Analysis of the Investigation and Indictment of Tamerlan Tsarnaev

Tamerlan Tsarnaev should have been charged with material support for domestic offenses, not under the foreign-terrorist-organization statute. He never conspired with a designated group, and federal law names domestic terrorism without outlawing it.

The paper works the Boston Marathon bombing as a charging problem rather than a narrative. It argues that mens rea and actus reus are both plainly satisfied, since the conduct was purposeful and affirmative, but that the statute prosecutors would reach for first does not fit: 18 U.S.C. § 2339B requires material support to a designated Foreign Terrorist Organization, and on the available evidence Tsarnaev conspired with his brother, not with a designated group.

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