Academic

Portland Merc on the two bombing cases

By Tung Yin

Don't Call Them Terrorists (Portland Mercury)

This short article juxtaposes the Mohamud case with the Woodburn bank bombing case, which just resulted in convictions of both defendants of all counts, with the capital penalty phase about to start.  The article notes pointedly:

The case of father and son Bruce and Joshua Turnidge bears several similarities with Mohamed Osman Mohamud's... except that no one is using the word "terrorism."

My colleague John Parry is quoted as thinking that there's nothing sinister about the fact that the Turnidges' being prosecuted in state court for non-terrorism offenses, because state prosecutors may have wanted to take the lead, since there were state police officers killed in the bombing.  (Aggravated murder is nothing to sneeze at.)

In addition to that, I'll note that while Mohamud presumably could be prosecuted in state court for attempted murder, the evidence in his case was gathered entirely by federal agents.  A critical element here is that some of the evidence that apparently led the FBI to think that it needed to investigate Mohamud were the emails that he sent to an unindicted associate in Pakistan.  It sounds like the FBI got hold of those emails through a FISA (Foreign Intelligence Surveillance Act) warrant.

(Unlike a regular criminal investigation warrant, a FISA warrant does not require a showing of probable cause to believe that a crime has been or is being committed.  Rather, a FISA warrant is about gathering foreign intelligence.)

Here's the key point: state investigators do not have the ability to get FISA warrants!  So to the extent that the emails were critical to the FBI's pushing the investigation against Mohamud, it could only be the federal government that would pursue this case.  And because there is no general federal murder statute, 18 USC 2332a was one of the most serious charges that could be brought based on the allegations in the FBI affidavit.

Full post as published by The Yin Blog on December 09, 2010 (boomark / email).