Making a Federal Case of an O.C. Pipe Bomb

Charges filed this week under provisions of the USA Patriot Act against a man accused of making a pipe bomb illustrate how federal anti-terrorism laws are redefining terrorism, legal experts say.

The case, they add, is an example of a decades-long trend to federalize crimes, from drug and weapons violations to carjackings, that traditionally have been handled by local prosecutors.

Hai Duc Le, 34, is charged under the Patriot Act with using a weapon of mass destruction. He also is charged -- not under the act -- with trying to maliciously destroy buildings and vehicles, and carrying and using a destructive device.

Le and his brother Hien Duc Le, 33, are each charged with conspiracy to make a destructive device. The federal count carries a maximum of five years in prison and was not filed under the Patriot Act.

The brothers’ arraignments were postponed until Friday.

On Sunday, a remote-controlled bomb made with PVC plastic pipe and filled with roofing nails exploded in Hai Duc Le’s car, parked near a campaign office of Rep. Loretta Sanchez. Authorities say they are still investigating whether the Garden Grove Democrat was the intended victim. Police have said that a nearby cafe that caters to ethnic Vietnamese could have been the target. Le was seriously injured and remains hospitalized.

Legal observers say the fact that local authorities brought the case to the U.S. attorney’s office for prosecution is unusual but not unexpected in an era of heightened terrorism fears.

“It’s just a pipe bomb, right?” said Jack M. Balkin, a professor at Yale University’s law school. “That’s so Sept. 10. [Sept. 11] changed our perspective on what events like this mean.”

Balkin and other experts say there’s nothing in the 2001 Patriot Act -- or federal statutes that predate it -- that would preclude federal prosecution of bombing cases that don’t appear to have links to known terrorist networks.

“There’s nothing in the statute itself that limits it to Al Qaeda,” Balkin said. “It could apply to the bombing of abortion clinics, or to the Yale Law School, for that matter.”

Critics of the Patriot Act have focused on the expanded ability of federal authorities to use secret searches and other surveillance tools that could undermine civil liberties. Legal experts say the law could also have the same effect that federalization of drug laws had: creating a disparity in sentencing between state and federal courts and further burdening overcrowded federal prisons.

“Conceivably, any bomb that goes off could become a federal crime,” said USC law professor Erwin Chemerinsky. “We’re increasing the powers of the federal government in the law enforcement area, and we should be concerned about that.... There’s nothing showing that state law has failed us [in this area].”

Since its passage in 2001, the Patriot Act has rarely been used in cases such as the Orange County explosion. “I don’t even know that it’s been more than a handful of cases,” Justice Department spokesman Mark Corallo said.

Dennis Bauer, a go-between for local and federal agencies in his dual roles as senior Orange County district attorney and special assistant U.S. attorney, said this case will not establish a trend, nor will state powers be trumped or eroded.

“This doesn’t set a precedent,” Bauer said. “This is just the first time we had a case that fit the statute.”

Bauer said there were five state misdemeanors or felonies that could have been filed against Hai Duc Le, none of which carried a maximum sentence greater than seven years. Under the federal charges, he faces a minimum of 35 years.

While “weapons of mass destruction” has become shorthand for nuclear, chemical or biological weapons, a bomb with regular explosives qualifies under the Patriot Act, even though “it may be on the low end of WMD,” Bauer said.

Labeling such crimes as federal terrorist acts could have an effect beyond which court hears a case, said Douglas Kmiec, dean of the Catholic University of America’s School of Law in Washington, D.C.

“There’s a risk that you will dilute the terminology of what a terrorist act is,” he said. By “blurring the categories of these crimes, you can cause unnecessary alarm in the community. And you may also be applying the law in a way that Congress didn’t intend.”