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Heaven forfend we should actually listen to the experts

Last week, word came out of the Zacarias Moussaoui trial that the jury deliberating his sentence had asked the judge a question -- could hijacked airplanes be considered Weapons of Mass Destruction? The judge answered them that for the purposes of this trial, the answer was yes.

Now I want that SOB dead as much as the next person (and more than a great many), but the judge was flat-out wrong here. An airliner is NOT a weapon of mass destruction.

I've always deferred to experts when it comes to terminology, and when it comes to weapons, I usually let the military have the final word. Their business is killing people and breaking things, and they more than anyone ought to know their own lingo.

According to the military, a Weapon of Mass Destruction is simple: it is a nuclear, biological, or chemical weapon. Period. And as far as WMD doctrine goes, they are interchangeable: a nuke is a bug is a gas. And an airliner is not a nuke, a bug, or a gas. Thanks to its fuel, it's essentially one humongous, self-propelled Improvised Explosive Device (IED), with an element of suicide bomber tossed in. It's an unconventional application of an essentially conventional weapon.

A similar argument was held when the recently-expired assault weapons ban was being deliberated. Both sides looked at Congress' definition of "assault weapon." Congress said the distinguishing characteristics of an assault rifle were:

  • A pistol grip
  • A lgrenade launcher
  • A folding, collapsing, or telescoping stock
  • A flash suppressor
  • A bayonet mount

(Other, similar rules applied to pistols and shotguns)

Now, I went to the military's definition of an "assault rifle." According to the folks who actually use them on a daily basis, an "assault rifle" is a small-caliber rifle that is capable of firing in either full automatic or burst mode -- which means that more than one round is fired when the trigger is held down. This is how the military distinguishes an assault rifle from an ordinary rifle, a submachine gun (a fully automatic weapon that fires pistol ammunition) and a machine gun (which fires larger ammunition).

I found I had to agree with the critics. The criteria Congress outlined were all about how the gun LOOKS, and did not affect in the least how the gun FUNCTIONS. It was, indeed, a "scary-looking gun" ban, and good riddance with its expiration.

And likewise with the Moussaoui case. I have no doubt in my mind that he and the rest of the 9/11 hijackers would have used WMDs on that day if they had access to them, but the simple fact is they did not. The government side that argued that line were wrong, and the judge was wrong to buy into it. There are plenty of other reasons why he ought to be put down like the mad dog he is -- there's no reason to toss in the whole WMD silliness.


Comments (29)

Given the two crashes at th... (Below threshold)
Cybrludite:

Given the two crashes at the WTC had a total effect similar to a 1 kt tac-nuke, I can see the judge's point of view. I'd also consider an intentional recreation of the Texas City explosion & fire to be one as well.

Yeah right, planes have che... (Below threshold)

Yeah right, planes have chemicals in them, therefore they are chemical weapons. Ergo, weapons of mass destruction...

;)

I'm surprised a judge would... (Below threshold)
kevino:

I'm surprised a judge would say this because a great deal of the Law is concerned with the definition of things. WMD is carefully defined by international law. Specifically, it is defined by the treaties used to control the development, proliferation, and use of WMD. A quick Google search would have shown that a plane is NOT a WMD.

What a tool.

I was under the impression ... (Below threshold)
ForNow:

I was under the impression that weapons nuclear, biological, or chemical are called "NBC weapons." A hijacked airplane can quite fairly be considered a conventional-tech weapon of mass destruction.

The context of the jury's question is important. For instance, if they were asking in regard to Moussaoui's possible violation of international law regarding WMD as defined in certain ways, that's one thing. If they were asking in regard to the sheer anti-humanitarian seriousness of Moussaoui's crimes, that's a different thing.

Taking a phrase like "weapon of mass destruction" in its literal English-language meaning is really not like judging whether a weapon is an assault weapon on the basis of whether it's scary-looking. It's the difference between actual effects (mass destruction) and mere appearance to an untrained eye.

WMD is carefully d... (Below threshold)
WMD is carefully defined by international law.

And if Moussaoui were being tried in an international court that might have a bearing on this case.

Though, I'm scratching my head over why the jury asked the question -- what bearing does the WMD status, or not, of a jet airliner have on whether they sentence him to death or not? What have I missed here?

Alright, I'm a lawyer. Beg... (Below threshold)
MItchell:

Alright, I'm a lawyer. Begin your jokes now, but . . . .

The judge is not bound by, and should not look to, international law. He is bound by the common law, statutes, and cases that interpret them.

Why is a "brief case nuke" that destroys a high rise or two a WMD but not jumbo liners which end up having a similar order of magnitude effect?

Hmmm...So, nerve g... (Below threshold)
Starboard Attitude:

Hmmm...

So, nerve gas coursing through the ventilator system of the WTC would be a WMD, but tons of burning jet fuel raining through the floors is not?

What killed most people? Burning jet fuel. What brought down the towers? Burning jet fuel (er, I mean Bush's controlled demolition team ;-)).

Isn't jet fuel a chemical cocktail? Isnt' the jet just a delivery vehicle?

Posted too soon.If... (Below threshold)
Starboard Attitude:

Posted too soon.

If they dropped napalm on Central Park, is there any question that it would be deemed chemical warfare, and WMD? (If you have doubts, then imagine if the US dropped napalm on one of Saddam's palaces--you KNOW that would be WMD!)

I don't see a valid distinction between dropping napalm on a park and injecting tons of jet fuel into a couple skyscrapers. They are both chemical weapons, they would both wreak massive destruction. They are both WMD.

Starboard, I probably shoul... (Below threshold)
Jay Tea:

Starboard, I probably should have spelled it out. "Chemical weapons" are those that cause death, injury, or incapacitation through a chemical reaction OTHER THAN combustion. Combustion is specifically excluded. Corrosion, toxins, and the like are banned -- otherwise, every single gun would be considered a "chemical weapon."

J.

Jay Tea,Your post ... (Below threshold)
Kim:

Jay Tea,

Your post is very interesting. After 9/11, perhaps WMD needs to be redefined/updated. Here's my suggestion:

A weapon of mass destruction is any object (person/place/thing) that is used/rigged/manipulated to kill/destroy a mass of people (at least 500 maybe?) and/or property (at least a $10 million maybe?).

Thoughts or comments?

NBC weapons all have the si... (Below threshold)
Maus:

NBC weapons all have the similar characteristic that their effects are undirectable by a human intention. (The initial nuclear explosion is directable but the fallout pattern is dependant on wind conditions and the like.) Further they all have a similar method for dealing with their secondary, and sometimes primary, effects -- witness NBC suits -- via closed environments with rigid air filtration requirements.

Contrast this to conventional weapons like traditional explosives where the blast may be omni-directional -- but is of a known and controllable range and effect as well as also requiring a human to choose the time and target.

So if one makes the equation that WMD = NBC, due the indiscriminate nature of the weapon, then a weaponized viral agent that only triggered in reponse to specific proteins or antibodies in a given host -- where those proteins or antibodies were only present in those that had quite recently received military medicine -- would not be a WMD on the basis of undirectable targets. Noone disputes that war is open season on military targets afterall. (Well... Some would)

Obviously, this wouldn't fly with the bulk of people and such a viral agent would still be considered a WMD.

Further contrast this to a booby trap such as a shotgun rigged to fire when a door is opened. The condition of triggering the weapon is "automatic" and does not require a brain at the switch to choose whether to fire or not. While this (AFAIK 100%) outlawed defense mechanism does not discriminate targets it is not a WMD. (Land mines also fall in this category.)

So given the above, a WMD can only be defined as a "really big weapon". One that inflicts a large number of casualties -- or is intended to at any rate -- per activation of such a weapon.

Turn that about a bit, push at the edges of the definition and you'll see that just about any weapon of military usefullnes above the level of the inividual soldier (not withstanding SAW's) becomes a WMD.

Which really all boils down to an efficiency argument. That which is 'efficient' is therefore evil. Like Capitalism. Make of it what you will.


Ok Jay. Help me understand... (Below threshold)
Starboard Attitude:

Ok Jay. Help me understand napalm which is recognized as a chemical weapon and wreaks it's havok through combustion.

Also tell me what would have happened if the jet fuel had been delivered through the WTC ventilation system unignited? Asphyxiation and sever respiratory damages caused by chemical reactions other than combustion. Is the fuel any less a chemical weapon simply because it was ignited?

Jay, here's what Answers.co... (Below threshold)
Starboard Attitude:

Jay, here's what Answers.com has to say about chemical warfare and incendiaries:

Chemical Warfare: Employment in war of incendiaries, poison gases, and other chemical substances. Ancient armies attacking or defending fortified cities threw burning oil and fireballs. A primitive type of flamethrower was employed as early as the 5th cent. B.C.; modern types are still in use. In the Middle Ages, before the introduction of gunpowder, a flammable composition known as Greek fire was used. Smoke from burning straw or other material was employed in early times, but its effectiveness is uncertain.

OK, Starboard, lemme expand... (Below threshold)
Jay Tea:

OK, Starboard, lemme expand a bit more: it also depends on INTENDED use. Just because I could beat you over the head with an M-16 doesn't make it a club. The primary use of jet fuel is to burn. The other considerations are side effects -- besides, jet fuel would be a horribly inefficient medium for such an attack. Various common chemicals mixed together (I seem to recall bleach being one of the most popular) would work far, far better.

In essence, the airliners were just really, really big IEDs.

J.

I hate to say this...... (Below threshold)
Starboard Attitude:

I hate to say this...

But the Chemical Warfare Convention does not define incentiaries like napalm and phosphorus as chemical weapons because they cause harm primarily through thermal energy. So, Jay's right about that.

But, I'm happy to say that Jay's argument above is silly. Intended use is irrelevant, as is efficiency. I knew a girl in high school who was a thalidomide baby and wore a hook over the stump of her left elbow. She clobbered a couple kids with it, and then had to register it with the authorities as a lethal weapon. Intended purpose? Nope. Efficient? Not as efficient as a gun. Lethal? Potentially if you teased her.

If one misuses a chemical to cause massive harm through chemical reactions, how and why would the product's intended use place it outside the definition of "chemical weapon?" Similarly, if the substance is not the most efficient killer available, but still capable of widespread harm through chemical reactions, why would it not qualify? I call BS to both those arguments.

Still, I concede the bigger argument to Jay.

Also,I should also... (Below threshold)
Starboard Attitude:

Also,

I should also confess that I always saw the airliners as big bombs until I read Jay's piece. That changed only when I felt the need to foist the chemical weapon fiction.

Damn it! Jay's correct, but only because the definitions are flawed! I hate it when that happens.

I was thinking in terms of ... (Below threshold)

I was thinking in terms of a dam. Blow the right dam at the right time and tens if not hundreds of thousands could die.

Whatever the military definition, I don't have a problem with a common law definition that looks at the potential for how many people it kills.

I am uncomfortable with the idea that you could escape punishment or be punished less if you kill the same number of people, but do it in an "innovative" way. The problem is terrorist killing people and especially in terrorist killing large numbers of people. The means they use is just that the means. Its the ends that we want to stop.

Who the hell cares if the s... (Below threshold)
cubanbob:

Who the hell cares if the scum thought he was going to employing a WMD? What difference does it make?
This scum is nothing more than a pirate under international conventions and therefore not even worthy of nice little legalities such as a trial.
Hang him on a meat hook on live television along with the rest of the AQ filth in Guantanamo. Beam it live throughout the Muslim world.

The weapons convention ment... (Below threshold)
Mitchell:

The weapons convention mentioned above is irrelevant. We interpret our law according to our body of U.S. jurisprudence. A weapon of mass destruction is, I am sure, thought of differently by The New York Times editor, the President of Syria, the European Union, etc. Irrelevant.

The intent of Congress is highly relevant. What do you think Congress intended by its laws? If you think they only meant anthrax or nukes, then I doubt you understand how Congress operates. And, they can further clarify the meaning later if some J. Tea judge goes Massachusetts on us.

It is what a Federal judge thinks a statute means given the text and legislative history, informed by our common law, and maybe some common sense.

A "weapon" is anything that can be used to commit harm. "mass destruction" is destruction of people or places of great magnitude. Ergo, a gas-filled jumbo-jet intended to be flown into a populated building is a "weapon of mass destruction" in the literal sense, and probably in the legal sense IF the statutes and cases are consistent.

Mitchell,If we are... (Below threshold)
Starboard Attitude:

Mitchell,

If we are signatories to the weapons convention, then it is highly relevant. Treaties supercede most forms of domestic laws, in most instances. It's the law of the land! Unfortunately, they don't spend much time teaching that in law school, and people whose caseloads are purely domestic in nature forget that.

As for Congress, I am all too familiar with how they work, unfortunately.

What I don't know, is how the definition of WMD plays a role in the this trial? What was the government's argument? Based on what law? And, what definition of WMD did the judge rely upon?

After all, my sentiments are similar to CubanBob's (despite the factual and legal fallacies).

Check the treaty, but I don... (Below threshold)
Mitchell:

Check the treaty, but I don't think it applies in this case. This is a criminal trial, the Treaty doesn't apply to criminal trials in the U.S.

Nice try, but stick to domestic law.

There are two entirely different laws that we are talking about here. There is no International Criminal Court, so treaties don't apply, only Federal criminal law in this case. If the federal law at issue encompasses "weapons of mass destruction," the definition is not dependant on a separate treaty dealing in a different realm.

Quote me the laws at issue, and you'll see the fallacy of this argument.

In the US, the criminal cod... (Below threshold)
Robin Goodfellow:

In the US, the criminal code defines Weapons of Mass Destruction to a rather low level (due to an Executive Order from the Clinton administration). Just about anything which kills a large number of people is defined as a WMD legally. For example, Timothy McVeigh was tried and convicted for the use of a Weapon of Mass Destruction. If a truck bomb killing 10x as many folks certainly counts as well. At least legally.

Mitchell,I don't k... (Below threshold)
Starboard Attitude:

Mitchell,

I don't know much about the treaty I mentioned, and I don't really care. It doesn't sound as though you know anything more. But in general, any civil or criminal law in contravention of a treaty is usually invalid. You might wanna brush up, because our Congress must not only comply with the Constitution, but our treaties. In many cases, they are on equal footing. Our Supreme Court determines that, not international courts.

Having served as the in-house General Counsel for US subsidiaries of multi-national product manufacturers--with parents and siblings scattered in every industrialized country, for many years, I have a pretty good working knowledge of the Supremacy Clause--especially the parts that provincial lawyers (and US District Court judges) overlook. Thank goodness for the Circuit Courts of Appeal and the Supremes. Treaties have huge domestic impact.

If Robin Goodfellow is correct, then I'm happy. That's the way it should be in my opinion.

Therefore, screw you, Jay. Losing the chemical argument is now moot! Bwaahahahaha!

Michell,I re-read ... (Below threshold)
Starboard Attitude:

Michell,

I re-read your post and had a glass of wine.

Hypothetically, if there is a federal statute that says "thou shalt not conspire to use WMD," and "WMD" is defined as "biological, chemical or nuclear," and a treaty defining "chemical" specifically excludes incendiaries, do you really think a conviction will follow?

Do you have experience with federal crimes? I concede that I don't. But I have trained several Federal District Court judges to respect our treaties in the civil realm. Many of their jaws have dropped--and sometimes it took the appellate courts to loosen the hinges. Your criminal mileage may vary, and I'm too lazy to do the research for a friggin' blog comment.

Moussaoui is charged under ... (Below threshold)
TexLex:

Moussaoui is charged under 18 USC 2332a, which provides definitions of WMD directly and by reference to 18 USC 921 and 18 USC 178.

Just how the judge got an airplane to fit into the definitions isn't entirely obvious, though she may have used the part of 921 that says a destructive device, hence a WMD, is a "missile having an explosive or incendiary charge of more than one-quarter ounce". It would be interesting to ask her about it after the trial is over.

Googling for 2332a indictments that specifically mention WMD produces some surprising results, BTW.

See (sorry for the long URLs)

http://www.capdefnet.org/fdprc/contents/shared_files/titles/18_usc_2332a.htm

http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000921----000-.html

http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=18&sec=178

The treaty is the "supreme ... (Below threshold)
Mitchell:

The treaty is the "supreme law" if and only if it applies to the present case.

In this case, no treaty applies. There is no treaty which defines the wmd with respect to criminal law in the U.S. It may define it for purposes of trade regulation, so that would not preclude a different definition for criminal cases here.

So, while I would, as a general rule, agree we apply treaties as law of the land, we don't apply them if they are not germaine to the case, and in fact, other law--U.S. criminal law in this case--applies.

I'll side with a Federal Judge on this one, and let you arm chair jockeys take the other side.

Robin Goodfellow: Go... (Below threshold)
kevino:

Robin Goodfellow:
Good catch. I don't see how an Executive Order gets to define Law, but the McVeigh indictment is 100% on point.

I looked for it in the US Code, and I found echoes of international law. 50 USC Sec. 2302: "In this chapter: (1) The term "weapon of mass destruction" means any weapon or device that is intended, or has the capability, to cause death or serious bodily injury to a significant number of people through the release, dissemination, or impact of - (A) toxic or poisonous chemicals or their precursors; (B) a disease organism; or (C) radiation or radioactivity."

Mitchell:"In this ... (Below threshold)
Starboard Attitude:

Mitchell:

"In this case, no treaty applies."

Don't be too quick to assume that.

" There is no treaty which defines the wmd with respect to criminal law in the U.S. It may define it for purposes of trade regulation, so that would not preclude a different definition for criminal cases here."

Trade regulation? Is that the context of the Chemical Weapons Convention? Really? Give me a break. If it is not concerned with war CRIMES, then what is it? Considering treaties usually supercede federal statutes, and often are held to equal standing with the Constitution, I would expect consistency regardless of context.

"So, while I would, as a general rule, agree we apply treaties as law of the land, we don't apply them if they are not germaine to the case, and in fact, other law--U.S. criminal law in this case--applies."

Duh. If it ain't germaine, we don't apply it. But are you really suggesting a federal law can define "chemical weapon" different from our treaties? I would recommend caution here. Think about all the problems with that.

It seems that kevino coughed up the relevant statute, and it seems consistent with the Chemical Weapons Convention (thanks, kevino). If there's no conflict, no problem. But what if there was a conflict--do you stand by your last post? I would spend a day in the library before spewing a "yes."

Now looking at kevino's statute, how is radiation defined? Thermal radiation was the cause of most damage on 9/11. Though I'm skeptical, couldn't one argue that thermal radiation is a WMD in this instance?

Just askin'. Pour me another glass of wine. I'm done pissing in the wind.

SA: quit with the crappy a... (Below threshold)
Mitchell:

SA: quit with the crappy attitude. You must really be having a bad week.

Sectioin 921 referenced above is something you've seemed to gloss over. Is it not to be given effect? Does it not constitute a Congressional broadening of the term "WMD."?

You started your rant before you even looked at a statute, so why don't you pipe down and consider the other possibilities, with the applicable law.

If the District Court is wrong, it will be overturned on appeal, and you can get back to happy wine drinking and hopefully aiming your piss in the toilet again.




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