By David Ruppe

Global Security Newswire

Like most of the U.S. government, the U.S. Congress apparently never anticipated that a commercial aircraft loaded with fuel could be used as a weapon of mass destruction.

That could have implications for suspected Sept. 11 attack conspirator Zacarias Moussaoui, whom the Justice Department indicted last week on six counts.

In their fourth count against Moussaoui, prosecutors charge that he and his al-Qaeda associates conspired to use “weapons of mass destruction,” namely, “airplanes intended for use as missiles, bombs, and similar devices.”

The hijackings and the subsequent attacks on the World Trade Center and the Pentagon are believed to have killed about 3,000 people.  Some legal experts say, however, that the applicable federal statute, Title 18, Section 2332a(a), appears to preclude defining aircraft as weapons of mass destruction.

“When you turn an airplane that has how many thousand gallons of fuel into an inferno,” said Robert Kogod Goldman, an American University law professor, “it has the effect as though it were [a weapon of mass destruction], but ‘as though it were’ is not the same as ‘it is,’ as defined by the statutory requirements.”

Conventional Weapons

In part, the statute defines weapons of mass destruction traditionally, as nuclear, biological or chemical weapons (see related GSN story, today).

In addition, the statutory definition, passed in the wake of the 1993 World Trade Center bombing, broadly includes conventional “destructive devices” that can be used to create mass destruction. The perpetrators in the 1993 bombing attempted to do so by placing explosives in the garage beneath one of the towers.

“Destructive device” is defined elsewhere in the title (see Section 921) as an explosive or incendiary device or poison gas—bombs, grenades, rockets, missiles, mines, guns with barrels more than one-half inch in diameter (though not shotguns) or any equipment that can be made into such explosive or gun-like weapons.

Under that definition, and particularly the final part, the commercial aircraft used on Sept. 11 would appear to qualify as weapons of mass destruction, since they were essentially made into missiles and incendiary devices by the way they were used by the hijackers.

Exclusionary Language

Section 921 also specifies, however, that “destructive devices” can only be items that were “designed or redesigned” for use as weapons, such that items “not likely to be used as a weapon” would not be included.

“If a weapon of mass destruction is defined as any device that can be used to kill large numbers of people, then you have a criminal provision that would essentially swallow a host of other criminal provisions,” said Jeffrey Turley, a professor at the George Washington University School of Law.

Obviously, commercial jets were not designed to be terrorist weapons, so the statute appears to preclude them as weapons of mass destruction, he said.

“The exclusionary language of ‘destructive device’ would seem to place an airplane outside of that definition,” said Turley. “If the government argues that an airplane is a destructive device under the meaning of the statute, it would manifestly change the language by Congress.”

Oklahoma City As Precedent?

Rental trucks were not designed as weapons either, but Timothy McVeigh and Terry Nichols, defendants in the 1995 Oklahoma City bombing, were charged and convicted with conspiracy to use a weapon of mass destruction.

Law professor Steven Saltzburg, also at George Washington and serving on the American Bar Association’s Terrorism and Law Task Force, believes that precedent could support the prosecution in the Moussaoui case.

“The law language of this statute represents an expansive view of the term weapons of mass destruction,” he said. “It’s meant to capture anything that would result in the death of other people or the substantial injury to property.”

An important distinction from the Sept. 11 case, however, may be that McVeigh and Nichols designed and constructed a “truck bomb” by adding explosive components to the truck, in contrast to the Sept. 11 hijackers who used unmodified airliners.

An Expanded Meaning?

The prosecution might argue that the aircraft were “designed or redesigned” to be missiles by virtue of how they were used.  In other words, although they were not made to be incendiary devices, they were used as such, which made them such.

A prosecution source suggested that line of argument, telling Global Security Newswire the prosecutors believe the terrorists effectively redesigned the aircraft into weapons of mass destruction by selecting jets loaded with fuel, commandeering them, and using them as they did.

“One doesn’t generally think of a plane as a weapon,” said Goldman. “On the other hand, I think it would be not a stretch for a good prosecutor to say, “you take an airplane filled with fuel and you direct that thing…” and it becomes one.

Still, that might appeal to Moussaoui’s jury, it may be a tough argument to make before a federal judge, who might grant a motion to dismiss the count, experts said.

“When it comes to defining a criminal act, the courts view that as the sole function of Congress and tend to hold the line in efforts to expand meanings beyond the most incremental,” said Turley. “This is an area where the government is not given a great deal of deference by the courts.”

Allowing an expanded definition of the phrase weapons of mass destruction, said Turley, could make it “unmanageable and ambiguous … then you have a criminal provision that would essentially swallow a host of other provisions.”

He believes the statute could be improved, by defining weapons of mass destruction not in terms of items, but rather in terms of the intent of the perpetrator.

“The weapon itself is a poor basis to define the crime.  The crime should be defined as to the intent of the actor, not the relatively arbitrary [weapon] selection of the actor.”

As for Moussaoui, he is charged with five other serious crimes, including conspiracy to commit international terrorism, which also could bring the death penalty.

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