U.S. STATUTES & JURISDICTION

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Chapter 3
U.S. STATUTES & JURISDICTION
SYNOPSIS
§ 3.01 U.S. Statutes Related to Terrorism
§ 3.02 Extraterritorial Application of U.S. Law
§ 3.03 Foreign Capture and Treatment of Suspects
[A] Abduction for Trial
[B] Mistreatment of Prisoners on Foreign Soil
[C] Extraordinary Renditions and Interrogation
§ 3.04 Private Actions Against Terrorist Activity
[A] Alien Tort Claims and International Law
[B] State Sponsors of Terrorism
[C] Claims Against Nonstate Actors
Terrorism is hardly a new phenomenon. Some historians claim that it has always been a part of
human attempts to subdue a population.1 The character and frequency of terrorist activity adapted
in the late 20th Century to take advantage of mass media and instant global communications, but
the basic phenomenon is no different than it was 3,000 years ago and is not likely to be any
different in the next millennium.2
Certainly, there is no reason to believe that it can be eliminated from common experience, no
more than can be other crimes of violence or other activities on which governments have “declared
war” such as drug trafficking. It should be apparent by now that when politicians declare war on
drugs or poverty or terrorism, they are not using “war” as a term of art. It is just a statement of
seriousness of intent, not appropriately used as a calling into play of specific tools. One reality that
must be borne in mind is that clandestine organizations are not amenable to brute force. In fact,
the “war” on terrorism has splintered groups and made new converts to an increasingly diffuse and
disconnected collection of terrorism adherents, requiring that the forces of law and order
themselves respond with clandestine and cunning.3
[58/59]
Taking the metaphorical language of warfare out of the terrorism discussion, it might be helpful
to review what the ordinary mechanisms of public safety and law enforcement offer in the way of
prevention and control of terrorist activity. This article reviews the tools available both to security
planners and prosecutors in the struggle against terrorism.
The story of U.S. involvement with terrorism really begins with the post-Civil War statutes
aimed at the Ku Klux Klan, but the story of domestic terrorism is slightly different from the
prosecutions and statutes involving “international terrorism.” As a subset of U.S. law, international
terrorism begins with response to airplane hijackings in the 1970s.
§ 3.01 U.S. STATUTES RELATED TO TERRORISM
There is no criminal offense of terrorism in U.S. federal law. U.S. statutes do contain several
definitions of terrorism, the impacts of which are either procedural, investigation authorization, or
punishment enhancement. On the other hand, like many nations, the U.S. has dozens of statutes
that address specific actions that might be taken by terrorists, such as use of explosives, murder,
and the like. The U.S., also like many other nations, has statutes that criminalize conduct covered
by several international conventions.
The U.S. passed the Aircraft Piracy4 and Hostage Taking5 statutes in response to treaty
obligations entered into during the 1970s. Of particular interest is that under both statutes, if the
offense results in the death of another person, U.S. law provides for imposition of the death penalty.
This runs counter to the attitudes of most Western nations and makes it difficult for the U.S. to
obtain extradition of persons from countries that object to the death penalty.6
The Omnibus Diplomatic Security and Antiterrorism Act of 1986 produced what is now 18
U.S.C. § 2332, which sets penalties for murder or manslaughter in the case of anyone who “kills a
national of the United States, while such national is outside the United States.” The statute goes
on to state that
[n]o prosecution for any offense described in this section shall be undertaken by the United
States except on written certification of the Attorney General or the highest ranking
subordinate of the Attorney General with responsibility for criminal prosecutions
that, [59/60]in the judgment of the certifying official, such offense was intended to coerce,
intimidate, or retaliate against a government or a civilian population.7
This provision raises a host of questions. What is the point of the limitation to murder committed
for the purpose of coercion, intimidation, or retaliation? And if the concern was over diplomatic
officials, why apply it to any U.S. national? For that matter, why the need for a special statute
applying to homicide of a U.S. national in the first place?
The last question sets up some of the other issues. For reasons unique to federalism, the U.S.
could not have a general homicide statute.8
Therefore, a statute applying to acts committed outside the U.S. makes sense, and there is
nothing in international law to prevent the U.S. from asserting adjudicative jurisdiction over the
murder of a U.S. national by a foreign national in a foreign country.9 But in that situation, an
extradition treaty typically would not require the foreign country to deliver up their national for
trial in a U.S. court because extradition treaties often exempt nationals of the requested nation or
at least acknowledge discretion to refuse delivery. Even extradition pursuant to international
conventions on specific offenses such as aircraft hijacking or torture will give the requested nation
an option of extraditing or placing the suspect on trial in its own courts. If the U.S. could obtain
custody of the defendant on the high seas or in a third country, then extradition would not be an
issue. And if the U.S. could obtain custody and transport the defendant to the U.S. from within that
person’s domicile nation (jurisdiction by abduction), then the question would be whether an
existing treaty prevented abduction of a national from that country.10
What the special statute provides is a basis for being clear that the crime is covered by U.S. law
and triggers rights of the U.S. to obtain extradition under the Convention on the Prevention and
Punishment of Crimes Against Internationally Protected Persons.11 In return, the U.S. must
criminalize attacks on internationally protected persons of other countries while on U.S.
soil.12 Perhaps the U.S. chose to cover any U.S. national simply to avoid [60/61]a potential difficulty
of showing the requisite jurisdictional facts in a given case.
That still leaves the question of why require the Attorney General’s certification of a political
motivation for the crime. A separate statute already applies the same penalties to anyone who
commits murder or manslaughter of an officer or employee of the U.S. government while in the
course of his or her duties.13 Prosecutors always prefer the ability to charge multiple crimes from
the same acts for a variety of reasons having to do with negotiation strategy, enhancement of
sentences, and the like, but the certification acts to limit that discretion.14 The legislative history
of this provision shows that the certification is designed to prevent the statute’s application to
“ordinary” crime.15 In the extradition context, it also provides assurance to the requested country
that extradition is not sought lightly, that the suspect is believed to be part of a larger scheme or
organization.
The Antiterrorism and Effective Death Penalty Act of 1996 was the next major statutory
enactment of the U.S. in this field. It produced what is now 18 U.S.C. § 2332b, “Acts of terrorism
transcending national boundaries.” This statute has the appearance of being the quintessential
statement of U.S. criminal policy toward terrorism, but it contains a very curious anomaly. There
is a specific definition of “Federal Crime of Terrorism” that does not have any effect on the
definition of a crime.16 Other portions of section 2332b make it an offense to engage in violence
under any of several circumstances that would trigger U.S. extraterritorial jurisdiction without
regard to whether there is any political motivation element in the defendant’s conduct. Section
2339A (providing material support to terrorists) proscribes provision of goods and services
“knowing or intending that they [61/62]are to be used” in the commission of specified crimes, none
of which is itself dependent on the definition in 2332b. Section 2339B (providing material support
to designated foreign terrorist organization) proscribes provision of goods or services to any
organization designated by the Secretary of State under 8 U.S.C. § 1189, which refers in turn to
this succinct definition used for the purpose of designating terrorist organizations:
the term “terrorism” means premeditated, politically motivated violence perpetrated
against noncombatant targets by subnational groups or clandestine agents.17
The State Department definition (§ 2656) is probably the easiest to apply, consisting as it does
of four discrete elements: violence, civilian targets, clandestine perpetrator, and political
motivation. Setting aside the relevance of political motivation for the moment, the point remains
that the § 2656 definition is picked up in only one criminal statute (§ 2339B) and there only
indirectly as the mechanism for designation of an organization by the Secretary of State.
So what is the point of the definition in § 2332b? It defines a category of offense over which the
“Attorney General shall have primary investigative responsibility,” but its only other use is in the
Sentencing Guidelines promulgated by the Federal Sentencing Commission. There we find that
the sentence upon conviction of an offense under some other provision of federal law will be
enhanced if the judge determines that the predicate offense “involved, or was intended to promote”
a “federal crime of terrorism.”18 The courts of appeals are uniform in holding that if the defendant’s
conduct has the effect of promoting a “federal crime of terrorism,” then sentencing enhancement
is warranted even though the defendant pleaded to a different charge.19
Given the lack of statutory use of the § 2332b definition, what statutory definitions of offenses
do apply? As indicated above, there are the “providing support” statutes (§ 2339A and § 2339B),
there are a wealth of federal statutes that do not depend in any degree on political motivation or
other elements of terrorism (all those dealing with air piracy, explosives, kidnaping, chemical
weapons, and the like that are listed in § 2332b), and there is one statute dealing with torture which
applies to any U.S. national or person found in the U.S. who committed the defined offense of
torture while outside the U.S.20
[62/63]
The truth of the matter is that, except for the two statutes dealing with providing support to
terrorists or terrorist organizations, U.S. law does not depend on the definition of terrorism. U.S.
law deals with offenses of violence without regard to the motivation or the type of organization
involved. In most instances, this is a perfectly acceptable position. The U.S. jurisdictional statutes
that apply to crimes of violence depend instead upon use of interstate commerce or threats to U.S.
interests.21
There are very limited reasons why we should have any interest in defining “terrorism” as an
offense separate and apart from the crimes of violence that are already framed in federal law. One
would be to invoke “universal” jurisdiction if the international regime were to settle on a definition
of terrorism that equated it with piracy or slavery for that purpose,22 but the U.S. extraterritorial
jurisdiction statutes already provide rather ample bases of jurisdiction. A second reason in federal
law is to provide for a variety of noncriminal sanctions, such as freezing or forfeiture of assets.
There are two less technical and more “political” reasons for settling on a definition, to promote
international prosecution of terrorism and to distinguish terrorist actions from “ordinary” mass or
serial killers.23
[63/64]
§ 3.02 EXTRATERRITORIAL APPLICATION OF U.S. LAW
United States v. Yunis24 appears to be the earliest reported appellate decision in which the United
States pursued and prosecuted an incident of international terrorism. Yunis was acting as part of a
rogue Lebanese organization calling itself the Amal Militia, which objected to the presence of
Palestinian refugees in Lebanon. He and four colleagues hijacked a Royal Jordanian Airlines flight
out of Beirut in 1985 and tried to fly to Tunis to draw attention to their issues at a meeting of the
Arab League. They were blocked from landing in Tunis, then refueled in Palermo, tried again to
land in Tunis, stopped again in Cyprus, and returned to Beirut, where more militia members came
aboard. The plane then took off for Syria but was turned away and went back to Beirut. “There,
the hijackers released the passengers, held a press conference reiterating their demand that
Palestinians leave Lebanon, blew up the plane, and fled from the airport.”25
The FBI identified Yunis as the ringleader, lured him to a yacht in the Mediterranean with a
bogus drug deal, flew him back to the U.S., and put him on trial. He was convicted of conspiracy,
aircraft piracy, and hostage-taking. He admitted his role in the incident. His principal contentions
on appeal were lack of extraterritorial jurisdiction and that the circumstances of his apprehension
constituted a denial of due process.
With regard to extraterritoriality, the Hostage-Taking Act specifically applied to conduct outside
the U.S. if either the hostage or the offender were a U.S. citizen. Because two U.S. citizens were
on the flight, the statutory elements were satisfied but Yunis argued that international law required
that the hostages be taken because of their citizenship. The court did not pause to determine the
truth of that statement because it did not believe that international law would prevail in any event.
Yunis seeks to portray international law as a self-executing code that trumps domestic
law whenever the two conflict. That effort misconceives the role of judges as appliers of
international law and as participants in the federal system. Our duty is to enforce the
Constitution, laws, and treaties of the United States, not to conform the law of the land to
norms of customary international law…. To be sure, courts should hesitate to give penal
statutes extraterritorial effect absent a clear congressional directive. Similarly, courts will
not blind themselves to potential violations of international law where legislative intent is
ambiguous. But the statute in question reflects an unmistakable congressional intent,
consistent with treaty obligations of the United States, to authorize prosecution of those
who take Americans hostage abroad no matter where the offense occurs or where the
offender is found.26
[64/65]
Similarly, Yunis argued that both the Hostage-Taking and Hijacking statutes applied only if the
offender were “found in” the United States and not if he were “brought to” the United States
specifically for the purpose of trial. The court rejected this argument because neither statute
contained language precluding extraterritorial apprehension, while also noting that at least air
piracy and perhaps hostage-taking as well may be recognized internationally as crimes of universal
jurisdiction.27
The Yunis court did not engage in an extensive discussion of extraterritorial jurisdiction. It relied
on the U.S. nationality of victims, what is sometimes alliteratively called the “passive personality
principle” but more descriptively would be “victim nationality,” as well as on the more
controversial concept of “universal jurisdiction.”
“Victim nationality” raises the question of whether “ordinary” violence against a U.S. national
abroad will be subject to the extraterritorial jurisdiction of a U.S. court, the issue to which the
prosecutorial limitation of § 2332 is addressed. Consistently with some commentary in the
Restatement, the Ninth Circuit read “victim nationality” rather narrowly in dictum while upholding
jurisdiction over defendants who were prosecuted for a drug-related murder of a U.S. citizen in
Mexico.28 The same court then explained that more than victim nationality will be at stake when
elements of the “general and maritime jurisdiction” statute are met, because then there will be
effects on either the territory or the interests of the U.S.29
Universal jurisdiction is hinged on the thought that some crimes are so heinous or so established
as offenses against all peoples (erga omnes), that any nation acquiring power over the offender
can punish the offense. The idea of universal jurisdiction is closely related to the emerging notion
of [65/66]“international crimes” and has not yet received wide acceptance outside the domain of
treaty law defining specific crimes that all member nations are required to criminalize.30
The basic concepts are reasonably well-established in U.S. law, although there are nuances of
difference in some of the authorities’ description of them. Courts have described five different
bases of extraterritorial jurisdiction;31 in addition to universal and victim nationality (the two
in Yunis), criminal jurisdiction could be based on the nationality of the offender, effects felt within
the prosecuting nation, or “protective jurisdiction” to address harms to interests or possessions of
the prosecuting nation.
There is a rather different approach to the issue in Restatement (third) of Foreign Relations Law
of the United States § 402:
Subject to § 403, a state has jurisdiction to prescribe law with respect to:
(1) (a) conduct that, wholly or in substantial part, takes place within its territory;
(b) the status of persons, or interests in things, present within its territory;
(c) conduct outside its territory that has or is intended to have substantial effect within
its territory;
(2) the activities, interests, status, or relations of its nationals outside as well as within its
territory; and
(3) certain conduct outside its territory by persons not its nationals that is directed against
the security of the state or against a limited class of other state interests.
Section 403 exempts offenses that would otherwise be subject to extraterritorial jurisdiction but
whose prosecution would be “unreasonable” in light of such factors as expectations in the
international community or interference with the interests of another state.
The Restatement does not seem to authorize “universal” jurisdiction, and the other four headings
of extraterritorial jurisdiction are framed by the Restatement in slightly different terms than they
are by the courts, but the total effect is similar: actions within the territory or having an effect
within the territory, actions that affect national interests, actions by or against nationals.
Similarly, 18 USC § 7 defines “special maritime and territorial jurisdiction of the United States”
to include such areas as the high seas, vessels and vehicles registered in the U.S. or owned by
U.S. [66/67]citizens, military installations within the U.S., and diplomatic or consular properties
overseas. It also includes
(7) Any place outside the jurisdiction of any nation with respect to an offense by or against
a national of the United States.
(8) To the extent permitted by international law, any foreign vessel during a voyage having
a scheduled departure from or arrival in the United States with respect to an offense
committed by or against a national of the United States.
Subsection 8 is the only provision limited by the language “to the extent permitted by
international law.” Although some of the special statutes related to terrorism refer back to 18 USC
§ 7, most of them also carry their own jurisdictional statements. The combination can make for
very confusing efforts …
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