United States v. Al-Imam

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
MUSTAFA MUHAMMAD MUFTA AL- Case No. 17-cr-213 (CRC)
IMAM,
Defendant.
MEMORANDUM OPINION
On September 11 and 12, 2012, a group of Libyan militants attacked U.S. diplomatic and
intelligence facilities in Benghazi, Libya. Four Americans died in the attacks, including then-
United States Ambassador to Libya J. Christopher Stevens. The United States alleges, in a
seventeen-count superseding indictment, that Defendant Mustafa Muhammad Mufta Al-Imam
participated in the attacks. Al-Imam has moved to dismiss all but one of the counts. He
contends that most of the statutes under which he is charged do not apply to conduct undertaken
outside of the United States; that he cannot be prosecuted for eleven of the counts because his
capture violated international law; and that six counts must be dismissed because the offenses
charged apply only to legally operated federal facilities, which he says excludes the facilities
here.
Save for the illegal capture argument, the Court has previously considered and rejected
each of Al-Imam’s challenges in ruling on a motion to dismiss brought by one of his purported
co-conspirators, Ahmed Abu Khatallah, who was convicted in November 2017 of three of the
offenses with which Al-Imam is also charged. See Judgment, United States v. Ahmed Abu
Khatallah, 14-cr-141, ECF No. 547. Recognizing this obstacle to dismissal, Al-Imam urges the
Court to reconsider its prior analysis, particularly with respect to his extraterritorial challenge.
But the Court finds no reason to depart from its conclusion in Abu Khatallah. It also finds Al-
Imam’s capture argument unavailing. Accordingly, and for the reasons that follow, the Court
will deny Al-Imam’s motion to dismiss with respect to all counts.
I. Background
Muammar Gaddafi seized power in Libya in 1969 and remained its leader until 2011,
when a civil war broke out. Indictment ¶ 2. The war erupted in the Libyan coastal city of
Benghazi, which was controlled by rebels and served as the base of operations for the rebel-led
Transitional National Council (“TNC”). Id. On February 25, 2011, the U.S. Department of State
evacuated American personnel from Libya and suspended its operations at the U.S. Embassy in
Tripoli. Id. ¶ 3. Less than two months later, in April 2011, the State Department reestablished
its presence in the country with the arrival in Benghazi of U.S. Special Envoy J. Christopher
Stevens. Id. ¶ 4.
On July 15, 2011, the United States officially recognized the TNC as Libya’s governing
authority. Id. One month later, Gaddafi was ousted from power and killed. Id. In November
2011, the United States established a diplomatic outpost in Benghazi, known as the U.S. Special
Mission (“Mission”), where a contingent of State Department personnel were stationed. Id. ¶ 5.
The United States established a second Benghazi facility, this one known as the Annex, where
additional U.S. personnel were based. Id. ¶ 6.
In May 2012, the United States dispatched Stevens, now the U.S. Ambassador to Libya,
to the Libyan capital of Tripoli. Id. ¶ 7. Ambassador Stevens traveled to Benghazi to visit the
Mission compound on September 10, 2012. Id. Stationed at the compound and present during
the Ambassador’s visit were Information Management Officer Sean Patrick Smith; Assistant
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Regional Security Officers Scott Wickland and David Ubben; and Security Officers Tyrone
Snowden Woods, Glen Anthony Doherty, and Mark Geist. See id. ¶¶ 13-18.
Around 9:45 p.m. on September 11, 2012, approximately twenty men—armed with
assault rifles, handguns, and rocket-propelled grenade launchers—attacked the Mission. Id. ¶ 22.
After breaching the facility, the attackers set fire to several buildings, causing the deaths of
Ambassador Stevens and Sean Smith. Id. The remaining State Department personnel escaped to
the Annex, which soon also came under attack, ending in mortar fire that killed Tyrone Woods
and Glen Doherty. Id.
Al-Imam was captured in Libya on or about October 29, 2017, during an operation by
U.S. armed forces personnel. He was thereafter transported to the District of Columbia to stand
trial. A federal grand jury on October 25, 2018 returned a seventeen-count superseding
indictment. According to the indictment, the Mission and Annex attacks were carried out, at
least in part, by members of the extremist group Ubaydah Ibn Al Jarrah (“UBJ”), whose
commander was Abu Khatallah. Indictment ¶ 9. The government alleges that Al-Imam was a
close associate of Abu Khatallah and was present for, helped orchestrate, and participated in the
attacks. Id. ¶¶ 9-11. According to the indictment, Al-Imam entered the Mission at the direction
of Abu Khatallah and took sensitive material, including material that identified the Annex by
location and as the evacuation point for Department of State personnel. Id. ¶ 22; Opposition
Mot. Dismiss (“Opp.”) at 3. Al-Imam then assembled with Abu Khatallah and others to
coordinate the attack on the Annex. Id.
The specific charges against Al-Imam are as follows: Count One – Conspiracy to
Provide Material Support and Resources to Terrorists Resulting in Death, in violation of 18
U.S.C. § 2339A; Count Two – Providing Material Support and Resources to Terrorists Resulting
3
in Death, in violation of 18 U.S.C. §§ 2339A and 2; Count Three – Killing of an Internationally
Protected Person (Ambassador Stevens), in violation of 18 U.S.C. §§ 1116, 1111 and 2; Counts
Four through Six – three counts of Killing Officers and Employees of the United States (Smith,
Woods, and Doherty), in violation of 18 U.S.C. §§ 1114, 1111 and 2; Counts Seven through Nine
– two counts of Attempting to Kill Officers and Employees of the United States (Wickland,
Ubben, and Geist), in violation of 18 U.S.C. §§ 1114, 1113 and 2; Counts Ten through Thirteen
– four counts (one for each victim) of Killing a Person in the Course of an Attack on a Federal
Facility Involving the Use of a Firearm or a Dangerous Weapon, in violation of 18 U.S.C.
§§ 930(c), 1111 and 2; Counts Fourteen and Fifteen – two counts (one for each facility attacked)
of Maliciously Damaging and Destroying U.S. Property by Means of Fire and an Explosive
Causing Death, in violation of 18 U.S.C. §§ 844(f)(1) and (3) and 2; and Counts Sixteen and
Seventeen – two counts (one for each facility attacked) of Willfully and Maliciously Destroying
Property within the Special Maritime and Territorial Jurisdiction of the United States and Placing
Lives in Jeopardy, in violation of 18 U.S.C. §§ 1363, 7 and 2.
Al-Imam moves to dismiss all but one count, arguing that most of the statutes under
which he is charged do not apply extraterritorially, that his capture violated international law
such that prosecution on some of the counts is precluded, and that the Mission and Annex
facilities were not legally-operated federal facilities and thus fall outside the protection of federal
law. The government opposes Al-Imam’s motion. The Court held a hearing on the motion on
February 15, 2019, and the issues are now ripe for the Court’s resolution.
II. Legal Standard
A criminal defendant “may raise by pretrial motion any defense, objection, or request that
the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). Pretrial
4
motions may challenge “a defect in the indictment or information,” as long as “the basis for the
motion is then reasonably available and the motion can be determined without a trial on the
merits.” Fed. R. Crim. P. 12(b)(3)(B). “‘Because a court’s use[] [of] its supervisory power to
dismiss an indictment . . . directly encroaches upon the fundamental role of the grand jury,’
dismissal is granted only in unusual circumstances.” United States v. Ballestas, 795 F.3d 138,
148 (D.C. Cir. 2015) (quoting Whitehouse v. U.S. Dist. Court, 53 F.3d 1349, 1360 (1st Cir.
1995)). An indictment “only need contain ‘a plain, concise, and definite written statement of the
essential facts constituting the offense charged,’” id. at 149, in order “to inform the defendant of
the nature of the accusation against him,” id. at 148–49 (quoting United States v. Hitt, 249 F.3d
1010, 1016 (D.C. Cir. 2001)) (internal quotation marks omitted). “When considering a motion to
dismiss an indictment, a court assumes the truth of those factual allegations.” Id. at 149.
III. Analysis
The Court begins with Al-Imam’s contention that the federal laws he stands charged with
violating do not apply extraterritorially, first recounting its analysis of the arguments in Abu
Khatallah, which the parties repeat here, before moving to Al-Imam’s critique that the Court’s
prior reasoning went astray. The Court will then tackle Al-Imam’s arguments that his capture
precludes the prosecution of certain counts, and that the purportedly unlawful operation of the
Benghazi facilities bars the prosecution of other counts.
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A. The Extraterritoriality of the Offenses Charged in Counts 1-2 and 4-171
Al-Imam advances extraterritoriality arguments identical to those considered and rejected
by this Court in Abu Khatallah. Compare MTD at 11-25 with Mot. Dismiss for Lack of
Extraterritorial Jurisdiction (ECF No. 91) at 4-21, United States v. Abu Khatallah, 14-cr-141.
The government, for its part, responds just as it did in Abu Khatallah. Compare Opp. at 20-34
with Opp. Mot. Dismiss for Lack of Extraterritorial Jurisdiction, ECF No. 101, at 7-24, United
States v. Abu Khatallah, 14-cr-141. Indeed, as both parties acknowledge, their submissions on
these Counts are near-verbatim reproductions of the submissions in Abu Khatallah.2 Therefore,
the Court reproduces its Abu Khatallah analysis here, though modified to address Al-Imam
rather than Abu Khatallah and to exclude arguments appearing in Abu Khatallah’s reply
memorandum that Al-Imam does not advance here. 151 F. Supp. 3d at 123-38; United States v.
Abu Khatallah, 168 F. Supp. 3d 210, 214 (D.D.C. 2016) (addressing § 1363 counts after
supplemental briefing).
1. Generally Applicable Principles of Extraterritoriality
The Supreme Court has repeatedly—and quite recently—insisted that “[w]hen a statute
gives no clear indication of an extraterritorial application, it has none.” Kiobel v. Royal Dutch
Petroleum Co., 133 S. Ct. 1659, 1664 (2013) (quoting Morrison v. Nat’l Australia Bank Ltd.,
130 S. Ct. 2869, 2878 (2010)). Phrased slightly differently, “there must be present the
1
Al-Imam also replicates Abu Khatallah’s argument against a “Count 18,” in violation of
18 U.S.C. § 924(c), but only Abu Khatallah—not Al-Imam—was charged with a violation of
§ 924(c). There is no Count 18 in the indictment in this case.
2
Some of the arguments in Al-Imam’s reply vary from Abu Khatallah’s, but they are
contingent on the Court answering his call to revise the extraterritoriality standard set forth in
Abu Khatallah. Because the Court rejects Al-Imam’s invitation to do so, it need not reach his
arguments respecting each individual statute under his favored rubric.
6
affirmative intention of the Congress clearly expressed.” Id. (quoting Benz v. Compania
Naviera Hidalgo, 353 U.S. 138, 147 (1957)). “[C]ongressional silence” on extraterritoriality
therefore “means no extraterritorial application,” Morrison, 130 S. Ct. at 2881, as does a merely
“plausible” showing of intended extraterritorial application, EEOC v. Arabian American Oil Co.,
499 U.S. 244, 250 (1991) (“Aramco”). Phrases like “clear indication” and “convincing
indication,” Small v. United States, 544 U.S. 385, 391 (2005), suggest that the required quantum
of proof is significantly more than a preponderance. And the burden of making the necessary
affirmative showing is on the party seeking to apply a statute extraterritorially. Aramco, 499
U.S. at 250. Importantly, the Supreme Court has instructed courts to “apply the presumption in
all cases” in which an extraterritorial offense is alleged. Morrison, 130 S. Ct. at 2881 (emphasis
added).
The presumption against extraterritoriality is a “canon of construction . . . rather than a
limit upon Congress’s power to legislate.” Morrison, 130 S. Ct. at 2877. The canon rests on a
defeasible assumption about congressional intent—that “Congress ordinarily legislates with
respect to domestic, not foreign matters.” Id. This assumption may or may not be factually
correct in individual cases. But the presumption is meant to relieve judges from having to
“guess anew in each case” by “divining what Congress would have wanted if it had thought of
the situation before the court.” Id. at 2881. Congress is on notice that courts apply the
presumption across the board, which ensures a “stable background against which Congress can
legislate with predictable effects.” Id. Regardless of what Congress actually intends, the
predictable effect of not clearly authorizing extraterritorial application will be no extraterritorial
application. Of course, Congress remains free to modify statutes that courts have construed not
to apply abroad (as it has done before). Id. at 2883 n.8.
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Aside from administrability and predictability concerns, the presumption against
extraterritoriality is also rooted in ideas of institutional competence and the separation of powers.
Its robust application “protect[s] against unintended clashes between our laws and those of other
nations which could result in international discord.” Kiobel, 133 S. Ct. at 1664 (quoting
Aramco, 499 U.S. at 248). Displacement of the presumption means that aliens can be sued (or
prosecuted) and tried in American courts for acts committed in their home countries, even if
their acts were perfectly lawful there. The political branches alone are equipped to make “such
an important policy decision where the possibilities of international discord are so evident.” Id.
(quoting Benz, 353 U.S. at 147). The presumption against extraterritoriality therefore precludes
judges from inferentially triggering such “significant foreign policy implications” in the absence
of deliberate congressional choice. Id. at 1665. But whether this concern permeates any
individual case is irrelevant: The “presumption applies regardless of whether there is a risk of
conflict between the American statute and a foreign law.” Morrison, 130 S. Ct. at 2877–78.
So strong is the presumption, the Supreme Court has said, that geographically unbounded
terms like “every” and “any” fail to rebut it. Kiobel, 133 S. Ct. at 1665; Small, 544 U.S. at 388;
Foley Bros. v. Filardo, 336 U.S. 281, 287 (1949). Even statutory definitions of commerce that
specifically refer to “foreign commerce” do not “definitely disclose an intention to give . . .
extraterritorial effect.” Aramco, 499 U.S. at 251. Perhaps most strikingly, Kiobel very recently
held that the Alien Tort Statute (“ATS”) “does not imply extraterritorial reach” even though it
permits actions by “alien[s]” for “violation[s] of the law of nations.” Kiobel, 133 S. Ct. at 1663,
1665. That was true even though one such violation (piracy) “typically occurs . . . beyond the
territorial jurisdiction of the United States.” Id. at 1667. The two other paradigmatic law-of
nations violations contemplated by the ATS—“violation of safe conducts” and “infringement of
8
the rights of ambassadors,” id. at 1666—could easily occur abroad and are creatures of
international relations. Yet they, too, fail to displace the presumption against extraterritoriality.
Id.
The Supreme Court has slightly diluted the presumption’s potency by conceding that it
is “not . . . a ‘clear statement rule.’” Morrison, 130 S. Ct. at 2883. A statute need not say “this
law applies abroad”; “[a]ssuredly context can be consulted as well.” Id.; see also Small, 544
U.S. at 391 (recognizing “statutory language, context, history, or purpose” as proper tools for
rebutting the presumption); Foley, 336 U.S. at 286 (concluding that a statute’s legislative history
revealed a “concern with domestic labor conditions”). Any indication of congressional intent is
very likely material, regardless of its source. Yet context, purpose, legislative history, and
statutory structure are unavailing unless they amount to a “clear indication” of intended
extraterritoriality. Kiobel, 133 S. Ct. at 1664. According to the Supreme Court, this sometimes-
multifaceted inquiry is neither “complex” nor “unpredictable in application.” Morrison, 130 S.
Ct. at 2878. And the D.C. Circuit very recently explained that contextual evidence tending to
displace the presumption must be traceable to the statutory text. See Validus Reinsurance, Ltd.
v. United States, 786 F.3d 1039, 1047 (D.C. Cir. 2015) (“[C]ourts must find clear and
independent textual support—rather than relying on mere inference—to justify the nature and
extent of each statutory application abroad.”) (quoting Keller Found./Case Found. v. Tracy, 696
F.3d 835, 845 (9th Cir. 2012)).
2. Harmonizing the Apparent Civil/Criminal Divide
As detailed above, the modern Supreme Court has instructed lower courts to apply the
presumption “in all cases.” Morrison, 130 S. Ct. at 2881. Such insistence on across-the-board
uniformity seems to foreclose doctrinal tests that would allow the presumption to be more easily
9
rebutted in certain kinds of cases. Nonetheless, a nearly century-old chestnut of
extraterritoriality doctrine—United States v. Bowman, 260 U.S. 94 (1922)—sits uneasily with
Aramco, Morrison, and Kiobel. In practice, Bowman requires a lesser evidentiary showing of
congressional intent to permit the extraterritorial application of certain kinds of federal criminal
statutes. Its application may well require judges to “guess anew in each case,” Morrison, 130 S.
Ct. at 2881, often under a shroud of empirical uncertainty. Yet the Supreme Court has not yet
attempted to reconcile the stability-serving values undergirding recent civil decisions like
Morrison and Kiobel with the reality that Bowman is “not easy to administer.” Id. at 2879.
Because Bowman remains binding on the lower courts, this Court must assume that satisfying
Bowman is one way of “clear[ly] indicati[ng]” a federal statute’s extraterritorial reach, id. at
2878—even if Bowman itself requires no “affirmative” evidence of a deliberate congressional
decision to permit overseas applications. Kiobel, 133 S. Ct. at 1664.
a. The Facts and Holding of United States v. Bowman
The defendants in Bowman had allegedly conspired to defraud the Emergency Fleet
Corporation—all of whose stock was owned by the United States—on board a ship approaching
Brazil. Bowman, 260 U.S. at 95. The crux of the indictment was that the defendants had made
(and conspired to make) a “false or fraudulent claim” against a “corporation in which the United
States of America is a stockholder.” Id. at 96, 100 n.1. Neither party disputed that all relevant
actions had occurred outside American soil. If Bowman had never been decided, faithful
application of recent Supreme Court precedents might well dictate a finding of no
extraterritoriality on these facts alone. For the mere statutory reference to “any corporation in
which the United States of America is a stockholder,” id. at 100 n.6, would not rebut the
presumption any more than statutory language encompassing “every contract,” “any court,” “any
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person,” or “any civil action.” Foley Bros., 336 U.S. at 287; Small, 544 U.S. at 387; Morrison,
130 S. Ct. at 2881; Kiobel, 133 S. Ct. at 1665.
The Bowman Court took a starkly different approach, however. It began its analysis by
observing that “the necessary locus [of proscribed activity], when not specially defined, depends
upon the purpose of Congress as evinced by the description and nature of the crime.” Id. at 97.
Bowman postulated two broad types of crimes for these purposes. First were “[c]rimes against
private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson,
embezzlement and frauds of all kinds.” Id. at 98. These offenses principally “affect the peace
and good order of the community,” and so must seemingly be committed within the political
community that they disturb. Id. If Congress intends to punish such crimes extraterritorially, “it
is natural for [it] to say so in the statute, and failure to do so will negative the purpose of
Congress in this regard.” Id.
But a different rule of construction applies to “criminal statutes which are, as a class, not
logically dependent on their locality for the Government’s jurisdiction, but are enacted because
of the right of the Government to defend itself against obstruction, or fraud wherever
perpetrated.” Id. For these offenses, “to limit their locus to the strictly territorial jurisdiction
would be greatly to curtail the scope and usefulness of the statute and leave open a large
immunity for frauds as easily committed by citizens on the high seas and in foreign countries as
at home.” Id. Congress “has not thought it necessary” to explicitly enable their overseas
application, instead “allow[ing] it to be inferred from the nature of the offense.” Id.
The Bowman Court held that the charged crime fell comfortably within this second
category. The statute had been amended in 1918 to encompass false claims harmful to
corporations in which the United States owned stock. Id. at 101. The Court found that this
11
provision “was evidently intended to protect the Emergency Fleet Corporation,” which was
“expected to engage in, and did engage in, a most extensive ocean transportation business” that
serviced “every great port of the world open during [World War I].” Id. at 101–02. Two key
factors informed the Court’s decision: that Congress had sought to stifle “frauds upon the
Government,” and—because of background assumptions about the Emergency Fleet
Corporation’s worldwide business—that those frauds were likely to occur “on the high seas and
in foreign ports and beyond the land jurisdiction of the United States.” Id.
Bowman also supplemented its holding (if only in dictum) with a list of six other federal
crimes whose nature commanded an inference of extraterritorial application. Because Bowman
has been entirely absent from the Supreme Court’s modern extraterritoriality decisions, these six
crimes are important data points for understanding Bowman’s underlying rationale. The Court
noted that all six appeared in a chapter of the U.S. Code entitled “Offenses against the operations
of the Government,” id. at 98–99; each crime had evidently been designed to forestall some
tangible or intangible harm to the U.S. Government. In asserting that each of the following
offenses would apply extraterritoriality, the Court also commented on the statutes’ anticipated
geographic reach:
(1) A consul’s knowingly certifying a false invoice. “Clearly the locus of this crime
as intended by Congress is in a foreign country . . . .” Id. at 99.
(2) Forging or altering a ship’s papers. “The natural inference from the character of
the offense is that the sea would be a probable place for its commission.” Id.
(3) Enticing desertions from the naval service. Congress must have “intend[ed] by
this to include such enticing done aboard ship on the high seas or in a foreign
port, where it would be most likely to be done.” Id.
(4) Bribing an officer of the U.S. civil, military, or naval service to violate his duty or
to aid in committing a fraud on the United States. The Court concluded that it
would “hardly [be] reasonable to construe this not to include offenses” directed at
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consuls, ambassadors, and military officers “in a foreign country or on the high
seas.” Id.
(5) Defrauding the United States in the disposition of property captured as prize.
“This would naturally often occur at sea, and Congress could not have meant to
confine it to the land of the United States.” Id.
(6) Stealing or embezzling property of the United States furnished or intended to be
used for military or naval service. “It would hardly be reasonable to hold that”
Congress did not intend to punish offenses against U.S. military property located
“in foreign countries, in foreign ports or on the high seas.” Id. at 100.
In sum, for statutes whose geographic reach is ambiguous, satisfying Bowman first
requires proof that a criminal offense directly harms the U.S. Government. Bowman also
suggested that the presumption against extraterritoriality cannot be rebutted inferentially unless
the enacting Congress very likely envisioned, and can be assumed to have authorized, a
considerable number of extraterritorial applications. Yet whether Bowman’s preconditions are
satisfied is hardly a mechanical inquiry. Bowman left open the key question of how many
foreseeable extraterritorial applications are necessary to warrant the inference that Congress
“clearly” intended to allow prosecutions for acts occurring overseas. Its treatment of two
statutory examples suggested that the number of expected extraterritorial offenses must outweigh
domestic ones—that the former must be “probable” or “most likely.” Id. at 99. But Bowman’s
fifth example pointed toward a looser “locus” test for extraterritoriality—that the crime “would
naturally often occur” abroad. Id. The D.C. Circuit’s resolution of this issue in favor of the
latter formulation must guide this Court’s analysis of Al-Imam’s extraterritoriality challenges.
b. The D.C. Circuit’s Application of Bowman: United States v. Delgado-
Garcia
Along with other lower courts, the D.C. Circuit has sought to reconcile modern
extraterritoriality doctrine’s across-the-board, rule-like rigor with the more flexible and
individualized inquiry required in criminal cases by Bowman. Its reading of Bowman precludes
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two possible approaches to this case: (1) to proceed as if the Supreme Court has overruled
Bowman sub silentio and apply only the restrictive test outlined in Aramco, Morrison, and
Kiobel; or (2) to assume that federal crimes designed to prevent harm to the U.S. Government
necessarily satisfy Bowman (and so apply extraterritorially) absent a clear indication to the
contrary.
The defendants in United States v. Delgado-Garcia, 374 F.3d 1337, 1339 (D.C. Cir.
2004), were charged with (in the court’s words) “conspiring to induce aliens illegally to enter the
United States” and “attempting to bring illegal aliens into the United States,” in violation of 8
U.S.C. § 1324(a). All relevant conduct occurred outside the United States. Id. The defendants
moved to dismiss the indictment, claiming that § 1324(a) does not apply extraterritorially
because the statute is silent on its geographic reach. The Delgado-Garcia court disagreed, citing
“specific textual evidence” and “contextual factors” as affirmative evidence that Congress
intended for § 1324(a) offenses to be prosecutable regardless of where they might occur. Id. at
1344–45. The court situated its analysis firmly within the framework established by Bowman,
deeming it a “persuasive precedent” for the Government’s position. See id. at 1346.
According to Delgado-Garcia, the generally worded statute at issue in Bowman applied
abroad “because the Emergency Fleet Corporation . . . ‘was expected to engage in, and did
engage in, a most extensive ocean transportation business.’” Delgado-Garcia, 374 F.3d at 1346
(emphasis added); see also id. (“Because of this expectation, the Court reasoned, many persons
who commit the crime of defrauding a U.S. corporation would do so overseas, and therefore the
statute had extraterritorial application.” (emphasis added)).
The Government’s reading of Bowman echoes Judge Rogers’s dissenting opinion in
Delgado-Garcia. She understood Bowman to mean that when Congress “protect[s] the United
14
States government from harm,” it generally must be assumed to have done so “irrespective of
[the harm’s] origin.” Id. at 1355 (Rogers, J., dissenting). For such crimes, in other words, “it is
obvious that in declaring them to be crimes Congress intends to prohibit them everywhere.” Id.
at 1354. The majority rejected this line of reasoning, concluding that it “is for Congress, not this
Court,” to decide whether particular acts would “harm the United States government even if
[they were] completed abroad.” Id. at 1346 (majority opinion) (alteration in original) (quoting
id. at 1355 (Rogers, J., dissenting)).3 The Delgado-Garcia majority offered a different
explanation of what it means for federal criminal offenses to be “not logically dependent on their
locality”—that they “have many obvious extraterritorial applications.” Id. at 1346–47.
Delgado-Garcia held that both § 1324(a) crimes charged in the indictment met this
standard (and thus applied extraterritorially). After explaining that the statute satisfied
Bowman’s “harm” prong because it sought to protect the integrity of U.S. borders, id. at 1345,4
the court shifted to a lengthy discussion of Bowman’s “locus” element. Reasoning purely from
the text and structure of § 1324(a), the court found that the crimes of attempting to bring an
unauthorized alien into the United States and conspiring to encourage or induce illegal
immigration both “applie[d] to much extraterritorial conduct.” Id. at 1347. First, because
“[b]ringing’ someone suggests . . . physical proximity” to the person sought to be brought,
3
The Court thus rejects the Government’s gloss on Bowman—that a federal criminal law applies
abroad whenever “the statute’s purpose would be undermined were its scope confined to the
United States’ territorial boundaries.” Opp. Mot. Dismiss (“Opp.”), ECF No. 53, at 18.
4
The Court found that the very nature of the harm tended to undermine the presumption against
extraterritoriality: Because border-protection statutes are “fundamentally international, not
simply domestic, in focus and effect,” it “makes no sense to presume that such a statute applies
only domestically.” Id.
15
“many [failed] attempts to bring someone into the United States will occur outside the United
States.” Id. And second, the court reasoned that it would be “much easier” to conspire to
encourage or induce illegal immigration “outside the United States, in proximity to those who
carry out the plot.” Id. at 1348. The conspiracy provision therefore “contemplates application to
much extraterritorial conduct.” Id.
In this Circuit, then, Bowman is satisfied when (1) a federal criminal offense directly
harms the U.S. Government, and (2) enough foreseeable overseas applications existed at the time
of a statute’s enactment (or most recent amendment) to warrant the inference that Congress both
contemplated and authorized prosecutions for extraterritorial acts. Delgado-Garcia’s “locus”
inquiry specifically asks whether a statute “ha[s] many obvious extraterritorial applications,” id.
at 1347, or whether offenders “will often be outside the United States,” id.5 As long as such a
likelihood existed when the statute was passed—whether because of the nature of the offense (as
in Delgado-Garcia), contingent facts about the United States’s presence abroad, or some
combination thereof—courts may properly infer a congressional intent to permit extraterritorial
uses. This process yields the necessary “clear indication of an extraterritorial application.”
Morrison, 130 S. Ct. at 2878. It is not enough, as the Government suggests, that a statute seek to
protect U.S. interests that “lie, or may very well lie, outside the United States.” Opp. Mot.
Dismiss (“Opp.”), ECF No. 53, at 20. Nor may judges attempt to divine “what Congress would
5
Delgado-Garcia offered several virtually identical formulations of this standard. See, e.g., id. at
1346 (“[M]uch of the conduct that § 1324(a) criminalizes occurs beyond the borders of the
United States.”); id. at 1347 (concluding that § 1324(a) “applies to much extraterritorial
conduct”); id. (observing that “many” proscribed attempts would occur overseas); id. at 1347–48
(finding that the charged conspiracy offense “has many natural extraterritorial applications”); id.
at 1348 (noting that § 1324(a) “has a great many international applications”).
16
have wanted if it had thought of the situation before the court.” Morrison, 130 S. Ct. at 2881.
With these principles in mind, the Court now turns to Al-Imam’s individual statutory challenges.
3. Al-Imam’s Statutory Challenges
Al-Imam contends that five of the statutes under which he is charged do not apply
extraterritorially.
a. 18 U.S.C. § 1114: Murder and Attempted Murder of Officers
and Employees of the United States
Counts Four through Six charge Al-Imam with murder in violation of 18 U.S.C. § 1114;
counts Seven through Nine charge him with attempted murder in violation of § 1114. That
statute reads, in full:
Whoever kills or attempts to kill any officer or employee of the United States or of
any agency in any branch of the United States Government (including any member
of the uniformed services) while such officer or employee is engaged in or on
account of the performance of official duties, or any person assisting such an officer
or employee in the performance of such duties or on account of that assistance, shall
be punished—
(1) in the case of murder, as provided under section 1111;
(2) in the case of manslaughter, as provided under section 1112; or
(3) in the case of attempted murder or manslaughter, as provided in section 1113.
Section 1114 does not explicitly reference extraterritorial application, so such prosecutions must
be justified by Bowman, if at all. The Court does not doubt—nor does Al-Imam contest—that
§ 1114 targets a form of harm suffered directly by the U.S. Government. Under Delgado-Garcia,
then, just one question remains: Did § 1114 “have many obvious extraterritorial applications”
when it was enacted (or most recently amended)?
Cautious of its institutional limitations in resolving an issue of this nature, the Court
answers affirmatively. The parties have not informed the Court as to when § 1114 was either
17
originally enacted or last amended. That law appears to have remained in its current form since
being amended as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, § 727(a), 110 Stat. 1214. Nor have the parties provided concrete information on the
number of U.S. officers and employees working and residing abroad, either in 1996 or today.
The Government asserts (though without substantiation) that “[t]he United States government
has over one hundred thousand officers and employees stationed abroad.” Opp. at 21. Al-Imam
has not questioned this estimate. Because a purely territorial statute cannot become
extraterritorial as a result of changing conditions—only a deliberate congressional choice can
rebut the presumption—present-day figures matter only insofar as they indirectly reflect what
conditions either obtained when a statute was passed or were understood to be likely to exist in
the future.
Here, the Court is satisfied that § 1114 “ha[d] many obvious extraterritorial
applications” when the law was last amended in 1996—enough to have put Congress on notice
of the issue of extraterritoriality and to permit an inference under Bowman that the law was
intended to reach conduct undertaken outside the United States. It is widely known that then, as
now, large numbers of U.S. diplomats and Foreign Service Officers, military servicemembers,
members of the intelligence community, and other government personnel served the United
States’s interests abroad. Executive and legislative officials (and their staff) also frequently
traveled—and obviously still do—outside the United States in the course of performing their
official duties. See also United States v. Al Kassar, 660 F.3d 108, 118 (2d Cir. 2011) (“[A]
significant number of [U.S.] employees perform their duties outside U.S. territory.”). Such U.S.
employees and officials could obviously be killed while engaging in or on account of performing
their official duties. Under Delgado-Garcia, this is enough to conclude that Congress authorized
18
extraterritorial prosecutions under § 1114. Al-Imam may well be correct that “nothing in the
statute suggests an international focus,” MTD at 13, whereas the Delgado-Garcia court found the
relevant statute to be “fundamentally international . . . in focus and effect,” 374 F.3d at 1345.
Yet Bowman still allows an inference that Congress intended to authorize overseas prosecutions
for crimes enacted in the wake of purely domestic incidents. Under Delgado-Garcia, a criminal
offense whose most natural or obvious applications are domestic can still be prosecuted abroad if
the law had “many obvious extraterritorial applications” at the time of enactment. Id. at 1346–
47.
Al-Imam nonetheless argues that a comparison between § 1114 and § 1116, which
criminalizes the murder of internationally protected persons, reveals that Congress did not intend
for § 1114 to apply extraterritorially. MTD at 12-13. Both statutes were amended in 1996;
whereas § 1116 broadened the “internationally protected person” category to reach “any other
representative, officer, employee, or agent of the United States Government,” § 1114 remained
generally worded and geographically ambiguous. Id. at 12. As a result, Al-Imam claims,
§ 1116’s amendment “would have been unnecessary if Congress had intended § 1114 to apply to
the extraterritorial killing of all [U.S.] officers and employees.” Id. at 5-6. The Court is not
persuaded. To qualify as an internationally protected person, one must be, “at the time and place
concerned[,] . . . entitled pursuant to international law to special protection against attack.” 18
U.S.C. § 1116(b)(4)(B). Such an element is missing from § 1114. Section 1116 “appl[ies] to a
relatively small subset of the broad class of United States employees and officers covered by
Section 1114.” United States v. Bin Laden, 92 F. Supp. 2d 189, 203 (S.D.N.Y. 2000). Such
modest overlap between the two statutes is not enough to upend the method of analysis called for
by Delgado-Garcia.
19
Other statutes not cited by Al-Imam lend some credence to his position that “when
Congress intend[s] a homicide statute to apply extraterritorially, it specifically state[s] so.” MTD
at 12. One of them, 18 U.S.C. § 1751, criminalizes (among other things) assassinating the
President, Vice President, or President-elect. This statute would seem to satisfy Bowman rather
easily. Yet it specifically clarifies that “[t]here is extraterritorial jurisdiction over the conduct
prohibited by this section.” Id. § 1751(k). A similar law prohibiting the killing of members of
Congress, cabinet heads, Supreme Court Justices, and directors of specified intelligence agencies
also explicitly permits prosecutions for extraterritorial conduct. 18 U.S.C. § 351(i). On the other
hand, a number of federal criminal statutes designed to prevent harm to the Government that
would frequently occur abroad are expressly limited to domestic offenses. Congress apparently
understood that Bowman would otherwise apply in these instances, but for some reason chose to
limit its operation. Such criminal offenses include discriminating against persons wearing the
uniform of the armed forces, 18 U.S.C. § 244; commencing or facilitating an expedition against a
friendly nation, 18 U.S.C. § 960; and enlisting “to serve in armed hostility against the United
States,” 18 U.S.C. § 2390. The Court therefore declines to demand clear statements of
extraterritorial application in this case—essentially, to render Bowman toothless—merely
because some criminal statutes have not relied on Bowman to signal their geographic reach.
The D.C. Circuit’s recent refusal to permit a Bivens cause of action to remedy harm
inflicted extraterritorially does not change the Court’s analysis. In Meshal v. Higginbotham, 804
F.3d 417 (D.C. Cir. 2015), the D.C. Circuit offered the following hypothetical in declining to
recognize the asserted implied private right of action: “If Congress had enacted a general tort
cause of action applicable to Fourth Amendment violations committed by federal officers (a
statutory Bivens, so to speak), that cause of action would not apply to torts committed by federal
20
officers abroad absent sufficient indication that Congress meant the statute to apply
extraterritorially.” Id. at 425 (citing Morrison, 130 S. Ct. at 2877). That statement fully coheres
with this Court’s analysis. Bowman and Delgado-Garcia continue to govern whether the
presumption has been rebutted for criminal statutes. Under current law, satisfying Bowman
furnishes a “sufficient indication that Congress meant the statute to apply extraterritorially.” Id.
Nor is this Court the first to hold that § 1114 reaches abroad under Bowman. See Al Kassar, 660
F.3d at 118; Bin Laden, 92 F. Supp. 2d at 202; United States v. Benitez, 741 F.2d 1312, 1317
(11th Cir. 1984).
For the foregoing reasons, the Court will deny Al-Imam’s motion as to Counts Four
through Nine, which charge him with violating 18 U.S.C. § 1114.
b. 18 U.S.C. § 930(c): Killing a Person in the Court of an Attack
on a Federal Facility Involving the Use of a Firearm or Other
Dangerous Weapon
Counts Ten through Thirteen charge Al-Imam with violating 18 U.S.C. § 930(c). Section
930 provides, in relevant part:
(c) A person who kills any person . . . in the course of an attack on a Federal facility
involving the use of a firearm or other dangerous weapon, or attempts or conspires
to do such an act, shall be punished as provided [elsewhere].
***
(g) As used in this section:
(1) The term “Federal facility” means a building or part thereof owned or leased by
the Federal Government, where Federal employees are regularly present for the
purpose of performing their official duties.
Because § 930 is silent on its geographic reach, Bowman must again guide the Court’s
extraterritoriality analysis. Bowman’s “harm” test is clearly satisfied here—the act of killing
someone in the course of an attack on a federal facility directly harms the U.S. Government.
21
The remaining question is whether § 930(c) offenses are “not logically dependent on their
locality,” meaning that the provision had “many obvious extraterritorial applications” when it
was enacted (or most recently amended). Delgado-Garcia, 374 F.3d at 1346–47.
Al-Imam points out that § 930(c) was added to 18 U.S.C. § 930 as part of the Violent
Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 60014, 108 Stat. 1796.
He argues that because some other provisions of this omnibus legislation expressly permitted
prosecutions for conduct abroad, Congress cannot be said to have clearly authorized the
extraterritorial use of § 930(c). MTD at 15. Al-Imam further claims that the “obvious focus” of
this statute is “Federal facilities within U.S. territory,” id. at 16, for “§ 930(c) was passed as part
of a series of laws targeting murder committed by escaped prisoners, murder of state or local
officials assisting federal law enforcement officials, the protection of court officers and jurors,
and the retaliatory killings of witnesses, victims, and informants.” Reply in Support of Mot.
Dismiss (“Reply”), ECF No. 54, at 9.
Yet a criminal statute whose legislative history and neighboring provisions are bereft of
foreign references may still apply extraterritorially if Bowman’s “harm” and “locus” elements
(as understood by Delgado-Garcia) are both satisfied. Again, the Government has not provided a
concrete figure for or independently substantiated how many federal facilities exist outside the
United States. But it has assured the Court that they number in the “hundreds.” Opp. at 25. Al-
Imam does not contest this approximation. Cf. Bin Laden, 92 F. Supp. 2d at 201–02 (observing
that “a significant number of Federal facilities are located outside the United States”). The Court
notes that embassies, consulates, and other diplomatic missions would seem to be fairly
encompassed within § 930(g)(1)’s definition of “Federal facility,” as would the component
structures of military bases. Such structures were no doubt similarly prevalent when § 930(c)
22
was enacted in 1994. The Government also asserts that “many [Federal facilities abroad] are in
more dangerous areas than Federal facilities within the United States,” which presumably alerted
Congress to the likelihood of attacks on overseas facilities for reasons apart from those facilities’
sheer numerosity. Opp. at 25. The Court hesitates to impute an ignorance of these conditions to
the enacting Congress. Accordingly, the Court joins the Southern District of New York in
concluding that § 930(c) applies extraterritorially under Bowman, because that law had many
foreseeable extraterritorial applications at the time of enactment. See Bin Laden, 92 F. Supp. 2d
at 201–02. The Court will therefore not dismiss Counts Ten through Thirteen for lack of
extraterritoriality.
c. 18 U.S.C. § 844(f)(1) & (3): Maliciously Damaging and Destroying
U.S. Property by Means of Fire and an Explosive Causing Death
Counts Fourteen and Fifteen charge Al-Imam with violating 18 U.S.C. §§ 844(f)(1) &
(3). Sections 844(f)(1) and (3) provide:
(f)(1) Whoever maliciously damages or destroys, or attempts to damage or destroy,
by means of fire or an explosive, any building, vehicle, or other personal or real
property in whole or in part owned or possessed by, or leased to, the United States,
or any department or agency thereof, or any institution or organization receiving
Federal financial assistance, shall be imprisoned for not less than 5 years and not
more than 20 years, fined under this title, or both.
***
(3) Whoever engages in conduct prohibited by this subsection, and as a result of
such conduct directly or proximately causes the death of any person, including any
public safety officer performing [his] duties, shall be subject to the death penalty,
or imprisoned for not less than 20 years or for life, fined under this title, or both.
As with § 1114 and § 930(c), § 844(f) contains no provision explicitly authorizing extraterritorial
use. The Court will therefore analyze § 844(f)’s geographic reach under the Bowman
framework. Damaging or destroying U.S. property unquestionably harms the U.S. Government.
So again, the remaining issue is whether § 844(f) had “many obvious extraterritorial
23
applications” at the time of its enactment or most recent amendment. Delgado-Garcia, 374 F.3d
at 1347.
The Court answers in the affirmative. Statutory “Federal facilities”—buildings owned or
leased by the U.S. Government, where federal employees are regularly present for the purpose of
performing their official duties—are but a subset of “personal or real property in whole or in part
owned or possessed by, or leased to, the United States, or any department or agency thereof.” 18
U.S.C. § 844(f)(1). The enacting Congress6 cannot have envisioned considerably fewer overseas
applications of a more expansive category of crimes. Because the Court has already concluded
that Bowman permits extraterritorial prosecutions under § 930(c), the Government may
necessarily proceed under § 844(f), as well. Again, the Southern District of New York has held
likewise. See Bin Laden, 92 F. Supp. 2d at 198.
Al-Imam insists that § 844(f) “does not have an international focus.” MTD at 16. For
all the Court can tell, he is correct. Al-Imam explains that § 844(f) was “indisputably passed to
expand federal authority over bombings of domestic properties during the Vietnam War.” Reply
at 10. The Government offers no reason to doubt this account of the historical forces driving
§ 844’s passage. But Al-Imam misunderstands the import of Delgado-Garcia’s application of
Bowman. To be sure, Delgado-Garcia characterized § 1324(a)’s border-control provisions as
“fundamentally international . . . in focus and effect.” Delgado-Garcia, 374 F.3d at 1345.
Delgado-Garcia could have interpreted Bowman to mean that an offense is not logically
dependent on its locality when it will likely be committed overseas more often than not, just as
6
Section 844(f) was originally passed as part of the Organized Crime Control Act of 1970, Pub.
L. No. 91-452, § 1102, 84 Stat. 956, and was last substantively modified in the Homeland Security
Act of 2002, Pub. L. No. 107-296, § 1125, 116 Stat. 2135.
24
the court believed that § 1324(a) crimes would be. Yet the D.C. Circuit articulated a more
permissive standard for satisfying Bowman’s “locus” element: whether a criminal statute “ha[s]
many obvious extraterritorial applications.” Id. at 1347. A prohibition can have many obvious
extraterritorial applications even if it is most readily and naturally deployed domestically.
Nor is it material that § 844(f) prohibits the damaging or destruction of “any institution or
organization receiving Federal financial assistance,” the great majority of which are presumably
located domestically. Section 844 clearly targets a vast range of destructive behavior undertaken
within the territorial United States. But its independently operative provisions that protect U.S.
property could foreseeably be applied abroad in a great number of situations; this must have been
known when the statute was modified in 2002, as well. As a result, the Court will deny Al-Imam’s
motion as to Counts Fourteen and Fifteen.
d. 18 U.S.C. § 2339A: Providing Material Support and Resources to
Terrorists Resulting in Death (and Conspiring to Do the Same)
Count One charges Al-Imam with conspiring to violate 18 U.S.C. § 2339A (“the
material-support statute”), and Count Two charges him with a substantive violation of that
statute. As with each of the offenses discussed above, § 2339A does not explicitly authorize
extraterritorial prosecutions. Section 2339A provides, in relevant part (with only potentially
applicable predicate offenses listed below):
(a) Offense. Whoever provides material support or resources or conceals or
disguises the nature, location, source, or ownership of material support or resources,
knowing or intending that they are to be used in preparation for, or in carrying out,
a violation of section . . . 844(f) . . . , 930(c), . . . 1114, 1116, . . . [or] 1363, . . . or
in preparation for, or in carrying out, the concealment of an escape from the
commission of any such violation, or attempts or conspires to do such an act, shall
be fined under this title, imprisoned not more than 15 years, or both, and, if the
death of any person results, shall be imprisoned for any term of years or for life.
25
Section 1116 (corresponding to Count Three) explicitly authorizes extraterritorial prosecutions;
the other four offenses (corresponding to Counts Four through Seventeen) do not. Al-Imam
therefore moves to dismiss Counts One and Two insofar as they charge him with providing (or
conspiring to provide) material support for violations of §§ 844(f), 930(c), 1114, and 1363.
Al-Imam and the Government agree that § 2339A is an ancillary crime that applies
extraterritorially to the extent that an associated substantive offense does. Deciding whether to
dismiss an ancillary offense for lack of extraterritoriality requires no new analysis when the
geographic reach of any predicate crimes has already been determined. The Court therefore
incorporates by reference its earlier holdings and denies Al-Imam’s motion as to Counts One and
Two. The Government may continue to proceed under § 2339A insofar as it charges Al-Imam
with providing (or conspiring to provide) material support for a violation of §§ 844(f), 930(c),
1114, or 1116.
e. 18 U.S.C. § 1363: Maliciously Destroying or Injuring Property Within
the Special Maritime and Territorial Jurisdiction of the United States
In the Court’s initial motion-to-dismiss ruling in Abu Khatallah, the Court reserved
judgment on the extraterritorial application of § 1363 issue and ordered supplemental briefing.
After reviewing the parties’ submissions, the Court concluded that the alleged conduct, if proved,
occurred within the special maritime and territorial jurisdiction of the United States (“SMTJ”) as
defined in 18 U.S.C. § 7(9) and therefore found that it had jurisdiction over the § 1363 charges.
The following analysis is cribbed, with slight modifications to address Al-Imam’s reply
arguments, from the Court’s opinion in Abu Khatallah. 168 F. Supp. 3d at 211.
Congress defined two distinct crimes in 18 U.S.C. § 1363. The first entails “willfully and
maliciously destroy[ing] or injur[ing] any structure, conveyance, or other real or personal
property, or attempt[ing] or conspir[ing] to do such an act” within the SMTJ. A person who
26
commits that crime may be imprisoned for up to five years. The second involves the same
conduct where the targeted “building [is] a dwelling” or where the act results in “the life of any
person be[ing] placed in jeopardy.” A person who commits that crime may be imprisoned for up
to twenty years.
Al-Imam disagrees with this analysis of the statute. As he sees it, “the enhanced form of
§ 1363 involves ‘jeopardy’ to the life of a person, without thereby being transformed into a crime
against a person.” Reply at 19. Rather, Al-Imam contends that § 1363 defines a single property
crime concerned with buildings or property within special maritime and territorial jurisdiction.
This position is untenable, however, in light of the Supreme Court’s decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000). There, the Court held that any fact that “expose[s] the defendant to
a greater punishment than that authorized by the jury’s guilty verdict” is an “element” that must
be submitted to a jury and proved beyond a reasonable doubt. Id. at 494. The endangerment of a
person’s life is a “fact that, by law, increases the penalty” under § 1363, and is therefore “an
‘element’ [of a crime] that must be submitted to the jury and found beyond a reasonable doubt.”
Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013). The government recognizes as much.
The crime with which Al-Imam is charged, therefore, has the following elements: (1) willfully
and maliciously destroying or injuring any structure, conveyance, or other real or personal
property, or attempting or conspiring to do such an act, (2) within the SMTJ, (3) where the
destroyed or injured building is a dwelling or where the act results in the life of any person being
placed in jeopardy.
As a threshold matter, the Court finds that the government is not legally precluded from
presenting evidence under 18 U.S.C. § 7(9) in support of the second element. In other words, to
demonstrate that the conduct at issue occurred within the SMTJ, the government may show that,
27
“[w]ith respect to offenses committed by or against a national of the United States,” 18 U.S.C.
§ 7(9), the Special Mission and Annex constituted “the premises of United States diplomatic,
consular, military or other United States Government missions or entities in foreign states,” id.
§ 9(A), or that they were “residences in foreign States,” id. § 9(B).7
To prove that the offense was “committed . . . against a national of the United States”
under § 7(9), the government seeks to show, inter alia, that Al-Imam “placed the lives of United
States nationals in danger” as a result of his conduct. Indictment Count Sixteen ¶ 2; id. Count
Seventeen ¶ 2. The question for the Court, then, is whether the crimes charged in Counts Sixteen
and Seventeen constitute offenses “committed . . . against a national of the United States.” 18
U.S.C. § 7(9). The Court concludes that they do. Where the government seeks to satisfy its
burden as to an element of a crime by showing that a person’s life was endangered,8 and that
person is a U.S. national, the offense is necessarily one “committed . . . against a national of the
United States.” 18 U.S.C. § 7(9). Prosecution under § 1363—for an offense “committed . . .
against a national of the United States”—is therefore appropriate where the government alleges
7
To the extent that the Court might be inclined to follow the approach to interpreting
§ 7(9) outlined in United States v. Passaro, 577 F.3d 207 (4th Cir. 2009), that case hardly
justifies precluding the government from proceeding under § 7(9). The sorts of factors Passaro
deemed relevant—including “the length of United States control over th[e] premises, the
substantiality of its improvements, [and] actual use of the premises,” id. at 214—plainly call for
fact-specific inquiries. Passaro even deemed the testimony of “trial witnesses” relevant in
determining whether a particular military installation qualified as a “military . . . mission[]”
under § 7(9). Id. at 215. The Court also notes that Al-Imam did not respond to the government’s
assertion that the Special Mission and Annex constituted “other United States . . . entities in
foreign States.” 18 U.S.C. § 7(9)(A) (emphasis added).
8
Although the offense at issue concerns risk of physical harm, the Court does not express
an opinion as to whether a crime involving financial or other harm to a U.S. national might also
constitute an offense “committed . . . against a national of the United States.” 18 U.S.C. § 7(9).
28
and seeks to prove that, in the course of maliciously destroying and injuring dwellings and
property within the SMTJ, a defendant placed the lives of U.S. nationals in danger.
Al-Imam’s objections on this point are unavailing.9 In his view, he has not been charged
with committing a crime against a U.S. national—or any person, for that matter—because § 1363
simply defines a property crime that can be committed only . . . , if there has been damage, or the
intent to damage, a building,” and which has the “unambiguous statutory purpose” of protecting
“[b]uildings or property within special maritime and territorial jurisdiction.” Def’s Suppl. Br.,
Abu Khatallah, 14-cr-141 (“Abu Khatallah’s Suppl. Br.”), ECF No. 141, at 10. Yet the
government has charged Al-Imam with a crime that includes as one of its elements the
endangerment of human life and that carries a maximum penalty fifteen years greater than when
no life is placed in jeopardy. That crime is most assuredly concerned with protecting people, not
just buildings or property.
In addition, Al-Imam claims, “[p]lacing a life in jeopardy is not an offense against a
person under federal law. The word ‘offense’ necessarily means a chargeable offense under U.S.
federal law; if an ‘offense’ against a U.S. national could be any conceivable offense—criminal or
otherwise—§ 7(9) would be rendered meaningless.” Id. at 11. Al-Imam is surely correct that the
word “offense” refers to a chargeable offense under U.S. federal law, and that an “offense
against a national of the United States” cannot mean any conceivable offense. But this argument
9
It is unclear whether Al-Imam intended to incorporate the arguments Abu Khatallah
made in his supplemental briefing on the § 1363 issue, or rather only the arguments Abu
Khatallah made in his initial motion to dismiss (which is what he reproduces in this case). The
Court will respond to Al-Imam as if he intended to incorporate the supplemental arguments,
since the Court’s § 1363 decision ultimately came after considering those arguments. The
citations to the Al-Imam’s “arguments,” however, will be to Abu Khatallah’s supplemental brief.
The government, for its part, reproduces its supplemental briefing arguments in its opposition, so
the Court will cite to its opposition in this case when addressing its arguments.
29
misses the mark. The government does not contend—and this Court does not hold—that
“[p]lacing a life in jeopardy is,” on its own, “an offense against a person under federal law.” Id.
Nor does the Court hold that any criminal act that results in harm or the risk of harm to a U.S.
national constitutes an “offense against a national of the United States.” Rather, the Court
concludes that when placing a life in jeopardy satisfies an element of a crime with which a
person is charged, the charged offense is necessarily one “committed . . . against a national of the
United States.” 18 U.S.C. § 7(9).
Lastly, Al-Imam argues that when Congress placed within the SMTJ “offenses
committed . . . against a national of the United States,” id., it meant to import the common-law
meaning of the term “crimes against the person,” which “include only those offenses that, by
their nature, are likely to involve the intentional use or threat of physical force against another
person,” Abu Khatallah’s Suppl. Br. at 11-12 (emphasis added) (citing United States v. Trejo-
Galvan, 304 F.3d 406 (5th Cir. 2002) (holding that the misdemeanor of driving under the
influence of alcohol did not constitute a “crime against the person” under the common-law
definition of that term)). Although Congress may “intend[] to incorporate the well-settled
meaning of the common-law terms it uses,” United States v. Castleman, 134 S. Ct. 1405, 1410
(2014) (quoting Sekhar v. United States, 133 S. Ct. 2720, 2724 (2013)), Congress has not used
such a term here. Instead, it spoke of “offenses committed by or against a national of the United
States,” 18 U.S.C. § 7(9)—broad language that encompasses crimes involving U.S. nationals,
either as perpetrators or victims.
Al-Imam counters that this interpretation leads to “the absurd conclusion that . . . the
government would have jurisdiction to prosecute . . . even when the perpetrator was not aware
that a U.S. person was present and a life could be endangered.” Abu Khatallah’s Suppl. Br. at
30
12. How can it be, Al-Imam asks, that “[w]hether a building is within special territorial
jurisdiction” is “wholly contingent upon the arbitrary presence of a U.S. person and the degree of
risk posed to that person at the time of the injury to the building”? Id. But such a result is far
from absurd. The federal Hostage Taking Act, for example, prohibits (in part) seizing or
detaining a person anywhere in the world for the purpose of compelling a governmental
organization to take or not take some action. The Act “authoriz[es] assertion of U.S. jurisdiction
where ‘the offender or the person seized or detained is a national of the United States.’” United
States v. Yunis, 924 F.2d 1086, 1090 (D.C. Cir. 1991) (quoting 18 U.S.C. § 1203(b)(1)(A)); see
also id. (finding it sufficient that “two of the passengers on Flight 402 were U.S. citizens”)
(emphasis added). In such an instance, the victim’s U.S. “citizenship [or status as a U.S.
national] is an element of the offense that the government ha[s] to prove beyond a reasonable
doubt.” United States v. Clarke, 767 F. Supp. 2d 12, 64 (D.D.C. 2011), aff’d sub nom. United
States v. Straker, 800 F.3d 570 (D.C. Cir. 2015). The offender’s knowledge of the victim’s
nationality is irrelevant. See Yunis, 924 F.2d at 1096. Similarly, federal law prohibiting
destruction of aircraft expressly provides for jurisdiction when, inter alia, “a national of the
United States was on board, or would have been on board, the aircraft.” 18 U.S.C. § 32(b).
Federal jurisdiction in that scenario may indeed be “wholly contingent upon the arbitrary
presence of a U.S. person,” Abu Khatallah’s Suppl. Br. at 12, a reflection of Congress’s intent to
“confer[] jurisdiction based on the characteristics of the victim regardless of the offender’s
knowledge thereof,” Opp. at 33.
This understanding is consistent with the well-established principle that courts need not
infer an unwritten mens rea element with respect to factual circumstances that are “sufficient to
confer jurisdiction on the federal courts.” United States v. Feola, 420 U.S. 671, 676 n.9 (1975).
31
In Feola, for example, the Supreme Court refused to construe a federal statute “as embodying an
unexpressed requirement that an assailant be aware that his victim is a federal officer,” for “[a]ll
the statute requires is an intent to assault, not an intent to assault a federal officer.” Id. at 684.
And in United States v. Yermian, 468 U.S. 63 (1984), the Court held that a defendant charged
with making a false statement within the jurisdiction of a federal agency could be prosecuted
without “proof of actual knowledge of federal agency jurisdiction,” id. at 75. So it is not
categorically absurd to permit prosecutions based on the “arbitrary presence” of certain factual
circumstances—including victim characteristics—that coincide with otherwise-proscribed
behavior. A person need not have known that the victim of his crime was a U.S. national for
jurisdiction to lie under 18 U.S.C. § 7(9).
B. Al-Imam’s Critique of the Court’s Extraterritoriality Analysis in Abu Khatallah
As the foregoing demonstrates, this Court’s conclusion that the federal laws at issue, save
for 18 U.S.C. § 1363, applied extraterritorially relied heavily on the Supreme Court’s decision in
Bowman and the D.C. Circuit’s decision in Delgado-Garcia. Al-Imam contends that the Court
made two mistakes in applying Bowman and Delgado-Garcia, and that if it corrects those errors,
his favored conclusion will follow: that the federal laws Al-Imam stands charged of violating do
not apply extraterritorially. Although his arguments are well-made and not without some force,
they are ultimately unconvincing.
1. The Importance of the Defendant’s Citizenship
The Court’s first misstep, according to Al-Imam, was failing to appreciate the centrality
of the defendant’s citizenship to the Supreme Court’s decision in Bowman. MTD at 5. Al-Imam
explains that, because the defendants in that case, unlike here, were American citizens, Bowman
does not control this case. Instead, he insists all Bowman can teach is that “satisfying [its
32
standard] is one way of clearly-indicating a statute’s extraterritorial reach over U.S. citizens.” Id.
To support his point that the American citizenship of the defendants was pivotal to the analysis
in Bowman, Al-Imam highlights that the Court reserved judgment on the question whether an
alleged British co-conspirator could be prosecuted for violation of the same laws. MTD at 5; see
Bowman, 260 U.S. at 102-03 (“[I]t will be time enough to consider what, if any, jurisdiction the
District Court below has to punish [the British offender] when he is brought to trial.”). Al-Imam
also points to passages in Bowman where the Court said its reasoning applied with special force
to fraud committed by American citizens. See 260 U.S. at 98 (“especially if committed by its
own citizens ”); id. at 100 (“certainly if a citizen of the United States”). Given those clues, Al-
Imam says “there is no way to separate out a ‘test’ from Bowman apart from its intuition that the
federal government, in assigning rules for its own citizens with regard to itself, would not
necessarily need to expressly state that its rules apply where its own citizens roam.” MTD at 7.
Al-Imam reads too much into the citizenship distinction. While the distinction means
Bowman does not by itself dictate the extraterritoriality of the statutes under which Al-Imam is
charged—which it never could in any event, given that the statutes at issue are also different—it
does not seriously diminish Bowman’s application to this case. Any argument to the contrary
appears foreclosed by the D.C. Circuit’s decision in Delgado-Garcia. There, the court
acknowledged the “differences” between the case before it and Bowman, including the
nationality of the defendants, but concluded that they “do not lessen Bowman’s force as applied
to this case.” 374 F.3d at 1345. The court made this point in the plainest of terms. “The first
difference, the citizenship of the defendants, is irrelevant. While Bowman did qualify its
holding by noting that no aliens were before the Court, Bowman’s logic did not depend on this
33
fact.” Id. at 1345-46 (emphases added). Because the citizenship distinction did not lessen
Bowman’s utility in Delgado-Garcia, it should make no difference in this case, either.
Al-Imam’s attempt to avoid this conclusion is unavailing. Al-Imam seems to suggest that
it was permissible for Delgado-Garcia to use Bowman as persuasive authority despite the
citizenship distinction because Delgado-Garcia “involved a prohibition on importing immigrants
that is patently concerned with foreign conduct,” but that it would be improper for the Court to
rely on Bowman here because the statutes at issue are not so obviously focused on foreign
conduct. Reply at 5; see MTD at 9 (contending the citizenship issue mattered less because the
court was “interpreting [a] clearly-internationally-focused statute”). But whether Bowman’s
reasoning can be applied to cases involving different types of harm is a separate question from
whether it can be applied to cases involving foreign nationals. Delgado-Garcia made this
abundantly clear. There, the court identified two separate distinctions from Bowman: that it
involved (1) “aliens” (as opposed to American citizens) and (2) “immigration offenses” (as
opposed to fraud offenses). Delgado-Garcia, 374 F.3d at 1345. And it discussed each
distinction—separately—at length. See id. (“The first difference, the citizenship of the
defendants, is irrelevant.”); id. at 1346 (“The second main difference . . . that this case involves
immigration offenses rather than frauds against the United States . . . shows that Bowman applies
with even greater force . . . .”). Delgado-Garcia’s discrete treatment of these distinctions
demonstrates that they are not in some sort of hydraulic relationship, i.e. that the citizenship
distinction precludes Bowman’s application when a statute is not “patently concerned with
foreign conduct,” and vice versa. Reply at 5. The Court therefore concludes, consistently with
the D.C. Circuit in Delgado-Garcia, that the citizenship distinction does little to lessen
Bowman’s applicability to this case.
34
To the extent Al-Imam contends that Delgado-Garcia misapplied Bowman by giving too
little weight to the defendant’s citizenship, that is an argument for the Circuit, not this Court.
Nevertheless, his critique strikes the Court as misguided. As Al-Imam admits, the Bowman
Court’s use of the word “especially” with regard to the American defendants does not necessarily
indicate an intent to limit its extraterritoriality reasoning to American citizens. MTD at 6; see
also id. at 7 (“That is not to say that Bowman necessarily would have been decided differently
had the defendants been foreign[.]”). Indeed, there can be no argument that the Court in
Bowman expressly limited its reasoning to cases involving American citizens. United States v.
Ayesh, 762 F. Supp. 2d 832, 840 (E.D. Va. 2011), aff’d, 702 F.3d 162 (4th Cir. 2012) (“As the
use of the word ‘especially’ suggests, a defendant’s United States citizenship strengthens the
justification for extraterritoriality, but is not required for such a finding.”).10
Moreover, as the government notes, there are clues in Bowman that suggest the Court
would have reached the same conclusion regardless of the defendants’ citizenship. Opp. at 6-7.
First, even as the Bowman Court said it was “especially” confident of its ruling as applied to
American defendants, 260 U.S. at 98, it also highlighted that the fraud statute at issue in the case
was “directed generally against whoever presents a false claim,” “whoever connives at the
same,” or “whoever enters a conspiracy to do these things,” with no mention of any limitation
based on citizenship, id. at 101 (emphases added). Second, there is the Court’s statement that,
as a general matter, laws should be deemed to apply extraterritorially where the offenses
10
To be sure, it also cannot be said that the Bowman Court expressly applied its
reasoning to foreign nationals, since it was careful to reserve on the question whether the
analysis would be the same if the British defendant were involved in the case. All the Court is
making clear, however, is that Bowman never affirmatively said it would reach a different
conclusion if the defendants in the case were foreign nationals, even while it said it was more
certain of its conclusion given that the defendants were American citizens.
35
proscribed are “not logically dependent on their locality.” Id. at 98. This suggests the
touchstone for extraterritoriality analysis is where the offense might be committed, not by whom,
exactly as Delgado-Garcia concluded. Further evidence that the locus of the crime, rather than
the identity of offenders, mattered most in Bowman can be found in the Court’s discussion of the
fraud statute’s amendment, which revealed an intent to protect a particular corporation that “was
expected to engage in, and did engage in, a most extensive ocean transportation business.” Id. at
101. The Delgado-Garcia court reasoned that this passage in Bowman made clear that, as far as
the Supreme Court was concerned, the surest indication of whether Congress intends for a law to
apply extraterritorially is whether it could frequently be expected to protect against
extraterritorial misconduct, regardless whether that misconduct is committed by an American
citizen or foreign national. Delgado-Garcia, 374 F.3d at 1346 (“Because of this expectation, the
Court reasoned, many persons who commit the crime of defrauding a U.S. corporation would do
so overseas, and therefore the statute had extraterritorial application.”); see also Ayesh, 762 F.
Supp. 2d at 840 (“[T]he Bowman opinion focused on the nature of the harms . . . and not the
characteristics or nationalities of the perpetrators.”). The Court finds Delgado-Garcia’s reading
of Bowman persuasive; even if this Court had the authority to disregard it, it sees no reason to do
so.11
11
It is worth noting that Al-Imam has identified no decision in which a court has
concluded that the application of Bowman depends on the citizenship of the defendant, and the
Court is not aware of any such case. Instead, the opposite appears true. See United States v. Bin
Laden, 92 F. Supp. 2d 189, 195 (S.D.N.Y. 2000) (“[N]o court, to date, has refused to apply
the Bowman rule on the ground that the defendant was a foreign national.”).
36
2. What is Required by the Bowman “Locus” Inquiry
That brings us to Al-Imam’s second criticism of the Court’s Abu Khatallah decision:
misapplying Bowman and Delgado-Garcia by adopting a too-permissive locus test. Recall that
in Bowman, the Supreme Court explained that if Congress wanted a statute to apply
extraterritorially, “it is natural for Congress to say so in the statute,” and that courts should not
imply such an intent when Congress does not. 260 U.S. at 98. The Court carved out an
exception to that rule, however, for “criminal statutes which are, as a class, not logically
dependent on their locality for the government’s jurisdiction.” Id. One such class of statutes, the
Court said, might be those where the “probable place” for an offense’s commission is abroad.
Id. at 99. This is Bowman’s “locus test” or “locus inquiry.” The D.C. Circuit in Delgado-Garcia
appeared to conclude that criminal statutes are “not logically dependent on their locality”—and
that Bowman’s locus inquiry is therefore satisfied—when “they have many obvious
extraterritorial applications.” 374 F.3d at 1346-47 (“The border-control statutes at issue here are
‘not logically dependent on their locality’ in the same sense that the fraud offense against the
United States was not in Bowman: they have many obvious extraterritorial applications.”).
Based on that passage (and other similar ones) in Delgado-Garcia, this Court reasoned in Abu
Khatallah that “the Delgado-Garcia majority offered a different explanation of what it means for
federal criminal offenses to be ‘not logically dependent on their locality’—that they ‘have many
obvious extraterritorial applications.’” 151 F. Supp. 3d at 128-29.12
12
This Court continued:
Bowman is satisfied when (1) a federal criminal offense directly harms the U.S.
Government, and (2) enough foreseeable overseas applications existed at the time
of a statute’s enactment (or most recent amendment) to warrant the inference that
Congress both contemplated and authorized prosecutions for extraterritorial acts.
37
Al-Imam identifies two problems with the Court’s explanation of the Bowman locus
inquiry. First, he says Delgado-Garcia never intended the “many obvious extraterritorial
applications” standard to supplant or even modify Bowman’s “probable place” standard; and
second, regardless whether Delgado-Garcia’s “many applications” formulation was intended as a
gloss on Bowman, Al-Imam stresses that Delgado-Garcia never said that a statute having many
obvious extraterritorial applications would satisfy the locus prong in every case, only that it was
necessary to the result in that specific case. See MTD at 7-10.
Start with Al-Imam’s first point—that this Court misunderstood Delgado-Garcia as
offering a clarification on what Bowman requires. His basic contention is that Delgado-Garcia’s
discussion of Bowman must be viewed in light of how the former treated the latter, which was as
additional support for its conclusion, rather than as its decisional framework. Id. at 8 (“[T]he
court in Delgado-Garcia was not applying Bowman as a precedential framework. . . .”); see
Delgado-Garcia, 374 F.3d at 1345 (concluding that “both contextual and textual evidence” show
that statute “applies extraterritorially” before reaching Bowman, which “supports the validity of
this inference”). Because the D.C. Circuit merely “cite[d] Bowman as support for its ultimate
conclusion that the statute at issue applied extraterritorially,” Al-Imam contends it “had no
reason to formulate a Bowman ‘test,’ or even pay close attention to the distinction in its language
Delgado-Garcia’s “locus” inquiry specifically asks whether a statute “ha[s] many
obvious extraterritorial applications,” id. at 1347, or whether offenders “will often
be outside the United States,” id. As long as such a likelihood existed when the
statute was passed—whether because of the nature of the offense (as in Delgado-
Garcia), contingent facts about the United States’s presence abroad, or some
combination thereof—courts may properly infer a congressional intent to permit
extraterritorial uses.”
Abu Khatallah, 151 F. Supp. 3d at 129 (footnote omitted)
38
between ‘probable’ applications abroad and ‘many’ such applications.” MTD at 9. As a
consequence, Al-Imam says the Court in Abu Khatallah mistakenly substituted Delgado-Garcia’s
“many obvious extraterritorial applications” (and similarly worded variations) for Bowman’s
“probable place” in the locus inquiry. See Reply at 1 (“[T]o the extent any binding ‘test’ . . . can
be divined from these cases, it requires textual or contextual evidence of a ‘natural’ or ‘probable’
extraterritorial focus or effect. . . .”). In his view, that was never the D.C. Circuit’s intention, and
if it did so incidentally, that was only because Bowman was being used as additional, not
indispensable, authority.
Al-Imam’s argument is creative but ultimately unpersuasive. To start, his attempt to
downplay Bowman’s significance to the decision in Delgado-Garcia does not withstand closer
inspection. At the conclusion of the majority’s opinion in Delgado-Garcia, it singled out “the
same textual evidence used by the Supreme Court in Bowman and § 1324(a)’s international
focus” as the “two reasons” supporting its decision that the statute applied extraterritorially. 374
F.3d at 1351. In addition, Bowman is mentioned nearly 40 times in the opinion, occupying
several pages of analysis. It is also telling that Delgado-Garcia went to great lengths to explain
why the factual distinctions between the case and Bowman did not preclude Bowman’s
application. See id. at 1345-47. That the D.C. Circuit took pains to explain away those
distinctions suggests that the court understood Bowman was critical to its decision. This sharply
undermines Al-Imam’s contention that the court treated Bowman haphazardly because it played
an ancillary role in its reasoning.
But regardless of the role Bowman played in the Delgado-Garcia decision, Al-Imam fails
to convince the Court that the latter’s various “many” formulations should not guide the
Bowman locus inquiry. As an initial matter, the D.C. Circuit offered these formulations in
39
discussing what was necessary to satisfy Bowman. Most tellingly, when the dissent tried to
distinguish Bowman on the basis that the cases involved different types of harm, the majority
responded that “[t]he border-control statutes at issue here are ‘not logically dependent on their
locality’ in the same sense that the fraud offense against the United States was not in Bowman:
they have many obvious extraterritorial applications.” Delgado-Garcia, 374 F.3d at 1346-47.
That is a clear indication that the D.C. Circuit equates statutes having “many obvious
extraterritorial applications” with their being “not logically dependent on their locality.” The
sheer number of times the D.C. Circuit reiterated the standard, albeit in slightly different ways,
only fortifies the conclusion that such language should figure prominently into the Bowman
analysis. See, e.g., id. at 1346 (“[M]uch of the conduct that § 1324(a) criminalizes occurs
beyond the borders of the United States.”); id. at 1347 (concluding that § 1324(a) “applies to
much extraterritorial conduct”); id. (observing that “many” proscribed attempts would occur
overseas); id. (noting that “offenders will often be outside the United States”); id. at 1347–48
(finding that the charged conspiracy offense “has many natural extraterritorial
applications”); id. at 1348 (noting that § 1324(a) “has a great many international applications”).
To overlook these formulations and fixate on Bowman’s single use of the phrase “probable
place” would therefore ignore the mode of analysis employed in binding Circuit precedent. See
Abu Khatallah, 151 F. Supp. 3d at 134 (concluding that Delgado-Garcia “articulated a more
permissive standard for satisfying Bowman’s ‘locus’ element”).
To be sure, if Al-Imam could show that these formulations were somehow inconsistent
with Bowman, then the Court might conclude it was mistaken to make use of them. But he
cannot show as much, and does not seriously attempt to, beyond his (unpersuasive) suggestion
that the D.C. Circuit may not have “pa[id] close attention to the distinction in its language
40
between ‘probable’ applications abroad and ‘many’ such applications.” MTD at 9. In any event,
far from being inconsistent with Bowman, Delgado-Garcia’s “many obvious extraterritorial
applications” and related “much” and “often” phrasings seem largely in keeping with the
Supreme Court’s decision. While Bowman did use “probable place” in discussing one particular
offense (forging a ship’s papers) and “most likely” in discussing another (enticing desertions), it
said that another offense “would naturally often occur at sea,” which was enough to show that
Congress did not want “to confine it to the land of the United States.” 260 U.S. at 99. And in
discussing two other examples of laws that would apply extraterritorially, the Court focused on
whether the offenses could be committed outside the country, not on whether it was more likely
than not that they would be. Id. at 99-100 (explaining that bribe of government official and theft
of military property could occur “in a foreign country or on the high seas”). Finally, and
crucially, when the Court turned to the fraud statute directly at issue in Bowman, it said the
following:
We cannot suppose that when Congress enacted the statute or amended it, it did
not have in mind that a wide field for such frauds upon the government was in
private and public vessels of the United States on the high seas and in foreign
ports and beyond the land jurisdiction of the United States, and therefore intended
to include them in the section.
260 U.S. at 102 (emphasis added). There again, the Court did not replicate its “probable place”
language, instead choosing a phrase the focused on numerosity, not probability.
Al-Imam counters that Bowman’s use of “wide field” must be understood in context. He
says that the Court used that phrase “in a sentence that specifically was about frauds against the
Emergency Fleet Corporation,” Hr’g Tr. (Rough) 38:20-21, which the Court noted would
“engage in [ ] a most extensive ocean transportation business,” and which Congress’s 1918
amendment seemed designed to protect, Bowman, 260 U.S. at 102. Thus, according to Al-
41
Imam, while the Court may have said it was sufficient that a “wide field” of offenses would be
committed abroad, that was only because it was otherwise obvious that the 1918 amendment was
calibrated to apply to a corporation doing business abroad. Not so. Although the Court in
Bowman did emphasize that the 1918 amendment to the statute suggested extraterritorial intent,
it also said the statute reflected the same intent when Congress enacted the statute. Id. (“We
cannot suppose that when Congress enacted the statute or amended it, it did not have in mind
that a wide field for such frauds” would occur “beyond the land jurisdiction of the United
States.” (emphasis added)). This undercuts Al-Imam’s contention that Bowman would have
come out differently absent the statute’s 1918 amendment. See Hr’g Tr. (Rough) 8:20-9:3.
The long and short of this discussion? It would misread Bowman to give priority to its
“probable place” statement, as Al-Imam urges, and Delgado-Garcia’s “many obvious
extraterritorial applications” standard is in fact fully consistent with Bowman. See Opp. at 12
(arguing that Delgado-Garcia’s “many” and “much” phrasings “dovetail[ ] with Bowman’s
analysis of federal offenses that ‘naturally often occur’ overseas or where there was a ‘wide
field’ for the commission of the offense overseas”).
Even so, this particular dispute may be a tempest in a teapot, especially in light of Al-
Imam’s representations at the hearing. While the Court grants there could be a substantive
difference between a “probable place” standard and a “many applications” standard, that would
be true only if the word “probable” is read to mean “more likely than not,” which is at least one
reasonable interpretation of the term. But defense counsel at the hearing disclaimed any
argument to that effect. Analogizing to the standard courts apply to 28 U.S.C. § 2255 motions,
counsel said the government’s burden should not be “to prove that it’s more likely than not,” but
only that there is a “probable likelihood” the offense could be committed extraterritorially. Hr’g
42
Tr. (rough) 5:16-20; id. at 5:21-22 (likening standard to a “rough probability”). When the Court
inquired what made this formulation meaningfully different from the D.C. Circuit’s in Delgado-
Garcia and this Court’s in Abu Khatallah, counsel pivoted to explaining why the use of “many”
in Delgado-Garcia must be read in light of the statute it was considering and cannot be imported
as a standard to be applied to other statutes. Id. at 6:6-8:10:14; see 9:25-10:2 (explaining that
Delgado-Garcia said “many” “in the context of a naturally occurring many, because of the nature
of the crime”). If a statute has “many obvious extraterritorial applications,” however, it strikes
the Court that it would satisfy Al-Imam’s favored “probable likelihood” standard,
notwithstanding the Court’s confusion on what exactly the latter requires.
That leaves Al-Imam’s second criticism of the Court’s analysis of Bowman’s locus test.
Aside from the issue of how Delgado-Garcia employed Bowman in its analysis, and regardless
whether Delgado-Garcia intended its “many” formulations to guide the application of Bowman
in this Circuit, Al-Imam contends this Court erred by making the “many obvious extraterritorial
applications” a sufficient rather than necessary condition for satisfying the Bowman locus
inquiry. MTD at 7 (arguing that the Delgado-Garcia “many” formulations “reflected what was
necessary, but not sufficient, to establish the extraterritoriality of statutes.”). Or, as Al-Imam
puts it in his reply: “these cases must be read as a whole in light of the facts before them, rather
than parsed for specific language into a ‘test’ the cases did not formulate themselves.” Reply at
1. This argument parallels the one Al-Imam made in regard to the citizenship distinction: just as
he argued that the citizenship distinction did not matter in Delgado-Garcia because the statute
was so clearly focused on international conduct, he argues that a statute having “many”
extraterritorial applications was sufficient in Delgado-Garcia only because other contextual
factors also made clear that the statute was intended to guard against international misconduct.
43
Al-Imam is correct that Delgado-Garcia’s determination that the immigration statute at
issue applied extraterritorially did not turn only on the fact that the statute would have many
extraterritorial applications. Rather, the court noted other “contextual feature[s]” of § 1324(a),
including that the statute protected U.S. borders and was “international in focus.” 374 F.3d at
1345. But those considerations are not as distinct as Al-Imam suggests. To the contrary, the fact
that § 1324 had “a great many international applications” was key to the D.C. Circuit’s
conclusion that the statute was “not fundamentally domestic in focus.” Id. at 1348. It is thus
difficult to divorce Delgado-Garcia’s observation that the border-control statute had an
international focus from its observation that it would have many natural extraterritorial
applications. And at the end of the day, that the immigration statute would have many
extraterritorial applications appeared the decisive factor in Delgado-Garcia’s analysis—at least
with respect to the Bowman locus question. The opinion all but said as much: “The border-
control statutes at issue here are ‘not logically dependent on their locality’ in the same sense that
the fraud offense against the United States was not in Bowman: they have many obvious
extraterritorial applications.” Id. at 1346-47.
A closer look at Delgado-Garcia’s explication of Bowman, and at Bowman itself,
confirms that this Court was correct to center the locus inquiry on a statute’s extraterritorial
applications, not on whether it had a domestic or international “focus.” Discussing Bowman,
Delgado-Garcia noted that “[f]raud against the United States does not necessarily concern the
national security and foreign affairs of the United States” and that “there is no obvious reason
why frauds against the United States, simpliciter, would occur overseas.” Id. at 1346. Indeed, a
close look at the statute the Supreme Court considered in Bowman shows, if anything, there
would be more opportunities to violate the statute domestically than abroad. That law made it a
44
crime to make a fraudulent claim “for payment or approval [ ] to or by any person or officer in
the civil, military, or naval service of the United States[.]” Bowman, 260 U.S. at 101 n.1
(quoting the statute). While it is true that the statute’s application to military and navy personnel
provides some indication that Congress foresaw extraterritorial applications—and while the 1918
amendment provided a further clue to its extraterritorial reach—it is doubtless the case that more
civil service and armed forces personnel are stationed domestically than abroad. Nevertheless, it
sufficed in Bowman that a “wide field” of such frauds could occur extraterritorially. 260 U.S. at
102. Delgado-Garcia also emphasized that Bowman “recited several other statutes, not expressly
territorial,” unlike the immigration statute before it, and explained that those statutes “by the very
nature of the crime outlawed [could] be supposed to apply extraterritorially.” 374 F.3d at 1346.
Bowman and Delgado-Garcia therefore make clear that a statute by its terms need not reflect an
international focus to infer that Congress intended it to apply extraterritorially; instead, the key
inquiry is whether, at the time a statute was enacted or amended, it had “many obvious
extraterritorial applications.” Accordingly, this Court disagrees that Abu Khatallah erred by
formulating a test that made the primary “locus” consideration whether the statute would have
many likely extraterritorial applications.
At any rate, the “test” this Court allegedly set forth in Abu Khatallah—which the Court
believes was commanded by Delgado-Garcia and Bowman—did not exclude the other
“contextual features” that Delgado-Garcia highlighted in its extraterritoriality analysis. To the
contrary, it incorporated them. After outlining the two-part extraterritoriality analysis, the Court
continued:
Delgado-Garcia’s “locus” inquiry specifically asks whether a statute “ha[s] many
obvious extraterritorial applications,” id. at 1347, or whether offenders “will often
be outside the United States,” id. As long as such a likelihood existed when the
statute was passed—whether because of the nature of the offense (as in Delgado-
45
Garcia), contingent facts about the United States’s presence abroad, or some
combination thereof—courts may properly infer a congressional intent to permit
extraterritorial uses.
Abu Khatallah, 151 F. Supp. 3d at 129 (footnote omitted); see supra 16-17. The Court’s
reference to the “nature of the offense” indicates that a court could and should consider whether
a given offense, like the one at issue in Delgado-Garcia, is “international in focus,” 374 F.3d at
1345, or is “expressly territorial,” id. at 1346. The Court, however, did not read Delgado-Garcia
and Bowman to suggest such an international focus was a prerequisite for extraterritoriality.
And again, that was for good reason: while the international focus of the border-control statute
before the D.C. Circuit supported its extraterritoriality, there was no such focus evident from the
face of the fraud statute at issue in Bowman, nor was it true of several other statutes that
Bowman opined would apply extraterritorially. What was true in both cases, however, was that
the statutes would naturally have many extraterritorial applications. Delgado-Garcia, 374 F.3d at
1346-47 (“The border-control statutes at issue here are ‘not logically dependent on their locality’
in the same sense that the fraud offense against the United States was not in Bowman: they have
many obvious extraterritorial applications.”). Hence, in Abu Khatallah the Court made clear
that, for a statute to apply extraterritorially, a statute need not evince an international “focus,”
even if such a focus would provide an additional indication that a statute was intended to apply
extraterritorially. Abu Khatallah, 151 F. Supp. 3d at 131 (“Under Delgado-Garcia, a criminal
offense whose most natural or obvious applications are domestic can still be prosecuted abroad if
the law had many obvious extraterritorial applications at the time of enactment.” (internal
quotation marks omitted)).
In sum, then, the Court rejects Al-Imam’s request for the Court to reconsider its
extraterritoriality analysis in Abu Khatallah. And because Al-Imam’s extraterritoriality
46
arguments, beyond the additional ones the Court has just rejected, mirror Abu Khatallah’s, the
Court reaches the same result: each of the statutes under which Al-Imam is charged apply to
extraterritorial conduct. His motion to dismiss those charges for lack of jurisdiction is therefore
denied.
C. Capture and International Law
Al-Imam presses one other argument for dismissal that his alleged co-conspirator, Abu
Khatallah, did not: that the government cannot prosecute him for certain offenses—namely
Counts Three, Ten through Seventeen, and parts of Counts One and Two—covered by
extradition treaties that the government violated through his capture. MTD at 25-28. Two
Supreme Court cases, Ker v. Illinois, 119 U.S. 436, 444 (1886) and Frisbie v. Collins, 342 U.S.
519, 522 (1952), provide the relevant legal backdrop for Al-Imam’s argument. “Under a rule
known as the Ker-Frisbie doctrine, the power of a court to try a person for crime is not impaired
by the fact that he had been brought within the court’s jurisdiction by reason of a forcible
abduction.” United States v. Rezaq, 134 F.3d 1121, 1130 (D.C. Cir. 1998) (internal quotation
marks omitted). One exception to this rule, however, is when “an extradition treaty . . .
provide[s] that it is ‘the only way by which one country may gain custody of a national of the
other country for the purposes of prosecution.’” Id. (quoting United States v. Alvarez-Machain,
504 U.S. 655, 664 (1992)). So if Al-Imam’s abduction here violated the terms of an extradition
treaty, he could not be prosecuted for crimes covered by that treaty.
The United States does not have a bilateral extradition treaty with Libya. Al-Imam
nevertheless contends that his abduction in Libya violated the “prosecute or extradite” regime
established by three multilateral conventions—the Charter of the United Nations (“U.N.
Charter”), the Convention on the Prevention and Punishment of Crimes Against Internationally
47
Protected Persons, Including Diplomatic Agents (“IPP Convention”), and the International
Convention for the Suppression of Terrorist Bombings (“Terrorism Convention”)—that together
require signatories to either extradite defendants like Al-Imam or prosecute them domestically.
MTD at 26. Forcible abduction, Al-Imam says, is not an option. Id. The government’s response
is two-fold. First, it says that none of these treaties are relevant, since none of them are between
the United States and Libya. Opp. at 12. And second, it argues that even assuming that the
multilateral treaties identified by Al-Imam create a presumption in favor of “extradite or
prosecute,” the Supreme Court has already effectively determined that they do not bar an
American prosecution of a foreign national who was forcibly removed from another country. Id.
The Court first will try to explain Al-Imam’s theory. Seemingly admitting that the IPP
Convention and Terrorism Convention do not by their own express terms bar extraterritorial
forcible abductions, Al-Imam argues instead that the relationship between the conventions and
the U.N. Charter accomplishes as much. In his words:
By entering the U.N. Charter, signatory nations agreed in principle to give up
their power to violate the territorial integrity of another nation except under
certain conditions. And by entering into the “extradite or prosecute”
conventions—both of which begin with express references to the U.N. Charter,
and both of which state that they may form the legal basis for an extradition
request—the United States extracted promises from signatory nations to
“extradite or prosecute” persons found in their territory suspected of crimes of
terrorism or against internationally-protected persons, in exchange for adherence
to and promotion of the values found in the U.N. Charter.
MTD at 26. Put simply: the conventions require signatories to either extradite international
terrorists or to prosecute them themselves, and the U.N. Charter, which signatories to the
conventions effectively adopted, prohibits forcible abductions. This functions, according to Al-
Imam, just like a “bilateral extradition treaty [that] expressly forbid[s] forcible abductions,
48
because they are prohibited by the U.N. Charter as incorporated and reflected in the IPP and
Terrorism Conventions.” Id. at 27.
Al-Imam clarifies that he is not asking the Court to conclude that the U.N. Charter is self-
executing or creates privately enforceable rights. He stresses that he is “not asking the Court to
dismiss any charges based on a violation of the U.N. Charter per se,” but rather “is simply
invoking the rule in Alvarez-Machain, 504 U.S. at 662, which stated that ‘our first inquiry must
be whether the abduction of respondent from Mexico violated the Extradition Treaty between the
United States and Mexico.’” Id. And because the IPP and Terrorism Conventions mandate
compliance with the U.N. Charter’s respect for territorial sovereignty, at least as Al-Imam sees
things, his abduction violates those conventions and precludes his prosecution on the offenses
covered by the conventions.
The government responds that Alvarez-Machain compels a result in its favor. In that
case, the U.S. government orchestrated the abduction of a Mexican citizen who participated in a
kidnapping and murder of a DEA agent in Mexico. Alvarez-Machain, 504 U.S. at 657. When
forced to face trial, the Mexican citizen claimed that his abduction violated a U.S.-Mexico
extradition treaty. Id. at 658. Although the treaty did not expressly prohibit abductions, the
defendant argued, and a lower court agreed, that the treaty “would be frustrated if either nation
were free to abduct nationals of the other nation for the purposes of prosecution.” Id. at 664.
The Supreme Court reversed. The Court explained that, although the treaty “provides a
mechanism which would not otherwise exist”—namely, a systematic extradition process—the
treaty did not “purport to specify the only way in which one country may gain custody of a
national of the other country for the purposes of prosecution.” Id. at 665 (emphasis added).
49
The Court also rejected the defendant’s argument that, even if the treaty lacked an
express prohibition on forcible abductions, the Court should imply a term to that effect. Similar
to Al-Imam’s argument here, he argued that the treaty should be “interpreted against the
backdrop of customary international law,” including reference to the U.N. Charter, which “so
clearly prohibit[s]” forcible abductions “that there was no reason to include such a clause in the
treaty itself.” Id. at 666 (internal quotation marks omitted). The Supreme Court was
unconvinced. The defendant’s argument was undermined in particular by the fact that the
“support [he] garner[ed] from international law [did not] relate[ ] to the practice of nations in
relation to extradition treaties.” Id. at 667. “Respondent would have us find that the Treaty acts
as a prohibition against a violation of the general principle of international law that one
government may not exercise its police power in the territory of another state.” Id. (internal
quotation marks omitted). Although “[t]here are many actions which would be taken by a nation
that would violate this principle, including waging war,” the Court said “it cannot seriously be
contended that an invasion of the United States by Mexico would violate the terms” of the
bilateral extradition treaty. Id. Yet Al-Imam appears to contend that very point. Without
identifying a specific provision in the U.N. Charter, he asserts that the Charter’s signatories
“agreed in principle to give up their power to violate the territorial integrity of another nation
except under certain conditions.” MTD at 26. And because the conventions cited the U.N.
Charter as the “premise” for their agreements, those agreements now effectively contain the
Charter’s prohibition on territorial violations. Reply at 11. It seems the same conclusion the
Supreme Court reached in Alvarez-Machain should follow: the fact that many actions might
violate the territorial integrity principle embodied in the U.N. Charter does not mean that those
actions automatically violate an extradition treaty.
50
Al-Imam nevertheless insists that one key distinction wriggles this case free from
Alvarez-Machain’s grasp. There, the defendant asked the Court to imply a no-abduction term
into the U.S.-Mexico treaty by reading the treaty “against the backdrop of customary
international law,” as reflected by, among other things, the U.N. Charter. 504 U.S. at 666. Here,
by contrast, the conventions themselves make explicit reference to the U.N. Charter, which Al-
Imam contends effectively incorporated the U.N. Charter into the conventions. Reply at 11
(“Unlike the U.S.-Mexico treaty . . . the conventions cited by Al-Imam expressly refer to the
U.N. Charter as a premise for their respective agreements.”); id. at 14 (“[T]he conventions
identify themselves as extradition treaties and expressly connect the principles of the U.N.
Charter to the ‘prosecute or extradite’ regime they establish[.]”). What is more, according to Al-
Imam, the Terrorism Convention “enshrine[s] the principle of territorial sovereignty into three
different articles,” Reply at 12, including one that provides that the parties will “carry out their
obligations under the Convention” consistently “with the principles of sovereign equality and
territorial integrity,” Terrorism Convention, Article 17.13 By his reading, then, the conventions’
incorporation of the U.N. Charter and the Terrorism Convention’s explicit reference to territorial
integrity supply what was missing in Alvarez-Machain: the “additional requirement” that parties
to the conventions “respect[ ] the territorial integrity of all signatories.” MTD at 28.
The Court disagrees. To start, it is unclear whether the conventions’ references to the
U.N. Charter suffice to “incorporate” the Charter, such that violations of the Charter ipso facto
constitute violations of the conventions. See id.; see also Reply at 12 (discussing conventions’
use of phrases like “having in mind the purposes and principles of the Charter of the United
13
Available at https://www.state.gov/documents/organization/282340.pdf
51
States”). Although Al-Imam admits that the IPP’s “incorporation of territorial sovereignty” is
“opaque,” id., he contends that the Terrorism Convention is perfectly explicit on this point,
noting one provision discussing the “territorial integrity of States” and another assuring that the
Convention’s dictates do not conflict with “the Charter of the United Nations and international
humanitarian law.” Id. at 13. Even so, the Court seriously doubts the proposition that these
statements are enough to make a violation of the U.N. Charter, or specific provisions of it, a
violation of the Conventions.
But the Court need not resolve that doubt. For even if the Charter were incorporated into
the IPP and Terrorism Conventions, that distinction does not remove this case from Alvarez-
Machain’s orbit. The Court in Alvarez-Machain did not, as Al-Imam seems to suggest, reject the
defendant’s argument about “customary international law” and the U.N. Charter simply because
it was not explicitly incorporated into the bilateral extradition treaty. To the contrary, it rejected
that argument for the reason highlighted above: the “general principle of international law that
one government may not exercise its police power in the territory of another state” did not
“relate[ ] to the practice of nations in relation to extradition treaties.” Alvarez-Machain, 504
U.S. at 667. Nothing in the Court’s analysis suggests that its reasoning would have been any
different had the U.S.-Mexico treaty, like the IPP and Terrorism Conventions, included a
statement that it “had in mind” the principles enshrined in the U.N. Charter or that it was not
disturbing any of those principles. The Alvarez-Machain Court considered customary
international law principles, including those codified in the U.N. Charter; it just found nothing in
them to suggest that a forcible abduction must be considered a violation of an extradition treaty.
Al-Imam responds that, however general the principle of respect for territorial integrity may be
in a vacuum, it should be understood as a bar to forcible abductions when it is included in an
52
extradition treaty. Reply at 14 (“[T]he conventions identify themselves as extradition treaties
and expressly connect the principles of the U.N. Charter to the ‘prosecute or extradite’ regime
they establish[.]”). But the Court is not convinced that the U.N. Charter’s general respect for
territorial integrity transforms into a specific prohibition on abductions any time it is alluded to
in an extradition treaty. Nor does the Terrorism Convention’s promise that signatories will act
consistently with “the principles of sovereign equality and territorial integrity” function as such a
prohibition.
Al-Imam in reply offers one other distinction between this case and Alvarez-Machain.
He notes that the IPP and Terrorism Conventions, unlike the U.S.-Mexico treaty, contain
arbitration provisions binding signatories to handle disputes that arise under the conventions.
Reply at 16-17 (“Obviously, it would make no sense for two parties to contract to a binding
arbitration process, but permit that process to be subverted by the simple expedient of allowing
one party to invade the other and capture the subjects of the arbitration.”). But this is little more
than a variant of the argument, rejected by the Court in Alvarez-Machain, that an extradition
treaty’s purpose would be frustrated if a signatory to the treaty could use means other than
extradition to subject a foreign national to trial. See 504 U.S. at 664. The arbitration provisions
in the conventions may well still serve a purpose; if a party believes the conventions require
extradition, and for various reasons that party thinks that extradition is either its best or its only
option to bring a suspected terrorist to justice, they may compel the other nation to arbitrate their
claim. In any event, as in Alvarez-Machain, the creation of one legal mechanism for achieving a
signatory’s end goal does not necessarily imply the illegality of all others. See 504 U.S. at 665.
53
For all these reasons, the Court concludes that Alvarez-Machain controls and forecloses
Al-Imam’s Ker-Frisbie argument. Accordingly, the Court will deny his motion to dismiss
Counts Three, Ten through Seventeen, and parts of Counts One and Two on that basis.
D. Federal Facilities
Al-Imam’s final argument is identical to one considered and rejected by the Court in Abu
Khatallah—that Counts Ten through Fifteen must be dismissed because the Mission and Annex
were not lawfully operated federal facilities. Compare MTD at 28-31 with Mot. Dismiss Counts
Ten Through Fifteen, ECF No. 90, Abu Khatallah, 14-cr-141. Given no reason to revise its
reasoning in Abu Khatallah, the Court adopts it here in slightly modified form.
Al-Imam argues that the Mission and Annex were neither “federal facilities” nor “U.S.
Property” for purposes of those statutes because they were not lawfully owned or leased under
certain treaties requiring consent of the host State to establish diplomatic posts. The Government
counters that it is entitled to present evidence at trial as to each element of the offenses
charged—and therefore that Al-Imam’s argument is premature and unsuited to a motion to
dismiss an indictment—and that it would be inappropriate to “import the terms of an
international treaty to amend clearly worded statutory definitions in U.S. criminal statutes.”
Opp. at 39. Because the treaties Al-Imam cites do not apply to the Mission or Annex, the Court
will deny his motion to dismiss these counts.
1. Statutory Background
Section 930(c) prohibits “kill[ing] any person . . . in the course of an attack on a Federal
facility involving the use of a firearm or other dangerous weapon [and] attempt[ing] or
conspir[ing] to do such an act.” 18 U.S.C. § 930(c). Section 930(g)(1) defines “Federal
facility” as “a building or part thereof owned or leased by the Federal Government, where
54
Federal employees are regularly present for the purpose of performing their official duties.” 18
U.S.C. § 930(g)(1).
Section 844(f) prohibits “maliciously damag[ing] or destroy[ing], or attempt[ing] [to do
so], by means of fire or an explosive, any building, vehicle, or other personal or real property in
whole or in part owned or possessed by, or leased to, the United States, or any department or
agency thereof.” 18 U.S.C. § 844(f)(1). Subsection (f)(3) provides for the death penalty or a
sentence of twenty years to life for any person who “directly or proximately causes the death of
any person” while engaging in conduct prohibited by subsection (f).
2. The Parties’ Arguments
Al-Imam begins his argument with the observation that “[i]mplicit in [the] statutes is a
presumption that the government acts within the larger legal framework established by Congress,
abiding by treaties it has enacted.” MTD at 24. The governing treaties here, he contends, are the
Vienna Convention on Consular Relations and Optional Protocol on Disputes and the Vienna
Convention on Diplomatic Relations and Optional Protocol on Disputes (the “Vienna
Conventions”), which “require mutual consent for the establishment of any diplomatic post (not
just permanent ones),” id. at 22 (citing Vienna Convention on Consular Relations and Optional
Protocol on Disputes art. 2, Apr. 24, 1963, 21 U.S.T. 77; Vienna Convention on Diplomatic
Relations and Optional Protocol on Disputes art. 2, Apr. 18, 1961, 23 U.S.T. 3227).14 Al-Imam
maintains that because the United States never sought such consent from the TNC to establish
14
Al-Imam finds support for his reading of the Vienna Conventions in the State
Department’s Foreign Affairs Manual. See MTD at 29 (“When a decision to open a post has
been reached, the acceptance of the foreign government is necessary and must precede any
public disclosure of the proposed action.” (quoting 2 Foreign Affairs Manual § 422.1-1,
http://www.state.gov/documents/organization/210051.pdf)).
55
the Mission or Annex, the Mission and Annex were not lawfully possessed, leased, or owned by
the United States, and therefore did not constitute federal facilities or U.S. property under
§ 930(g) and § 844(f).
The Government counters that these statutes should not be read to incorporate treaty
requirements found nowhere in the statutory text because “federal crimes . . . are solely the
creatures of statute,” and Congress is entrusted with designating elements of federal criminal
offenses. Opp. at 40 (quoting Staples v. United States, 511 U.S. 600, 604 (1994)). The
Government also makes two alternative arguments: first, that even if treaties can inform
interpretation of the statutes, the Vienna Conventions are not in play here because they pertain
only to facilities the Government seeks to have recognized as permanent diplomatic or consular
facilities, and second, that Al-Imam’s argument is an inappropriate basis for a motion to dismiss
because the indictment is legally sufficient and the Government is entitled to an opportunity to
prove all elements of the offenses charged at trial.
3. Applicability of the Vienna Conventions
As multilateral treaties, the Vienna Conventions “are contracts between sovereigns,
[which] should be construed to give effect to the intent of the signatories.” Gonzalez Paredes v.
Vila, 479 F. Supp. 2d 187, 191 (D.D.C. 2007) (quoting Tabion v. Mufti, 73 F.3d 535, 537 (4th
Cir. 1996)) (internal quotation mark omitted). Courts discern signatories’ intent “in accordance
with the ordinary meaning to be given to the terms of the treaty in their context and in light of
[the treaty’s] object and purpose.” Id. (quoting Logan v. Dupuis, 990 F. Supp. 26, 29 (D.D.C.
1997)) (citing Vienna Convention on the Law of Treaties art. 31(1), May 23, 1969, 1155
U.N.T.S. 331).
56
The Court need not delve into the Government’s contention that criminal laws are
“creatures of statute” that should never be read in light of international law. See Murray v.
Schooner Charming Betsy, 6 U.S. (2 Cranch) 62 (1804) (“[A]n act of Congress ought never to be
construed to violate the law of nations if any other possible construction remains.”). That is so
because the Court sees no tension between the two in this case. Application of the statutes at
issue to the Mission and Annex does not violate the Vienna Conventions because those
conventions do not bear on what constitutes a federal facility under § 930(g)(1) or U.S. property
under § 844(f)(1).
The treaties require mutual consent for the “establishment of consular relations,” Vienna
Convention on Consular Relations and Optional Protocol on Disputes art. 2, Apr. 24, 1963, 21
U.S.T. 77 (emphasis added), and the “establishment of diplomatic relations . . . and of permanent
diplomatic missions,” Vienna Convention on Diplomatic Relations and Optional Protocol
Disputes art. 2, Apr. 18, 1961, 23 U.S.T. 3227 (emphases added). The establishment of consular
or diplomatic relations with a foreign state is distinct from the U.S. Government’s owning or
leasing “a building or part thereof . . . where Federal employees are regularly present for the
purpose of performing their official duties,” 18 U.S.C. § 930(g)(1), or owning, possessing, or
leasing, “in whole or in part,” “any building, vehicle, or other personal or real property,” 18
U.S.C. § 844(f)(1).15 The U.S. Government could establish a federal facility or own, possess, or
15
Articles 12 and 23 of the Vienna Convention on Diplomatic Relations, which Al-Imam
also cites, see MTD at 29, are not to the contrary. Article 12 provides that “[t]he sending State
may not, without the prior express consent of the receiving State, establish offices forming part
of the [diplomatic] mission in localities other than those in which the mission itself is
established.” Vienna Convention on Diplomatic Relations and Optional Protocol Disputes art.
12, Apr. 18, 1961, 23 U.S.T. 3227. To the extent this article applies to the Mission and Annex,
the most it could do would be to call into question their status as parts of the United States’s
diplomatic mission in Libya. It would not affect their status as federal facilities or U.S. property
57
lease U.S. property recognized as such by these statutes irrespective of whether it used the
facility or property in furtherance of diplomatic or consular relations.
Furthermore, the establishment of permanent diplomatic or consular relations is distinct
from the use of nonpermanent locations for temporary diplomatic purposes. See Tachiona ex rel.
Tachiona v. Mugabe, 186 F. Supp. 2d 383, 387 (S.D.N.Y. 2002) (“The genesis and negotiating
history of the Vienna Convention [on Diplomatic Relations] make clear that the purpose the
treaty intended to address was the codification of rules governing diplomatic relations between
sovereign states and the organization and functioning of permanent diplomatic missions in states
with established relations.”). And the indictment and Al-Imam’s motion to dismiss make clear
that neither the Mission nor the Annex was intended to be a “permanent diplomatic mission.”
The U.S. Embassy in Libya was located in Tripoli until the State Department suspended
operations and evacuated personnel in February 2011. When the United States sought to
reestablish an American presence in Libya a few months later in April 2011, it sent Special
Envoy Stevens to Benghazi, and then set up a “U.S. Special Mission” and an annex building
there in late 2011. Indictment ¶¶ 5–6. Within six months, Stevens had returned to Tripoli as the
U.S. Ambassador to Libya, though he was present, and was killed, in Benghazi during the attack.
Id.
Al-Imam appears not to dispute that the Special Mission in Benghazi was established as a
temporary concern. The State Department report that he cites for support, MTD at 29-30,
describes the Mission’s staffing as “short-term” and “transitory,” Accountability Review Bd.,
under U.S. law. Article 23 is even less applicable to the question before the Court as it concerns
diplomatic missions’ exemption from local taxes. See id. art. 23.
58
U.S. Dep’t of State, Benghazi Attack Report 14 (Unclassified) (2012),16 noting that the Mission
“was never a consulate and never formally notified to the Libyan government,” id. at 14-15.
The bipartisan Senate intelligence report on the attacks, issued in January 2014, likewise
characterizes the Mission as nonpermanent, using the term “U.S. Temporary Mission Facility.”
U.S. Senate Select Comm. Intelligence, Review of the Terrorist Attacks on U.S. Facilities in
Benghazi, Libya, September 11-12, 2012, at 4 (2014), http://www.intelligence.senate.gov
/sites/default/files/press/benghazi.pdf. And commentators have hypothesized that part of the
reason the attack was so devastating was the mission’s “confusing legal status”: “It wasn’t an
embassy or even an official consulate; it was so off-book that the Libyan government was never
officially notified of its existence. This put the mission outside the normal State Department
procedures used to allocate security funding and personnel.” Zack Beauchamp, 9 Questions
About Benghazi You Were Too Embarrassed to Ask, Vox (Oct. 12, 2015, 9:00 AM),
http://www.vox.com/2015/10/12/9489389/benghazi-explained. While this account may bolster
Al-Imam’s argument that the United State never obtained consent from the TNC to establish the
Mission or Annex, it demonstrates that such consent was not required under the Vienna
Conventions given the transitory nature of the posts.
Moreover, as the Government points out, it would make little sense for a foreign state to
have veto power over the protections these statutes afford federal employees working in federal
facilities. While requiring the host state’s consent to establish diplomatic or consular relations or
permanent diplomatic facilities is consistent with the purposes of diplomacy and international
cooperation, limiting the scope of a U.S. criminal statute designed to protect federal workers,
16
Available at http://www.state.gov/documents/organization/202446.pdf
59
whether within U.S. boundaries or abroad, subverts Americans’ safety to the decision of a
foreign state.
The Government also urges the Court to reject Al-Imam’s Vienna Convention argument
because it presents a challenge to the sufficiency of the evidence, which the Government is
entitled to establish at trial. The Government does not explicitly concede that it did not seek or
obtain consent from the TNC to set up or operate the posts, but it also does not directly refute Al-
Imam’s claim that it never made the recognized Libyan Government aware of the locations. It
focuses instead on the inapplicability of the treaties.
As discussed above, however, resolution of the questions before the Court does not turn
on the Mission’s or Annex’s status under the Vienna Conventions. Rather, the Court is able to
determine as a matter of law that, whether or not the United States obtained consent from the
TNC to set up the Mission and Annex, the Vienna Conventions do not bear on those entities’
status as federal facilities or U.S. property. The Court may therefore address Al-Imam’s
argument at this stage. See United States v. Yakou, 428 F.3d 241, 247 (D.C. Cir. 2005) (noting
that the D.C. Circuit “has upheld a pretrial dismissal of counts of an indictment based on a
question of law”) (citing United States v. Espy, 145 F.3d 1369, 1370 (D.C. Cir. 1998)).
IV. Conclusion
For the foregoing reasons, the Court will deny [51] Defendant’s Motion to Dismiss
Counts One Through Seventeen. A separate Order shall accompany this memorandum opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: March 14, 2019
60