The jihadist who killed eight New Yorkers and wounded twelve others in a truck attack along the West Side Highway’s pedestrian path has been indicted on potential death-penalty charges by a federal grand jury in lower Manhattan.
Highlighting the 22 charges announced by the Justice Department on Tuesday are eight counts of murder in aid of racketeering, each of which carries a potential death sentence. There are, in addition, twelve counts of attempted murder in aid of racketeering, each having a ten-year maximum prison term. The indictment further alleges that Saipov provided material support to the Islamic State (ISIS), a designated terrorist organization under federal law. That charge carries a potential sentence of life imprisonment because Saipov’s material support resulted in murders. Finally, there is also a charge of violently damaging an automobile with reckless disregard for human life.
The criminal complaint is only the first step in the case, really just a means of keeping Saipov detained without bail, not the formal indictment on which he will ultimately be tried. When that indictment is filed, I am hopeful it will include charges of murder in aid of racketeering. This offense (section 1959) is a capital crime, prohibiting murder (as well as other violent crimes) committed “for the purpose of gaining entrance to” a racketeering enterprise. ISIS clearly qualifies as such an enterprise under federal law (under section 1961, it is a group of individuals associated in fact — even though not a legal entity — and it engages in acts of murder, among other depravities). Further, even if Saipov was not a member of ISIS before his killing spree, he was patently seeking entry into the network . . . and he succeeded in getting it. ISIS branded him “one of the caliphate soldiers” in its claim of responsibility.
Prosecutors from the Southern District of New York (SDNY) are now relying on this potentially capital offense. It is important to note, however, that they have not yet filed a notice of intent to seek the death penalty.
It will not be enough merely to deny that this is so. Prosecutors will want to make a very strong record of compliance, one that will impress the court. The case has been assigned to District Judge Vernon S. Broderick, an Obama appointee and a well-regarded former SDNY prosecutor. He will surely be watching attentively.
While we should not have expected that the government would abandon the vehicular-damage charge, it remains a heavy lift, for the reason we’ve previously covered: The offense, under Section 33 of the federal penal code, “is really addressed at incidentally endangering human beings while doing violence to a car, not incidentally endangering the car while doing violence to human beings. The latter is what Saipov did — an attack with a truck, not on a truck.”
Plainly, ISIS will be center stage when the case is tried. The first seven pages of the indictment describe the terrorist organization, illustrating the essential point highlighted above: ISIS qualifies as a racketeering enterprise under the federal RICO law (the Racketeer Influenced and Corrupt Organizations Act).
A dyed-in-the-wool jihadist is more interested in claiming credit for his atrocities than in avoiding legal liability for them.
This is where it could get interesting. Saipov is a committed jihadist who made the ISIS cause his own and wanted to be part of the organization. Yet he probably did not have what the intel analysts call “operational” ties before the attack, being inspired, rather than directed, by ISIS. Consequently, any competent defense lawyer will want to argue that Saipov was not really involved with ISIS and force the government to try to prove otherwise.
Will Saipov permit such an argument to be made on his behalf? A dyed-in-the-wool jihadist is more interested in claiming credit for his atrocities than in avoiding legal liability for them. This is why jihadists often end up representing themselves: Figuring they are apt to be convicted anyway, they see the trial as a political soapbox to be exploited, not a legal dispute to be contested. Rightly viewing their duty as making the best legal defense possible, most defense lawyers do not see it that way.
In any event, as we’ve noted before, Saipov “fully intended his act to contribute to ISIS’s sharia-supremacist cause,” and ISIS itself embraced him afterwards, celebrating him as “one of the caliphate soldiers.” The government will emphasize these remorseless facts. In drafting the indictment, the prosecutors designed their main charges to be mutually reinforcing: To convince the jury that Saipov killed in order to provide ISIS with material support and resources — the main “resource” being himself — is also to convince the jury that Saipov’s motive was to “gain entrance” into ISIS membership, an essential element of the murder and attempted murder in aid of racketeering charges.
It is almost always tougher to prove murder in a federal than a state prosecution. In the main, murder is a state crime, so in a state homicide prosecution, the taking of life is the central focus. Murder becomes a federal crime only when some federal interest — such as national security against foreign terrorist organizations — is at stake. In such cases, it is just as critical to prove the federal interest as to prove the homicide. Criminal lawyers attuned to federalism principles easily grasp this, but jurors — who naturally figure murder is murder — sometimes find it distracting.
That said, by charging murder in aid of a terrorist racketeering enterprise, federal prosecutors place the emphasis on the barbarism of both Saipov and ISIS. It will make for a strong case and, surely, a capital case.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.