United States v. Ali Ali

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 19, 2012 Decided June 11, 2013
No. 12-3056
UNITED STATES OF AMERICA,
APPELLANT
v.
ALI MOHAMED ALI, ALSO KNOWN AS AHMED ALI ADAN, ALSO
KNOWN AS ISMAIL ALI,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cr-00106-1)
David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellant. With him on the briefs were Ronald C.
Machen, Jr., U.S. Attorney, and Elizabeth Trosman, Brenda
J. Johnson, and Elizabeth Gabriel, Assistant U.S. Attorneys.
Peter S. Smith, Assistant U.S. Attorney, entered an
appearance.
Brian C. Brook argued the cause for appellee. With him
on the brief were Matthew J. Peed and Timothy R. Clinton.
Before: BROWN, Circuit Judge, and EDWARDS and
SILBERMAN, Senior Circuit Judges.
2
BROWN, Circuit Judge: Ali Mohamed Ali, a Somali
national, helped negotiate the ransom of a merchant vessel
and its crew after they were captured by marauders in the
Gulf of Aden. Though he claims merely to have defused a
tense situation, the government believes he was in cahoots
with these brigands from the very start. Ali eventually made
his way to the United States, where he was arrested and
indicted for conspiring to commit and aiding and abetting two
offenses: piracy on the high seas and hostage taking.
The government says Ali is a pirate; he protests that he is
not. Though a trial will determine whether he is in fact a
pirate, the question before us is whether the government’s
allegations are legally sufficient. And the answer to that
question is complicated by a factor the district court deemed
critical: Ali’s alleged involvement was limited to acts he
committed on land and in territorial waters—not upon the
high seas. Thus, the district court restricted the charge of
aiding and abetting piracy to his conduct on the high seas and
dismissed the charge of conspiracy to commit piracy.
Eventually, the district court also dismissed the hostage taking
charges, concluding that prosecuting him for his acts abroad
would violate his right to due process. On appeal, we affirm
dismissal of the charge of conspiracy to commit piracy. We
reverse, however, the district court’s dismissal of the hostage
taking charges, as well as its decision to limit the aiding and
abetting piracy charge.
I. BACKGROUND
A. Modern Piracy
Mention “pirates” to most Americans and you are more
likely to evoke Johnny Depp’s droll depiction of Captain Jack
Sparrow than concern about the international scourge of
3
piracy that long ago led most civilized states to declare such
marauders the enemy of all mankind. In unstable parts of the
world, piracy is serious business, and these troubled waters
have seen a resurgence in pirate attacks, both successful and
attempted. See, e.g., INT’L MAR. ORG., MSC.4/ CIRC.180,
REPORTS ON ACTS OF PIRACY AND ARMED ROBBERY AGAINST
SHIPS: ANNUAL REPORT – 2011, at 2 (2012); INT’L MAR.
ORG., MSC.4/CIRC.169, REPORTS ON ACTS OF PIRACY AND
ARMED ROBBERY AGAINST SHIPS: ANNUAL REPORT – 2010, at
2 (2011). Pirate attacks have become increasingly daring, as
well as commonplace, with pirates targeting large commercial
vessels in transit, hijacking these ships, and ransoming the
crews. See W. Michael Reisman & Bradley T. Tennis,
Combating Piracy in East Africa, 35 YALE J. INT’L. L.
ONLINE 14, 16–18 (2009). These predatory activities have
proven especially lucrative in the Gulf of Aden (situated
between the Arabian Peninsula and the Horn of Africa and
bounded by a long stretch of Somalia’s coast), where pirates
can exploit a key trade route undeterred by Somalia’s unstable
government. See Milena Sterio, The Somali Piracy Problem:
A Global Puzzle Necessitating A Global Solution, 59 AM. U.
L. REV. 1449, 1450–51 (2010).
B. Ali’s Offense and Prosecution 1
Ali is a member of Somalia’s Warsengeli clan, 2 which,
together with the Majertein clan, plotted the capture of the
1
The facts are undisputed for the purpose of this appeal, which
concerns only the legal sufficiency of the government’s case. See
United States v. Lattimore, 215 F.2d 847, 849, 851 (D.C. Cir.
1954).
2
According to a previous government filing, Ali’s origins are
not entirely certain, since he has represented himself on prior
occasions sometimes as a Somali national and at other times as a
4
CEC Future, a Danish-owned merchant ship that flew a
Bahamian flag and carried cargo owned by a U.S.
corporation. On November 7, 2008, while the CEC Future
was traveling in the Gulf of Aden on the “high seas”—i.e.,
outside any nation’s territorial waters, RESTATEMENT (THIRD)
OF FOREIGN RELATIONS LAW § 521 cmt. a (1987)—Ali’s
compatriots launched their attack. Wielding AK-47s and a
rocket-propelled grenade, the raiders fired warning shots,
boarded the ship, and seized the crew. They then forced
crewmembers at gunpoint to reroute the ship to Point Ras
Binna, off the coast of Somalia, where, on November 9, Ali
came aboard and assumed the role of interpreter. The ship
traveled that same day to Eyl, a Somali port, and remained at
anchor there until it was ransomed the following January.
Except for a brief period of “minutes” during which the
CEC Future entered the high seas, the ship traversed
exclusively territorial waters while Ali was aboard. Ali
promptly began negotiating with the owners of the CEC
Future, starting with an initial demand of $7 million for the
release of the ship, its crew, and its cargo. Discussions
continued into January 2009, when Ali and the CEC Future’s
owners agreed to a $1.7 million ransom. As payment for his
assistance, Ali also demanded $100,000 (a figure he later
reduced to $75,000) be placed in a personal bank account. On
January 14, the pirates received the agreed-upon $1.7 million,
and two days later Ali and his cohorts left the ship. Ali’s share
amounted to $16,500—one percent of the total ransom less
expenses. He later received his separate $75,000 payment via
wire transfer to the account he had previously specified.
Yemeni national. See Gov’t Mem. & Proffer Supp. Pretrial
Detention 5–6.
5
As it happens, “pirate hostage negotiator” is not the only
line on Ali’s resume. In June 2010, he was appointed Director
General of the Ministry of Education for the Republic of
Somaliland, a self-proclaimed sovereign state within Somalia.
United States v. Ali (“Ali I”), 870 F. Supp. 2d 10, 17 (D.D.C.
2012). When he received an email in March 2011 inviting
him to attend an education conference in Raleigh, North
Carolina, he agreed. Id. Little did he know it was all an
elaborate ruse. For some time, federal prosecutors had been
busy building a case against Ali, charging him via criminal
complaint and later obtaining a formal indictment. When Ali
landed at Dulles International Airport on April 20, 2011, to
attend the sham conference, he was promptly arrested. Id.A grand jury issued a four-count superseding indictment
against Ali, charging him first with conspiracy to commit
piracy under the law of nations, in violation of 18 U.S.C.
§ 371, which makes it a crime for “two or more persons” to
“conspire . . . to commit any offense against the United
States.” Invoking aiding and abetting liability under 18 U.S.C.
§ 2, Count Two charged Ali with committing piracy under the
law of nations, in violation of 18 U.S.C. § 1651, which
provides, “Whoever, on the high seas, commits the crime of
piracy as defined by the law of nations, and is afterwards
brought into or found in the United States, shall be
imprisoned for life.” Counts Three and Four analogously
charged Ali with conspiracy to commit hostage taking and
aiding and abetting hostage taking, in violation of 18 U.S.C.
§§ 1203 and 2. The hostage taking statute prescribes criminal
penalties for
whoever, whether inside or outside the United
States, seizes or detains and threatens to kill, to
injure, or to continue to detain another person
in order to compel a third person or a
6
governmental organization to do or abstain
from doing any act as an explicit or implicit
condition for the release of the person
detained, or attempts or conspires to do so.
Id. § 1203(a).
Ali filed a motion to dismiss the charges as legally
defective, meeting with partial success. See United States v.
Ali (“Ali II”), 885 F. Supp. 2d 17, 45–46 (D.D.C. 2012).
Beginning with the premise that the definition of piracy under
international law does not encompass conspiratorial liability,
the district court dismissed Count One in full, concluding
§ 1651, which defines piracy in terms of “the law of nations,”
could not ground a conspiracy charge. See id. at 33. The court
similarly refused to interpret § 371, the federal conspiracy
statute, as applying to piracy under the law of nations. So
read, the court said, the statute would contravene international
law in a way Congress never intended. See id. at 33–34. As
for Count Two, the court reasoned piracy under § 1651 and
international law only concerns acts committed on the high
seas and consequently limited Count Two to acts of aiding
and abetting Ali committed while he was on the high seas. See
id. at 32. Finally, the district court declined to dismiss Counts
Three and Four, ruling that Congress intended whatever
conflict exists between international law and extraterritorial
application of § 1203, id. at 35, and that prosecution for
extraterritorial acts of hostage taking satisfied the notice
requirements of due process because Ali’s piracy offenses
already subjected him to the universal jurisdiction of the
United States, id. at 44–45.
The district court reconsidered Counts Three and Four,
however, after learning that the government had no “specific
evidence” Ali had facilitated any acts of piracy while outside
7
territorial waters, and that the CEC Future proceeded on the
high seas only for a matter of minutes while Ali was aboard.
See United States v. Ali (“Ali III”), 885 F. Supp. 2d 55, 58
(D.D.C. 2012). Due process, the court said, is satisfied only if
Ali had some reasonable expectation he could be haled into an
American court. So long as the government could establish
that he had committed piracy on the high seas—a crime over
which all nations may exercise jurisdiction—this expectation
was met. But because Ali’s criminal conduct took place in
territorial waters, he had no notice his actions subjected him
to prosecution in the United States for hostage taking. Thus,
in light of the government’s revelation that it could not show
Ali’s offenses occurred on the high seas, due process
precluded exercising jurisdiction over Counts Three and Four.
Id. at 62.
The government now challenges the district court’s
dismissal of Counts One, Three, and Four, as well as
limitation of Count Two. We have jurisdiction over this
interlocutory appeal because the government challenges an
“order of a district court dismissing an indictment . . . as to
any one or more counts.” 18 U.S.C. § 3731.
II. THE PIRACY CHARGES
In most cases, the criminal law of the United States does
not reach crimes committed by foreign nationals in foreign
locations against foreign interests. Two judicial presumptions
promote this outcome. The first is the presumption against the
extraterritorial effect of statutes: “When a statute gives no
clear indication of an extraterritorial application, it has none.”
Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869, 2878
(2010). The second is the judicial presumption that “an act of
Congress ought never to be construed to violate the law of
nations if any other possible construction remains,” Murray v.
8
Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118
(1804)—the so-called Charming Betsy canon. Because
international law itself limits a state’s authority to apply its
laws beyond its borders, see RESTATEMENT (THIRD) OF
FOREIGN RELATIONS LAW §§ 402–03, Charming Betsy
operates alongside the presumption against extraterritorial
effect to check the exercise of U.S. criminal jurisdiction.
Neither presumption imposes a substantive limit on
Congress’s legislative authority, but they do constrain judicial
inquiry into a statute’s scope.
Piracy, however, is no ordinary offense. The federal
piracy statute clearly applies extraterritorially to “[w]hoever,
on the high seas, commits the crime of piracy as defined by
the law of nations,” even though that person is only
“afterwards brought into or found in the United States.” 18
U.S.C. § 1651. Likewise, through the principle of universal
jurisdiction, international law permits states to “define and
prescribe punishment for certain offenses recognized by the
community of nations as of universal concern.”
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 404;
see United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir.
1991). And of all such universal crimes, piracy is the oldest
and most widely acknowledged. See, e.g., Kenneth C.
Randall, Universal Jurisdiction Under International Law, 66
TEX. L. REV. 785, 791 (1988). “Because he commits
hostilities upon the subjects and property of any or all nations,
without any regard to right or duty, or any pretence of public
authority,” the pirate is “hostis humani generis,” United States
v. Brig Malek Adhel, 43 U.S. (2 How.) 210, 232 (1844)—in
other words, “an enemy of the human race,” United States v.
Smith, 18 (5 Wheat.) U.S. 153, 161 (1820). Thus, “all nations
[may punish] all persons, whether natives or foreigners, who
have committed this offence against any persons whatsoever,
with whom they are in amity.” Id. at 162.
9
Universal jurisdiction is not some idiosyncratic domestic
invention but a creature of international law. Unlike the
average criminal, a pirate may easily find himself before an
American court despite committing his offense on the other
side of the globe. Ali’s situation is a bit more complicated,
though. His indictment contains no straightforward charge of
piracy. Rather, the government accuses him of two inchoate
offenses relating to piracy: conspiracy to commit piracy and
aiding and abetting piracy.
On their face, both ancillary statutes apply generally and
without exception: § 2 to “[w]hoever . . . aids, abets, counsels,
commands, induces or procures” the commission of “an
offense against the United States,” 18 U.S.C. § 2(a) (emphasis
added), and § 371 to persons who “do any act to effect the
object of the conspiracy” to “commit any offense against the
United States,” 18 U.S.C. § 371 (emphasis added). But so
powerful is the presumption against extraterritorial effect that
even such generic language is insufficient rebuttal. See Small
v. United States, 544 U.S. 388 (2005). That leaves both
statutes ambiguous as to their application abroad, requiring us
to resort to interpretive canons to guide our analysis.
Given this ambiguity in the extraterritorial scope of the
two ancillary statutes, we consider whether applying them to
Ali’s actions is consistent with international law. Conducting
this Charming Betsy analysis requires parsing through
international treaties, employing interpretive canons, and
delving into drafting history. Likewise, because the two
ancillary statutes are “not so broad as to expand the
extraterritorial reach of the underlying statute,” United States
v. Yakou, 428 F.3d 241, 252 (D.C. Cir. 2005), we also
conduct a separate analysis to determine the precise contours
of § 1651’s extraterritorial scope. Ultimately, Ali’s assault on
10
his conspiracy charge prevails for the same reason the attack
on the aiding and abetting charge fails.
A. Aiding and Abetting Piracy
We begin with Ali’s charge of aiding and abetting piracy.
Aiding and abetting is a theory of criminal liability, not a
separate offense, United States v. Ginyard, 511 F.3d 203, 211
(D.C. Cir. 2008)—one that allows a defendant who “aids,
abets, counsels, commands, induces or procures” commission
of a crime to be punished as a principal, 18 U.S.C. § 2(a). “All
that is necessary is to show some affirmative participation
which at least encourages the principal offender to commit the
offense, with all its elements, as proscribed by the statute.”
United States v. Raper, 676 F.2d 841, 850 (D.C. Cir. 1982).
From Ali’s perspective, it is not enough that acts of piracy
were committed on the high seas and that he aided and
abetted them. Rather, he believes any acts of aiding and
abetting he committed must themselves have occurred in
extraterritorial waters and not merely supported the capture of
the CEC Future on the high seas.
Ali’s argument involves two distinct (though closely
related) inquiries. First, does the Charming Betsy canon pose
any obstacle to prosecuting Ali for aiding and abetting piracy?
For we assume, absent contrary indication, Congress intends
its enactments to comport with international law. Second, is
the presumption against extraterritoriality applicable to acts of
aiding and abetting piracy not committed on the high seas?
1. Piracy and the Charming Betsy Canon
Section 1651 criminalizes “the crime of piracy as defined
by the law of nations.” Correspondence between the domestic
and international definitions is essential to exercising
11
universal jurisdiction. Otherwise, invocation of the magic
word “piracy” would confer universal jurisdiction on a nation
and vest its actions with the authority of international law. See
Randall, supra, at 795. As a domestic matter, doing so may be
perfectly legal. But because Charming Betsy counsels against
interpreting federal statutes to contravene international law,
we must satisfy ourselves that prosecuting Ali for aiding and
abetting piracy would be consistent with the law of nations.
Though § 1651’s invocation of universal jurisdiction may
comport with international law, that does not tell us whether
§ 2’s broad aider and abettor liability covers conduct neither
within U.S. territory nor on the high seas. Resolving that
difficult question requires examining precisely what conduct
constitutes piracy under the law of nations. Luckily, defining
piracy is a fairly straightforward exercise. Despite not being a
signatory, the United States has recognized, via United
Nations Security Council resolution, that the U.N. Convention
on the Law of the Sea (“UNCLOS”) “sets out the legal
framework applicable to combating piracy and armed robbery
at sea.” S.C. Res. 2020, U.N. Doc. S/Res/2020, at 2 (Nov. 22,
2011); see United States v. Dire, 680 F.3d 446, 469 (4th Cir.
2012). According to UNCLOS:
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention,
or any act of depredation, committed for
private ends by the crew or the
passengers of a private ship . . . and
directed:
(i) on the high seas, against another
ship . . . or against persons or
property on board such ship . . . ;
12
(ii) against a ship, . . . persons or
property in a place outside the
jurisdiction of any State;
(b) any act of voluntary participation in the
operation of a ship . . . with knowledge
of facts making it a pirate ship . . . ;
(c) any act of inciting or of intentionally
facilitating an act described in
subparagraph (a) or (b).
UNCLOS, art. 101, Dec. 10, 1982, 1833 U.N.T.S. 397, 436.
By including “intentionally facilitating” a piratical act within
its definition of piracy, article 101(c) puts to rest any worry
that American notions of aider and abettor liability might fail
to respect the international understanding of piracy. 3 One
question remains: does international law require facilitative
acts take place on the high seas?
Explicit geographical limits—“on the high seas” and
“outside the jurisdiction of any state”—govern piratical acts
under article 101(a)(i) and (ii). Such language is absent,
however, in article 101(c), strongly suggesting a facilitative
act need not occur on the high seas so long as its predicate
offense has. Cf. Dean v. United States, 556 U.S. 568, 573
(2009) (“[W]here Congress includes particular language in
one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” (internal quotation marks omitted)). So far, so
good; Charming Betsy poses no problems.
3
As neither party draws support for its position from article
101(b), we need not opine on its meaning here.
13
Ali endeavors nonetheless to impute a “high seas”
requirement to article 101(c) by pointing to UNCLOS article
86, which states, “The provisions of this Part apply to all parts
of the sea that are not included in the exclusive economic
zone, in the territorial sea or in the internal waters of a State,
or in the archipelagic waters of an archipelagic State.” 1833
U.N.T.S. at 432. Though, at first glance, the language at issue
appears generally applicable, there are several problems with
Ali’s theory that article 86 imposes a strict high seas
requirement on all provisions in Part VII. For one thing, Ali’s
reading would result in numerous redundancies throughout
UNCLOS where, as in article 101(a)(i), the term “high seas”
is already used, and interpretations resulting in textual
surplusage are typically disfavored. Cf. Babbitt v. Sweet
Home Chapter of Communities for a Great Or., 515 U.S. 687,
698 (1995). Similarly, many of the provisions to which article
86 applies explicitly concern conduct outside the high seas.
See, e.g., UNCLOS, art. 92(1), 1833 U.N.T.S. at 433 (“A ship
may not change its flag during a voyage or while in a port of
call . . . .”); id. art. 100, 1833 U.N.T.S. at 436 (“All States
shall cooperate to the fullest possible extent in the repression
of piracy on the high seas or in any other place outside the
jurisdiction of any State.”). Ali’s expansive interpretation of
article 86 is simply not plausible.
What does article 86 mean, then, if it imposes no high
seas requirement on the other articles in Part VII of
UNCLOS? After all, “the canon against surplusage merely
favors that interpretation which avoids surplusage,” not the
construction substituting one instance of superfluous language
for another. Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034,
2043 (2012). We believe it is best understood as definitional,
explicating the term “high seas” for that portion of the treaty
most directly discussing such issues. Under this interpretation,
article 86 mirrors other prefatory provisions in UNCLOS. Part
14
II, for example, concerns “Territorial Sea and Contiguous
Zone” and so opens with article 2’s explanation of the legal
status of a State’s territorial sea. 1833 U.N.T.S. at 400. And
Part III, covering “Straits Used for International Navigation,”
begins with article 34’s clarification of the legal status of
straits used for international navigation. 1833 U.N.T.S. at 410.
Drawing guidance from these provisions, article 86 makes the
most sense as an introduction to Part VII, which is titled
“High Seas,” and not as a limit on jurisdictional scope. Cf.
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
133 (2000) (“It is a fundamental canon of statutory
construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory
scheme.” (internal quotation marks omitted)).
Thwarted by article 101’s text, Ali contends that even if
facilitative acts count as piracy, a nation’s universal
jurisdiction over piracy offenses is limited to high seas
conduct. In support of this claim, Ali invokes UNCLOS
article 105, which reads,
On the high seas, or in any other place outside
the jurisdiction of any State, every State may
seize a pirate ship or aircraft, or a ship or
aircraft taken by piracy and under the control
of pirates and arrest the persons and seize the
property on board. The courts of the State
which carried out the seizure may decide upon
the penalties to be imposed . . . .
1833 U.N.T.S. at 437. Ali understands article 105’s preface to
govern the actual enforcement of antipiracy law—and, by
extension, to restrict universal jurisdiction to the high seas—
even if the definition of piracy is more expansive. In fact, Ali
gets it backward. Rather than curtailing the categories of
15
persons who may be prosecuted as pirates, the provision’s
reference to the high seas highlights the broad authority of
nations to apprehend pirates even in international waters. His
reading also proves too much, leaving nations incapable of
prosecuting even those undisputed pirates they discover
within their own borders—a far cry from “universal”
jurisdiction. Article 105 is therefore no indication
international law limits the liability of aiders and abettors to
their conduct on the high seas.
Ali’s next effort to exclude his conduct from the
international definition of piracy eschews UNCLOS’s text in
favor of its drafting history—or, rather, its drafting history’s
drafting history. He points to UNCLOS’s origins in article 15
of the 1958 Geneva Convention on the High Seas, which
closely parallels the later treaty’s article 101. See Geneva
Convention on the High Seas, art. 15, Apr. 29, 1958, 13
U.S.T. 2312, 450 U.N.T.S. 82. Article 15 was based in large
part on a model convention compiled at Harvard Law School
by various legal scholars, see 2 ILC YEARBOOK 282 (1956),
who postulated that “[t]he act of instigation or facilitation is
not subjected to the common jurisdiction unless it takes place
outside territorial jurisdiction.” Joseph W. Bingham et al.,
Codification of International Law: Part IV: Piracy, 26 AM. J.
INT’L L. SUPP. 739, 822 (1932). Ali hopes this latter statement
is dispositive.
Effectively, Ali would have us ignore UNCLOS’s plain
meaning in favor of eighty-year-old scholarship that may have
influenced a treaty that includes language similar to UNCLOS
article 101. This is a bridge too far. Legislative history is an
imperfect enough guide when dealing with acts of Congress.
See Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J.,
concurring in the judgment) (“If one were to search for an
interpretive technique that, on the whole, was more likely to
16
confuse than to clarify, one could hardly find a more
promising candidate than legislative history.”). Ali’s
inferential chain compounds the flaws—and that even
assumes a single intent can be divined as easily from the
myriad foreign governments that ratified the agreement as
from a group of individual legislators. Even were it a more
feasible exercise, weighing the relevance of scholarly work
that indirectly inspired UNCLOS is not an avenue open to us.
Basic principles of treaty interpretation—both domestic and
international—direct courts to construe treaties based on their
text before resorting to extraneous materials. See United
States v. Alvarez-Machain, 504 U.S. 655, 663 (1992) (“In
construing a treaty, as in construing a statute, we first look to
its terms to determine its meaning.”); Vienna Convention on
the Law of Treaties, art. 32, May 23, 1969, 8 I.L.M. 679, 692,
1155 U.N.T.S. 331, 340. Because international law permits
prosecuting acts of aiding and abetting piracy committed
while not on the high seas, the Charming Betsy canon is no
constraint on the scope of Count Two.
2. Piracy and the Presumption Against Extraterritorial Effect
Ali next attempts to achieve through the presumption
against extraterritoriality what he cannot with Charming
Betsy. Generally, the extraterritorial reach of an ancillary
offense like aiding and abetting or conspiracy is coterminous
with that of the underlying criminal statute. Yakou, 428 F.3d
at 252. And when the underlying criminal statute’s
extraterritorial reach is unquestionable, the presumption is
rebutted with equal force for aiding and abetting. See United
States v. Hill, 279 F.3d 731, 739 (9th Cir. 2002) (“[A]iding
and abetting[] and conspiracy . . . have been deemed to confer
extraterritorial jurisdiction to the same extent as the offenses
that underlie them.”); see also Yunis, 924 F.2d at 1091(analyzing underlying offenses under extraterritoriality canon
17
but conducting no separate analysis with respect to conspiracy
conviction). Ali admits the piracy statute must have some
extraterritorial reach—after all, its very terms cover conduct
outside U.S. territory—but denies that the extraterritorial
scope extends to any conduct that was not itself perpetrated
on the high seas.
We note, as an initial matter, that proving a defendant
guilty of aiding and abetting does not ordinarily require the
government to establish “participation in each substantive and
jurisdictional element of the underlying offense.” United
States v. Garrett, 720 F.2d 705, 713 n.4 (D.C. Cir. 1983). A
defendant could, for example, aid and abet “travel[ing] in
foreign commerce[] for the purpose of engaging in any illicit
sexual conduct with another person,” 18 U.S.C. § 2423(b),
without himself crossing any international border. Cf. Raper,
676 F.2d at 850.
Ali’s argument appears to be more nuanced. Ali claims
the government seeks to use aider and abettor liability to
expand the extraterritorial scope of the piracy statute beyond
conduct on the high seas. Because § 1651 expressly targets
crimes committed on the high seas, he believes Congress
intended its extraterritorial effect—and, by extension, that of
the aiding and abetting statute—to extend to international
waters and no further. And, he claims, our opinion in United
States v. Yakou supports this proposition by deciding that a
foreign national who had renounced his legal permanent
resident status could not be prosecuted for aiding and abetting
under a statute applicable to “‘[a]ny U.S. person, wherever
located, and any foreign person located in the United States or
otherwise subject to the jurisdiction of the United States.’”
428 F.3d at 243 n.1 (quoting 22 C.F.R. § 129.3(a)). But this
language makes clear the intention to limit U.S. criminal
jurisdiction to certain categories of persons—a restriction
18
employing broad aider and abettor liability would have
frustrated. See 438 F.3d at 252. In other words, Yakou spoke
to the sort of defendant Congress had in mind, while § 1651’s
reference to the high seas, in contrast, describes a category of
conduct.
Thus, instead of thwarting some clearly expressed
Congressional purpose, extending aider and abettor liability to
those who facilitate such conduct furthers the goal of
deterring piracy on the high seas—even when the facilitator
stays close to shore. In fact, Yakou distinguished the offense
at issue there from those crimes—like piracy—in which “the
evil sought to be averted inherently relates to, and indeed
requires, persons in certain categories.” Id. In keeping with
that principle, § 1651’s high seas language refers to the very
feature of piracy that makes it such a threat: that it exists
outside the reach of any territorial authority, rendering it both
notoriously difficult to police and inimical to international
commerce. See Eugene Kontorovich, Implementing Sosa v.
Alvarez-Machain: What Piracy Reveals About the Limits of
the Alien Tort Statute, 80 NOTRE DAME L. REV. 111, 152–53
(2004). As UNCLOS § 101(c) recognizes, it is self-defeating
to prosecute those pirates desperate enough to do the dirty
work but immunize the planners, organizers, and negotiators
who remain ashore.
Nor does the Supreme Court’s recent decision in Kiobel
v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013),
change the equation. Reiterating that “[w]hen a statute
provides for some extraterritorial application, the presumption
against extraterritoriality operates to limit that provision to its
terms,’” the Court rejected the notion that “because Congress
surely intended the [Alien Tort Statute] to provide jurisdiction
for actions against pirates, it necessarily anticipated the statute
would apply to conduct occurring abroad.” Id. at 1667
19
(quoting Morrison, 130 S. Ct. at 2883). Ali contends that
§ 1651’s high seas requirement is similarly limiting, and that
the presumption against extraterritoriality remains intact as to
acts done elsewhere.
Even assuming Ali’s analogy to Kiobel is valid, 4 he
overlooks a crucial fact: § 1651’s high seas element is not the
only evidence of the statute’s extraterritorial reach, for the
statute references not only “the high seas” but also “the crime
of piracy as defined by the law of nations.” As explained
already, the law of nations specifically contemplates, within
its definition of piracy, facilitative acts undertaken from
within a nation’s territory. See supra Subsection II.A.1. By
defining piracy in terms of the law of nations, § 1651
incorporated this extraterritorial application of the
international law of piracy and indicates Congress’s intent to
subject extraterritorial acts like Ali’s to prosecution.
Why then does § 1651 mention the high seas at all if “the
law of nations,” which has its own high seas requirements, is
filling in the statute’s content? Simply put, doing so fits the
international definition of piracy—a concept that
encompasses both crimes on the high seas and the acts that
facilitate them—into the structure of U.S. criminal law. To be
convicted as a principal under § 1651 alone, one must commit
piratical acts on the high seas, just as UNCLOS article 101(a)
4
Kiobel and its predecessors stated that courts may not infer
that all applications or provisions in a statute have extraterritorial
effect just because some do. See, e.g., Morrison, 130 S. Ct. at 2883;
Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 455–56 (2007).
These cases do not suggest, as Ali argues, that a statute’s
application to a particular foreign region cannot rebut the
presumption against extraterritoriality as to other unspecified
places.
20
demands. But applying aider and abettor liability to the sorts
of facilitative acts proscribed by UNCLOS article 101(c)
requires using § 1651 and § 2 in tandem. That is not to say
§ 1651’s high seas requirement plays no role in prosecuting
Ali for aiding and abetting piracy, for the government must
prove someone committed piratical acts while on the high
seas. See Raper, 676 F.2d at 849. That is an element the
government must prove at trial, but not one it must show Ali
perpetrated personally. 5
Of course, § 1651’s high seas language could also be read
as Congress’s decision to narrow the scope of the
international definition of piracy to encompass only those
actions committed on the high seas. But Ali’s preferred
interpretation has some problems. Most damningly, to
understand § 1651 as a circumscription of the law of nations
would itself run afoul of Charming Betsy, requiring a
construction in conflict with international law. Ultimately, we
think it most prudent to read the statute the way it tells us to.
It is titled “[p]iracy under law of nations,” after all.
Like the Charming Betsy canon, the presumption against
extraterritorial effect does not constrain trying Ali for aiding
and abetting piracy. While the offense he aided and abetted
must have involved acts of piracy committed on the high seas,
his own criminal liability is not contingent on his having
facilitated these acts while in international waters himself.
B. Conspiracy To Commit Piracy
5
The “high seas” reference may also be Congress’s attempt to
expressly rebut the presumption against extraterritoriality as to
piracy. See Argentine Republic v. Amerada Hess Shipping Corp.,
488 U.S. 428, 440 (1989) (“When it desires to do so, Congress
knows how to place the high seas within the jurisdictional reach of
a statute.”).
21
Though the aiding and abetting statute reaches Ali’s
conduct, his conspiracy charge is another matter. In many
respects conspiracy and aiding and abetting are alike, which
would suggest the government’s ability to charge Ali with one
implies the ability to charge him with both. While conspiracy
is a “separate and distinct” offense in the United States,
Pinkerton v. United States, 328 U.S. 640, 643 (1946), it is
also a theory of liability like aiding and abetting; “[a]s long as
a substantive offense was done in furtherance of the
conspiracy, and was reasonably foreseeable as a necessary or
natural consequence of the unlawful agreement, then a
conspirator will be held vicariously liable for the offense
committed by his or her co-conspirators.” United States v.
Moore, 651 F.3d 30, 80 (D.C. Cir. 2011) (per curiam)
(internal quotation marks omitted).
Yet a crucial difference separates the two theories of
liability. Because § 371, like § 2, fails to offer concrete
evidence of its application abroad, we turn, pursuant to the
Charming Betsy canon, to international law to help us resolve
this ambiguity of meaning. Whereas UNCLOS, by including
facilitative acts within article 101’s definition of piracy,
endorses aider and abettor liability for pirates, the convention
is silent on conspiratorial liability. International law provides
for limited instances in which nations may prosecute the
crimes of foreign nationals committed abroad, and, in
invoking universal jurisdiction here, the government
predicates its prosecution of Ali on one of those theories. And
although neither side disputes the applicability of universal
jurisdiction to piracy as defined by the law of nations,
UNCLOS’s plain language does not include conspiracy to
commit piracy. See, e.g., Ved P. Nanda, Maritime Piracy:
How Can International Law and Policy Address This
Growing Global Menace?, 39 DENV. J. INT’L L. & POL’Y 177,
22
181 (2011) (“It should be noted that the [UNCLOS] definition
does not refer to either an attempt to commit an act of piracy
or to conspiracy relating to such an act, but it does include
voluntary participation or facilitation.”). The government
offers us no reason to believe otherwise, and at any rate, we
are mindful that “imposing liability on the basis of a violation
of ‘international law’ or the ‘law of nations’ or the ‘law of
war’ generally must be based on norms firmly grounded in
international law.” Hamdan v. United States, 696 F.3d 1238,
1250 n.10 (D.C. Cir. 2012) (emphasis added). International
law does not permit the government’s abortive use of
universal jurisdiction to charge Ali with conspiracy. Thus, the
Charming Betsy doctrine, which was no impediment to Ali’s
aider and abettor liability, cautions against his prosecution for
conspiracy.
The government hopes nonetheless to salvage its
argument through appeal to § 371’s text. Though courts
construe statutes, when possible, to accord with international
law, Congress has full license to enact laws that supersede it.
See Yunis, 924 F.2d at 1091. The government suggests
Congress intended to do precisely that in § 371, which
provides that “[i]f two or more persons conspire . . . to
commit any offense against the United States . . . and one or
more of such persons do any act to effect the object of the
conspiracy,” each is subject to criminal liability. Homing in
on the phrase “any offense against the United States,” the
government contends Congress intended the statute to apply
to all federal criminal statutes, even when the result conflicts
with international law. Yet, as we explained above, if we are
to interpret § 371 as supplanting international law, we need
stronger evidence than this. Indeed, the Supreme Court
recently rejected the notion that similar language of general
application successfully rebuts the presumption against
extraterritorial effect. See Kiobel, 133 S. Ct. at 1665 (“Nor
23
does the fact that the text reaches ‘any civil action’ suggest
application to torts committed abroad; it is well established
that generic terms like ‘any’ or ‘every’ do not rebut the
presumption against extraterritoriality.”).
Under international law, prosecuting Ali for conspiracy
to commit piracy would require the United States to have
universal jurisdiction over his offense. And such jurisdiction
would only exist if the underlying charge actually falls within
UNCLOS’s definition of piracy. Because conspiracy, unlike
aiding and abetting, is not part of that definition, and because
§ 371 falls short of expressly rejecting international law,
Charming Betsy precludes Ali’s prosecution for conspiracy to
commit piracy. The district court properly dismissed Count
One.
III. THE HOSTAGE TAKING CHARGES
The linguistic impediments that trouble Counts One and
Two do not beset the charges for hostage taking under 18
U.S.C. § 1203. The statute’s extraterritorial scope is as clear
as can be, prescribing punishments against “whoever, whether
inside or outside the United States, seizes or detains and
threatens to kill, to injure, or to continue to detain another
person in order to compel a third person or a governmental
organization to do or abstain from doing any act.” 18 U.S.C.
§ 1203(a). We also need not worry about Charming Betsy’s
implications, as § 1203 unambiguously criminalizes Ali’s
conduct. Section 1203 likely reflects international law
anyway, as it fulfills U.S. treaty obligations under the widely
supported International Convention Against the Taking of
Hostages, Dec. 17, 1979, 18 I.L.M. 1456, 1316 U.N.T.S. 205.
See United States v. Lin, 101 F.3d 760, 766 (D.C. Cir. 1996).
Nor, as in the case of the federal piracy statute, is there any
uncertainty as to the availability of conspiratorial liability,
24
since the statute applies equally to any person who “attempts
or conspires to” commit hostage taking. 18 U.S.C. § 1203(a).
Faced with this reality, Ali has adopted a different
strategy when it comes to Counts Three and Four, swapping
his statutory arguments for constitutional ones. He relies on
the principle embraced by many courts that the Fifth
Amendment’s guarantee of due process may impose limits on
a criminal law’s extraterritorial application even when
interpretive canons do not. Though this Circuit has yet to
speak definitively, see United States v. Delgado-Garcia, 374
F.3d 1337, 1341–43 (D.C. Cir. 2004) (explaining that, even if
prosecuting the appellants for their extraterritorial conduct
would deprive them of due process, the argument had been
waived through their unconditional guilty pleas), several other
circuits have reasoned that before a federal criminal statute is
given extraterritorial effect, due process requires “a sufficient
nexus between the defendant and the United States, so that
such application would not be arbitrary or fundamentally
unfair.” United States v. Davis, 905 F.2d 245, 248–49 (9th
Cir. 1990) (internal citation omitted); see United States v.
Brehm, 691 F.3d 547, 552 (4th Cir. 2012); United States v.
Ibarguen-Mosquera, 634 F.3d 1370, 1378–79 (11th Cir.
2011); United States v. Yousef, 327 F.3d 56, 111–12 (2d Cir.
2003) (per curiam); United States v. Cardales, 168 F.3d 548,
552–53 (1st Cir. 1999). 6 Others have approached the due
6
Some courts have suggested grouping these decisions into
two categories: those that “look for real effects or consequences
accruing in the United States before they find [a] nexus” and those
that “require only that extraterritorial prosecution be neither
arbitrary nor fundamentally unfair, and are not concerned with
whether a sufficient nexus exists.” United States v. Campbell, 798
F. Supp. 2d 293, 306–07 (D.D.C. 2011). The distinction may be
illusory, with the “nexus” inquiry serving more as a proxy for
whether a particular prosecution is unfair. See id. at 307. For
25
process issue in more cautious terms. See United States v.
Suerte, 291 F.3d 366, 375 (5th Cir. 2002) (assuming, without
deciding, the Due Process Clause constrains extraterritorial
reach in order to conclude no violation occurred); United
States v. Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir.
1993) (accord). Likewise, the principle is not without its
scholarly critics. See, e.g., Curtis A. Bradley, Universal
Jurisdiction and U.S. Law, 2001 U. CHI. LEGAL F. 323, 338
(“[I]t may be logically awkward for a defendant to rely on
what could be characterized as an extraterritorial application
of the U.S. Constitution in an effort to block the
extraterritorial application of U.S. law.”). We need not decide,
however, whether the Constitution limits the extraterritorial
exercise of federal criminal jurisdiction. Either way, Ali’s
prosecution under § 1203 safely satisfies the requirements
erected by the Fifth Amendment. 7
A. Due Process and Extraterritorial Conduct
In support of his due process argument, Ali cites a
panoply of cases concerning personal jurisdiction in the
context of civil suits. It is true courts have periodically
borrowed the language of personal jurisdiction in discussing
the due process constraints on extraterritoriality. But Ali’s
flawed analogies do not establish actual standards for judicial
present purposes, that question is purely academic, as Ali does not
tether his argument to a particular version of the due process
argument.
7
Ali has not cited—and we have not found—any case in
which extraterritorial application of a federal criminal statute was
actually deemed a due process violation. Although that does not
mean such a result is beyond the realm of possibility, it does
suggest Ali’s burden is a heavy one, for he traverses uncharted
territory.
26
inquiry; the law of personal jurisdiction is simply inapposite.
See United States v. Perez Oviedo, 281 F.3d 400, 403 (3d Cir.
2002). To the extent the nexus requirement serves as a proxy
for due process, it addresses the broader concern of ensuring
that “a United States court will assert jurisdiction only over a
defendant who should reasonably anticipate being haled into
court in this country.” United States v. Klimavicius-Viloria,
144 F.3d 1249, 1257 (9th Cir. 1998) (internal quotation marks
omitted). What appears to be the animating principle
governing the due process limits of extraterritorial jurisdiction
is the idea that “no man shall be held criminally responsible
for conduct which he could not reasonably understand to be
proscribed.” Bouie v. City of Columbia, 378 U.S. 347, 351
(1964) (internal quotation marks omitted). The “ultimate
question” is whether “application of the statute to the
defendant [would] be arbitrary or fundamentally unfair.”
United States v. Juda, 46 F.3d 961, 967 (9th Cir. 1995).
United States v. Shi, 525 F.3d 709 (9th Cir. 2008), is
most on point. Shi dealt with a due process challenge to the
defendant’s prosecution under 18 U.S.C. § 2280, which
implements the Convention for the Suppression of Unlawful
Acts Against the Safety of Maritime Navigation, Mar. 10,
1988, 27 I.L.M. 672, 1678 U.N.T.S. 222. See 525 F.3d at717–24. Because “the Maritime Safety Convention . . .
expressly provides foreign offenders with notice that their
conduct will be prosecuted by any state signatory,” due
process required no specific nexus between the defendant and
the United States. Id. at 723. In other words, the treaty at issue
in Shi did what the International Convention Against the
Taking of Hostages does here: provide global notice that
certain generally condemned acts are subject to prosecution
27
by any party to the treaty. 8 We agree with the Ninth Circuit
that the Due Process Clause demands no more.
That Ali’s Counts Three and Four concern hostage taking
and not piracy in the technical sense does nothing to alter
Shi’s logic. The Ninth Circuit did reason that “the acts with
which Shi is charged constitute acts of piracy” and
“[p]rosecuting piracy was the original rationale for creating
universal jurisdiction.” Id. Yet strictly speaking, Shi was not
charged with piracy but with the separate, albeit analogous,
offense of violence against maritime navigation. See 18
U.S.C. § 2280. And it is the “universal condemnation of the
offender’s conduct,” not some theory of universal jurisdiction,
that drove the Ninth Circuit’s reasoning. 525 F.3d at 723.
That is why the court also cited Martinez-Hidalgo, which
dealt with narcotics trafficking, see 993 F.2d at 1056—an
offense not generally understood to be subject to universal
jurisdiction, see RESTATEMENT (THIRD) OF FOREIGN
RELATIONS LAW § 404. By that standard, hostage taking is
also an offense whose proscription “is a result of universal
condemnation of those activities and general interest in
cooperating to suppress them, as reflected in widely-accepted
8
Interestingly, Shi even offers some insight into our own
Circuit’s precedent. Citing our opinion in United States v. Rezaq,
134 F.3d 1121 (D.C. Cir. 1998), the Ninth Circuit found
particularly relevant our decision to apply an aircraft hijacking
statute to the defendant “without noting any possible due process
concerns.” 525 F.3d at 724. Acknowledging that our silence “may
have stemmed from any number of reasons,” the court found it
“important to note that, like § 2280, the statute in Rezaq was
enacted to implement an international agreement to extradite and to
prosecute perpetrators of widely-condemned conduct.” Id. Rezaq is
not squarely analogous, however, since “hijacking of aircraft,” like
piracy, is a universal jurisdiction offense. See 134 F.3d at 1131;
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 404.
28
international agreements and resolutions of international
organizations.” Id. § 404 cmt. a. Regardless, Shi’s comparison
of § 2280 to piracy was an alternate holding, not a necessary
premise to its conclusion that a treaty may provide notice
sufficient to satisfy due process—a fact even Ali concedes.
See Appellee Br. 37.
Ali also complains that though China was a signatory to
the relevant international agreement in Shi, Somalia is not a
party to the International Convention Against the Taking of
Hostages, 9 meaning his home nation has not consented to
U.S. criminal jurisdiction over its hostage-taking nationals.
True, as a matter of international law, this case may not be so
obvious as those in which “the flag nation has consented to
the application of United States law to the defendants.”
United States v. Angulo-Hernández, 565 F.3d 2, 11 (1st Cir.
2009). But Ali mistakes the due process inquiry for the
customary international law of jurisdiction. “Whatever merit
[these] claims may have as a matter of international law, they
cannot prevail before this court. . . . Our duty is to enforce the
Constitution, laws, and treaties of the United States, not to
conform the law of the land to norms of customary
international law.” Yunis, 924 F.2d at 1091. Whatever due
process requires here, the Hostage Taking Convention
suffices by “expressly provid[ing] foreign offenders with
notice that their conduct will be prosecuted by any state
signatory.” Shi, 525 F.3d at 723. That is what Shi said. It did
not hold that due process depends on the participation of the
defendant’s nation in the agreement.
9
Somalia does not join most other nations in this regard. As of
May 28, 2013, the treaty has 39 signatories and 170 parties. See
United Nations Treaty Collection, International Convention Against
the Taking of Hostages, available at
http://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=XVIII-
5&chapter=18&lang=en.
29
Finally, Ali asserts that “[f]or non-citizens acting entirely
abroad, a jurisdictional nexus exists when the aim of that
activity is to cause harm inside the United States or to U.S.
citizens or interests.” United States v. Al Kassar, 660 F.3d
108, 118 (2d Cir. 2011). In Al Kassar, these interests were
present because “[t]he defendants’ conspiracy was to sell
arms to FARC with the understanding that they would be used
to kill Americans and destroy U.S. property.” Id. There is
good reason to believe that whatever “nexus” due process
might demand is not “jurisdictional” in the proper sense of the
term. See Delgado-Garcia, 374 F.3d at 1343 (“Appellants’ . .
. . assertion is a claim that the due process clause limits the
substantive reach of the conduct elements of 8 U.S.C.
§ 1324(a), not a claim that the court lacks the power to bring
them to court at all.”). But even assuming Al Kassar’s
characterization is right, the decision only tells us when such
2013) (“‘P ⊃ Q’ does not mean ‘¬P ⊃ ¬Q.’”). And in any
a nexus exists, not when it is absent. See New England Power
Generators Ass’n v. FERC, 707 F.3d 364, 370 n.3 (D.C. Cir.
event, this quote from Al Kassar cannot sustain the expansive
construction Ali accords it. Otherwise, the Fifth Amendment
would preclude prosecution even of universal jurisdiction
offenses like piracy.
Al Kassar also states, “Fair warning does not require that
the defendants understand that they could be subject to
criminal prosecution in the United States so long as they
would reasonably understand that their conduct was criminal
and would subject them to prosecution somewhere.” 660 F.3d
at 119. Other courts have made similar statements. See, e.g.,
Martinez-Hidalgo, 993 F.2d at 1056 (“Inasmuch as the
trafficking of narcotics is condemned universally by law-
abiding nations, we see no reason to conclude that it is
‘fundamentally unfair’ for Congress to provide for the
30
punishment of persons apprehended with narcotics on the
high seas.”). While Ali protests that the Second Circuit cannot
have meant what it said, the consequence of a literal reading
is not the limitless prosecutorial power he envisions. Given
presumptions like the Charming Betsy and extraterritoriality
canons, conduct abroad would only be subject to statutes with
clear foreign scope (like § 1203). In fact, since it is those
canons and not the Fifth Amendment that have thus far
restrained such prosecutorial abuse, Ali’s claim that the
government’s position somehow vitiates essential protections
seems dubious.
Lastly, we mention that the district court initially denied
dismissal of Counts Three and Four. See Ali II, 885 F. Supp.
2d at 45 (“Because the hostage taking charges allege the same
high-seas conduct for which Ali is lawfully subject to
prosecution for piracy, and in light of the notice that the
Hostage Taking Convention provides, the Court concludes
that there is nothing fundamentally unfair about Ali's
prosecution under § 1203.”). It was only once the district
court doubted the government’s ability to prove either piracy
count that it decided haling Ali into a U.S. court to answer
charges of hostage taking would violate due process. See Ali
III, 885 F. Supp. 2d at 61–62. Since we have reversed the
district court’s decision narrowing the scope of Count Two,
the logic of Ali II, which allowed Ali’s charges for hostage
taking to proceed, is once again applicable.
B. Miscellaneous Due Process Arguments
For his final salvo, Ali fires a barrage of “Special
Criminal Law Concerns” he claims are relevant to his right to
due process. We respond in kind:
31
• Ali laments the “lack of vicinage” between his alleged
crime and the legal forum set for his prosecution. See
United States v. Cores, 356 U.S. 405, 407 (1958) (“The
provision for trial in the vicinity of the crime is a
safeguard against the unfairness and hardship involved
when an accused is prosecuted in a remote place.”). But
Counts Three and Four introduce no unique detriment to
Ali’s defense beyond that already inherent to his piracy
prosecution. And the sweep of Ali’s argument is
overinclusive, as it would seemingly defeat all
extraterritorial applications of criminal statutes.
• Ali next targets the length of his pretrial detention. While
he is correct that excessive pretrial detention may in
certain circumstances deprive a defendant of his right to a
speedy trial, “courts must still engage in a difficult and
sensitive balancing process.” Barker v. Wingo, 407 U.S.
514, 533 (1972). Beyond stating the length of his
detention, Ali has offered no specifics on how his rights
have been violated or his defense prejudiced.
• Invoking double jeopardy norms, Ali contends his
susceptibility to future prosecution in, say, Denmark or
Somalia renders inappropriate his prosecution in the
United States. Though he acknowledges the Fifth
Amendment’s prohibition on double jeopardy does not
constrain prosecutions by separate sovereigns, see United
States v. Rashed, 234 F.3d 1280, 1282 (D.C. Cir. 2000),
he nonetheless tries to smuggle in the underlying principle
via the Due Process Clause. To invoke the principle of
double jeopardy in order to thwart a well-recognized
exception to the Double Jeopardy Clause is already
strange. Yet even more mystifying is his attempt to make
the point in the first forum to subject him to criminal
charges. It seems such an argument would be more
32
compelling in the next forum (if any) that opts to
prosecute him.
Along with these due process concerns, Ali discusses
principles of international comity. The issue, as well as its
import for due process, is addressed in cursory fashion. No
matter. An amorphous reference to international comity is no
basis for gainsaying the clearly expressed intention of the
United States, by both treaty and statute, to prosecute hostage
takers for their offenses abroad.
IV. CONCLUSION
We affirm the district court’s dismissal of Count One.
We reverse the district court’s narrowing of the scope of
Count Two to acts Ali performed while on the high seas and
reverse dismissal of Counts Three and Four.
So ordered.