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Tuesday, April 23, 2013

Wait, does this mean that Iraq DID have WMDs?

At the Volokh Conspiracy, Professor Adler explains how Boston bomber Tsarnaev has been charged with using a "Weapon of Mass Destruction."  Linking to a discussion on Popehat, Adler points out that the statute invoked defines "WMD" as "any destructive device," with a reference to a separate definition of that term that includes IEDs.  The government's interpretation is clearly that any IED counts as a WMD.

I can't help but wonder if this theory is going to get SWANCCed

One way to interpret the WMD provision is simply to plug in the "destructive device" definition.  But that would seem to be similar to plugging in "Waters of the United States" as the definition of "navigable waterways."  Doing so in the CWA context, said the Court, reads out the term navigable -- and in the Boston bomber case, I wonder if using the statutory definition reads out the "mass" from WMD.

Now, it certainly might be asserted that use of an IED in a crowded public space or tossing a grenade into a mall  would constitute an act of mass destruction.  But if the Court was right in SWANCC that there is a difference between giving "a word limited effect" and giving it "no effect whatever," it seems the government might have to show that a destructive device rose to the necessary level of a mass  threat to trigger the WMD provision.  If a person uses an IED to, say, blast a stump in their own back yard, have they used a WMD? [Legal disclaimer:  please don't use an IED to blast a stump in your back yard].

Another way to interpret the WMD statute is to assert that any destructive device could count as a WMD -- but only if it is in fact a WMD.

For more, see Time's Swampland, this occasional paper from the National Defense University on the lack of a consensus definition of WMDs, or note 20 of Robert Chesney's 2009 symposium paper, which notes that the statute's definition of WMDs is "misleading to laypersons".

Posted by Geoffrey Rapp on April 23, 2013 at 10:44 AM | Permalink


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Were this case to be SWANCC'ed, it would occur because of the tenuous connection to the federal commerce power, not the overbroad definition of WMD.


Posted by: Jonathan H. Adler | Apr 23, 2013 8:34:33 PM

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