there is that there's a public security issue here. one thing that the defense will certainly raise is the remarks of the police chief of watertown in which he said these are the only two guys, we're done. now the argument from the government will be well, he wasn't informed. but, you know, that's going to be played out pretty significantly by the defense.

>> scott, do you have any knowledge about the fact that -- i brought this up with one of our correspondents, luke russert . i said look, they want to be able to speak with him. but that would happen immediately. the fact is we believe him not to be able to communicate because of his injuries right now. does that push back the timeframe that they could extract information without having a lawyer present, without having him go through the typical civilian court rules?

>> that's a very interesting question. because under the law, they have to -- he has to have an initial appearance within 72 hours . at that initial appearance , he will have a lawyer. so that's not an arraignment, but it's an initial appearance . it's going to be difficult. they're going to get squeezed as to whether or not they can get this in here without him already having a lawyer .y also, whether they can question him is not based on whether he can speak or not. they can certainly question him and have him answer by writing, for example. but really, one of the major issues is what's the physical state of this man? we just don't know.

>> yeah. and i should say that we're getting from the federal public defender 's office there in boston that they will indeed be representing dzhokhar tsarnaev in court. what do you expect him to be charged with?

>> certainly he'll be charged with conspiracy to use a weapon of mass destruction . the reason i say conspiracy is because i question how much information they've got about what he did personally right now. it certainly seems like they have information that he did this with his brother. i would bet that the first charge, and maybe the only charge right now, would be conspiracy to use a weapon of mass destruction .

>> okay. it's probable that his older deceased brother tamerlan was the mastermind of this entire thing. if it turns out that way, does that have any impact in court?

>> of course. you know, the thing that you hearken back to is the d.c. shooters. the younger one was sort of a follower, apparently. and here, that certainly seems to be the case. everything we hear about the personality of dzhokhar makes it seem like he was very different from his brother and following his older brother. older brother having a very big impression on him. the fact that he went and partied with his college roommates after this just shows a level of immaturity and lack of commitment. we'd have a know a lot more, obviously. we're reading tea leaves . but i think that's a very interesting difference between this case and some of the others. in the oklahoma city case, terry nichols was very committed to the political act that they ultimately did take against the building and that was in challenge to what happened at waco. but they both believed it strongly.

>> how long do you think until we hear charges? we hear it could come today. this timeframe. the ability to get information from him, do an investigation. is it likely those charges could come today, or will it be a while?

>> the charges will come soon. but as i say, it will be an initial charge through what's called a criminal complaint. after that, there will be an inindictment. but they could put off that indictment for a while, because they're going to want to use the federal grand jury to investigate this. and obviously one of the major elements here is what else is involved here. like we did with mcveigh , one of the things that they'll be very interested in and focused heavily on was was there a conspiracy. and the second thing is where are we with respect to his activities abroad. this would be the first chechen attack in the united states . is this based on chechen nationalist views? probably not. is it based on islamic views, jihadist views? it may well be, but we don't know that. those are the two things that i think they're going to spend a lot of time on.

>> all right. we spent a lot of time with you and i'm glad for that. thanks so much.