The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
On November 7, 2008, pirates attacked and seized the M/V CEC Future as it was sailing in the Gulf of Aden, near the Horn of Africa. They held the ship and its crew hostage in order to secure a ransom from Clipper Group A/S, the ship's owner. Clipper paid $1.7 million on January 14, 2009, and the pirates disembarked the ship over the following two days.
The hijacking of the CEC Future was typical of a relatively recent phenomenon: "Somali pirate attacks, designed to seize a merchant ship and then return with the vessel and its crew to Somalia, where a ransom would be negotiated and secured." United States v. Dire, 680 F.3d 446, 450 (4th Cir. 2012), aff'g United States v. Hasan, 747 F. Supp. 2d 599 (E.D.Va. 2010). But piracy, of course, is nothing new. "'[F]or centuries, pirates have been universally condemned as hostis humani generis-enemies of all mankind-because they attack vessels on the high seas, and thus outside of any nation's territorial jurisdiction, . . . with devastating effect to global commerce and navigation.'" Id. at 454 (quoting Hasan, 747 F. Supp. 2d at 602).
Yet, contemporary prosecutions of pirates present novel legal questions.*fn1 The allegations of this case reveal why: Defendant Ali Mohamed Ali, a Somali citizen, is accused of helping Somali pirates hijack a Bahamian ship, hold its Russian, Georgian, and Estonian crew hostage, and compel the ship's Danish owners to pay a ransom for its release. Ali boarded the CEC Future two days after it was taken by the pirates. An English-speaker, he communicated the pirates' demands to Clipper representatives during the remaining sixty-nine days while the vessel was held and departed the ship after the ransom was received. Ali was arrested by United States authorities more than two years later when, en route from Somalia to attend an educational conference in Raleigh, North Carolina, he landed at Dulles International Airport.*fn2
The indictment alleges conspiracy to commit piracy under 18 U.S.C. §§ 1651, 371 (Count One); piracy and aiding and abetting under 18 U.S.C. §§ 1651, 2 (Count Two); conspiracy to commit hostage taking under 18 U.S.C. § 1203 (Count Three);*fn3 and hostage taking and aiding and abetting under 18 U.S.C. §§ 1203, 2 (Count Four). (See Second Superseding Indictment, May 8, 2012 [Dkt. No. 172] ("Ind.").) Before the Court is Ali's motion to dismiss (May 29, 2012 [Dkt. No. 188] ("Def. Mot.")), the government's opposition (June 11, 2012 [Dkt. No. 201] ("Gov't Opp'n")), and Ali's reply (June 14, 2012 [Dkt. No. 209] ("Def. Reply")). Appealing to principles of both international and domestic law, Ali argues that all counts of the indictment are legally defective. For the reasons stated below, the Court will grant in part and deny in part Ali's motion.
Ali moves to dismiss the indictment on the grounds that it fails "to state an offense."
Fed. R. Crim. P. 12(b)(3)(B).*fn4 In ruling on Ali's motion, the Court "views the indictment as a whole and assumes its factual allegations to be true." United States v. Campbell, 798 F. Supp. 2d 293, 298 (D.D.C. 2011). The Court's review is limited to "'the face of the indictment and, more specifically, the language used to charge the crimes.'" United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (quoting United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006)). This "is essential because the Fifth Amendment requires that criminal prosecutions be limited to the unique allegations of the indictments returned by the grand jury." United States v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001).
The Court will address Ali's arguments with regard to international law and the extraterritorial application of U.S. penal statutes in Section I. It will then turn to Ali's constitutional arguments in Section II.
I. THE EXTRATERRITORIAL APPLICATION OF DOMESTIC CRIMINAL LAWS
A. The Presumption Against Extraterritoriality
Although the indictment charges Ali with violations of U.S. law, none of the charged conduct has direct ties to the United States. Neither the alleged perpetrators nor the victims were American, the ship was Bahamian, and it was sailing "on the high seas and outside the territorial waters of any country" when it was hijacked. (Ind. at 1.*fn5) However, "[i]t is a 'longstanding principle of American law 'that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States."" Morrison v. Nat'l Australia Bank Ltd., 130 S. Ct. 2869, 2877 (2010) (quoting EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) ("Aramco") (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949))). "When a statute gives no clear indication of an extraterritorial application, it has none." Id. at 2878.
To be clear, the presumption against extraterritoriality "represents a canon of construction . . . rather than a limit upon Congress's power to legislate." Id. at 2877. Courts have "repeatedly upheld [Congress's] power to make laws applicable to persons or activities beyond our territorial boundaries," at least "where United States interests are affected." Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813--14 (1993) (Scalia, J., dissenting in part) (citing Ford v. United States, 273 U.S. 593, 621--23 (1927); United States v. Bowman, 260 U.S. 94, 98--99 (1922); American Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909)).*fn6 Such decisions speak to Congress's "'legislative jurisdiction,'" id. at 813 (quoting Aramco, 499 U.S. at 253), or "'jurisdiction to prescribe.'" Id. (quoting Restatement (Third) of Foreign Relations Law of the United States § 401(a) (1987) ("Restatement (Third)")). The presumption against extraterritoriality relates not to the existence of Congress's jurisdiction to prescribe, but rather to "whether, and to what extent, Congress has exercised" it in a given enactment. Id. (emphasis altered).
Congress's exercise of its prescriptive jurisdiction in the statutes establishing the substantive offenses of piracy and hostage taking is clear. The piracy statute provides, in its entirety, that "[w]hoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life." 18 U.S.C. § 1651 (emphasis added). Similarly, the hostage taking statute applies to conduct regardless of whether it occurs "inside or outside the United States." Id. § 1203(a).*fn7 By their text, both § 1651 and § 1203 apply extraterritorially.
In addition, courts have concluded that the presumption against extraterritoriality does not apply to the federal statutes establishing aiding and abetting and conspiratorial liability where the statute setting forth the underlying substantive offense applies outside U.S. borders. See United States v. Yakou, 428 F.3d 241, 252 (D.C. Cir. 2005) ("absent an indication from Congress to the contrary, the crime of aiding and abetting" in 18 U.S.C. § 2 "'confers extraterritorial jurisdiction to the same extent as the offense that underlies it'" (alterations omitted) (quoting United States v. Hill, 279 F.3d 731, 739 (9th Cir. 2002)); United States v. Yousef, 327 F.3d 56, 87--88 (2d Cir. 2003) ("[I]f Congress intended United States courts to have jurisdiction over the substantive crime . . . it is reasonable to conclude that Congress also intended to vest in United States courts the requisite jurisdiction over an extraterritorial conspiracy to commit that crime" pursuant to 18 U.S.C. § 371. (collecting cases)).
The Court concludes that "the presumption against extraterritoriality has been overcome or is otherwise inapplicable" with regard to all of the statutes at issue here. Hartford Fire Ins. Co., 509 U.S. at 814 (Scalia, J., dissenting in part).
B. The Charming Betsy Canon
Therefore, however, a second canon of statutory construction becomes relevant: "[A]n act of congress ought never to be construed to violate the law of nations if any other possible construction remains." Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (Marshall, C.J.). This canon is "wholly independent" of the presumption against extraterritoriality. Aramco, 499 U.S. at 264. It is relevant to determining the substantive reach of a statute because "the law of nations," or customary international law, includes limitations on a nation's exercise of its jurisdiction to prescribe. See Restatement (Third) §§ 401--416. Though it clearly has constitutional authority to do so, Congress is generally presumed not to have exceeded those customary international-law limits on jurisdiction to prescribe.
Id. at 814--15 (alterations in the original) (citation formats altered).
Accordingly, after determining that a penal statute has extraterritorial effect, courts begin the Charming Betsy analysis by considering whether the statute's extraterritorial application in a given instance would violate international law. See, e.g., United States v. Weingarten, 632 F.3d 60, 67 (2d Cir. 2011); United States v. Felix-Gutierrez, 940 F.2d 1200, 1205 (9th Cir. 1991). This is not because "international law [is] a self-executing code that trumps domestic law whenever the two conflict." United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir. 1991). To the contrary, just as the presumption against extraterritoriality recognizes Congress's power to give extraterritorial effect to criminal statutes, the Charming Betsy canon recognizes Congress's power to violate international law. See Lauritzen v. Larsen, 345 U.S. 571, 578 (1953) (the Charming Betsy canon "is not . . . any impairment of our own sovereignty, or limitation of the power of Congress"). Rather, both canons simply presume that Congress does not exercise such powers without making its intentions clear.
Therefore, if a statute's extraterritorial application would violate international law, at the second step of the Charming Betsy analysis courts ask whether Congress intended such a violation. If Congress's intent is evident, that is the end of the inquiry. Courts are "'obligated to give effect to an unambiguous exercise by Congress of its jurisdiction to prescribe even if such an exercise would exceed the limitations imposed by international law.'" Yunis, 924 F.2d at 1091 (quoting Fed. Trade Comm'n v. Compagnie de Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300, 1323 (D.C. Cir. 1980)). However, if the statute in question is ambiguous, Charming Betsy instructs courts to interpret it in light of international law. Thus, "'[s]ince the days of Chief Justice Marshall, the Supreme Court has consistently held that congressional statutes must be construed wherever possible in a manner that will not require the United States to violate the law of nations.'" George E. Warren Corp. v. EPA, 159 F.3d 616, 624 (D.C. Cir. 1998) (some internal quotation marks omitted) (quoting South African Airways v. Dole, 817 F.2d 119, 125 (D.C. Cir. 1987)); accord Yunis, 924 F.2d at 1091 (citing Schooner Charming Betsy, 6 U.S. (2 Cranch) at 118). "In sum, the practice of using international law to limit the extraterritorial reach of statutes is firmly established in our jurisprudence." Hartford Fire Ins. Co., 509 U.S. at 818 (Scalia, J., dissenting in part).*fn8
The law of nations recognizes five theories of jurisdiction: territorial, protective, national, passive personality, and universality. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 781 n.7 (D.C. Cir. 1984) (Edwards, J., concurring). The first four of these permit the extraterritorial application of domestic laws when domestic interests are at stake. They explicitly reflect "the twin principles of sovereignty over national territory and sovereignty over national citizens" that have "historically . . . governed" the "rules of extraterritorial jurisdiction." Felix-Gutierrez, 940 F.2d at 1205 (alteration, internal quotation marks, and citation omitted). The principle of sovereignty over national territory informs the territorial theory, which encompasses both acts occurring within a state's territory and acts occurring outside it that have effects within it, id. at 1205--06 (citing United States v. Aluminum Co. of Am., 148 F.2d 416, 443 (2d Cir. 1945)), and the protective theory, which "is based on whether the national interest or national security is threatened or injured by the conduct in question." Id. at 1206. The principle of sovereignty over national citizens informs the national theory, "'wherein jurisdiction is based on the nationality or national character of the offender,'" and the passive personality theory, "'wherein jurisdiction is based on the nationality or national character of the victim.'" Chua Han Mow v. United States, 730 F.2d 1308, 1311 (9th Cir. 1984) (quoting United States v. Smith, 680 F.2d 255, 257 (1st Cir. 1982)).
That leaves the universality theory. Uniquely, this theory authorizes extraterritorial jurisdiction even when domestic interests are not directly implicated.*fn9 It permits a state to prosecute an offender of any nationality for an offense committed outside of that state and without contacts to that state, "but only for the few, near-unique offenses uniformly recognized by the 'civilized nations' as an offense against" the law of nations. Yousef, 327 F.3d at 103.
Courts have disagreed about the list of crimes that give rise to universal jurisdiction and the ways in which that list can evolve.*fn10 However, even if it has expanded over time,*fn11 there is no doubt that it remains "strictly limited." Id. In addition, it is precise in terms of how the enumerated crimes are defined:
[B]ecause universal jurisdiction over a crime is established by international consensus, a state can only invoke universal jurisdiction for those acts that fall within the specific subset of universally condemned behavior that the international community has agreed warrants the assertion of universal jurisdiction. In short, a state's ability to invoke universal jurisdiction is inextricably intertwined with, and thus limited by, the substantive elements of the crime as defined by the consensus of the international community.
Hasan, 747 F. Supp. 2d at 608 (internal quotation marks and alterations omitted); see also In re South African Apartheid Litig., 617 F. Supp. 2d 228, 256 n.139 (S.D.N.Y. 2009) ("'If national courts prosecute on grounds of universal jurisdiction, they must use the international legal definitions-contained in customary international law-of the universal crimes they adjudicate; otherwise, their exercise of universal jurisdiction contradicts the very international law upon which it purports to rely.'" (quoting Anthony J. Colangelo, The Legal Limits of Universal Jurisdiction, 47 Va. J. Int'l L. 149, 150 (2006) (quoted in Hasan, 747 F. Supp. 2d at 608))).
This principle is not of recent vintage. It was pronounced at the turn of the nineteenth century by then-Congressman John Marshall, with piracy as the necessary example since it was the only universal jurisdiction crime recognized at the time. In his "celebrated argument" before Congress in the Robbins case,*fn12 Marshall stated:
"In truth, the right of every nation to punish, is limited in its nature to offenses against the nation inflicting the punishment. This principle is believed to be universally true. It comprehends every possible violation of its laws on its own territory, and it extends to violations committed elsewhere, by persons it has a right to bind. It extends, also, to general piracy. A pirate, under the laws of nations, is an enemy of the human race. Being the enemy of all, he is liable to be punished by all. . . . But an offense, which in its nature only affects a particular nation, is only punishable by that nation. It is by confounding general piracy with piracy by statute, that indistinct ideas have been produced, respecting the power to punish offenses committed on the high seas. A statute may make any offense piracy, committed within the jurisdiction of the nation passing the statute, and such offense will be punishable by that nation. But piracy, under the law of nations, which alone is punishable by all nations, can only consist in an act which is an offense against all. No particular nation can increase or diminish the list of offenses thus punishable."
The Chapman, 5 F. Cas. 471, 474 (D.C. Cal. 1864) (emphasis added) (quoted in Dire, 680 F.3d at 454). Marshall thus distinguished between "general piracy" and "piracy by statute," id., or piracy as a universal jurisdiction crime and so-called "municipal piracy." See Hasan, 747 F. Supp. 2d at 605--20 (elaborating on the distinction). While international law does not limit what a nation may define under its domestic law as municipal piracy when it exercises prescriptive jurisdiction pursuant to the territorial, national, protective, and passive personality theories, international law does purport to constrain states' power when they exercise prescriptive jurisdiction pursuant to the universality theory. As the Fourth Circuit explained:
On the one hand, while municipal piracy is flexible enough to cover virtually any overt act Congress chooses to dub piracy, it is necessarily restricted to those acts that have a jurisdictional nexus with the United States. . . . On the other hand, general piracy can be prosecuted by any nation, irrespective of the presence of a jurisdictional nexus. . . . Importantly, though, because it is created by international consensus, general piracy is restricted in substance to those offenses that the international community agrees constitute piracy.
Dire, 680 F.3d at 455 (emphasis added) (internal quotation marks, alterations, and citations omitted). "In other words, it is only when a state proscribes piracy in a manner that mirrors the international consensus definition, and prosecutes acts that fall within that definition, that the state can assert the universal jurisdiction doctrine." Hasan, 747 F. Supp. 2d at 609.
States can violate these constraints. Yunis, 924 F.2d at 1091; Yousef, 327 F.3d at 93. But Charming Betsy instructs courts to avoid concluding that Congress has done so "if any other possible construction remains." Id. at 86 (internal quotation marks omitted). The Court will now apply these principles to the statutes at issue, asking if their application here would violate international law and, if so, ...