United States District Court, District of Columbia
CHRISTOPHER R. COOPER, District Judge.
On July 15, 2013, a criminal complaint was issued against Ahmed Salim Faraj Abu Khatallah, a Libyan national, for his suspected involvement in the September 2012 attack against a U.S. diplomatic compound in Benghazi, Libya. The attack resulted in the deaths of four Americans, including the U.S. Ambassador to Libya, J. Christopher Stevens. U.S. military forces apprehended Abu Khatallah in Benghazi on June 15, 2014 and transported him to Washington, D.C. aboard a Navy ship. While he was en route, a grand jury sitting in this District issued a sealed indictment charging him with conspiring to provide material support for the attack. The indictment was unsealed upon Abu Khatallah's arraignment in this Court on June 28, 2014. The grand jury has since handed down a superseding indictment charging Abu Khatallah with 18 counts, some of which carry the death penalty should the government choose to seek it. On August 3, 2015, Abu Khatallah, in addition to moving to dismiss all but one of those counts, moved the Court to divest itself of jurisdiction over him and to order the government to return him to Libya. Def.'s Mot. Return 1. Alternatively, he requested that the Court order the government not to seek the death penalty. Def.'s Reply Supp. Mot. Return ("Def.'s Reply") 1. In support of his motion, Abu Khatallah contends that his seizure in Libya and his subsequent interrogation and transportation to the United States violated (1) the Posse Comitatus Act, a Reconstruction-era criminal statute limiting military involvement in civilian law enforcement; (2) provisions of the United Nations Charter and the Hague Convention on the Law of War; and (3) the Due Process Clause of the Fifth Amendment. Def.'s Mot. Return 1. The government's conduct is so outrageous, Abu Khatallah argues, that the Court should grant his motion "[a]s a sanction for this misconduct and in order to deter future similar misconduct." Def.'s Reply 22.
The Court assumes familiarity with the factual background of this case, discussed in detail in the Court's memorandum opinion of December 23, 2015, ECF. No. 140. In that opinion, the Court explained its decision not to dismiss most of the charges against Abu Khatallah. Here, the Court addresses Abu Khatallah's request that it divest itself of personal jurisdiction over him and order his return to Libya or, alternatively, prevent the government from seeking the death penalty. Because the power of a court to try a person for a crime is not dependent on whether he was initially brought within the court's jurisdiction by lawful means, Frisbie v. Collins, 342 U.S. 519, 522 (1952), the Court will deny Abu Khatallah's motion for return to Libya. And because the Court lacks the authority to prescribe the sentence that the prosecution may seek, it must decline to order the government to forgo the death penalty.
I. 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). This pretrial motion challenges the Court's personal jurisdiction over a defendant who claims that he was forcibly abducted and brought to stand trial in the United States in violation of domestic and international law. The Supreme Court has squarely held, and repeatedly reaffirmed, that "the power of a court to try a person for a crime is not impaired by the fact that he ha[s] been brought within the court's jurisdiction by reason of a forcible abduction'" in violation of federal law. Frisbie, 342 U.S. at 522 (citing Ker v. Illinois, 119 U.S. 436, 444 (1886)).
The D.C. Circuit has explained, however, that the Ker-Frisbie doctrine, as it has come to be called, is a "general rule [that] does admit of some exceptions." United States v. Rezaq, 134 F.3d 1121, 1130 (D.C. Cir. 1998). The one clear exception to the rule involves self-executing "extradition treat[ies that] provide that [they are] 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)). A second-and "very limited"- potential exception to the rule might apply in "certain cases of torture, brutality, and similar outrageous conduct.'" Id . (quoting United States v. Yunis, 924 F.2d 1086, 1092-93 (D.C. Cir. 1991)). At a minimum, however, a court should not divest itself of jurisdiction over a defendant when no treaty (or statute) requires it to do so and when the defendant has not suffered torture, brutality, or similar outrageous conduct during his apprehension or interrogation.
Abu Khatallah urges the Court to divest itself of personal jurisdiction over him and to order his return to Libya. He contends that the government's violations of the Posse Comitatus Act, international agreements, and the U.S. Constitution are so severe as to warrant that drastic remedy. Regardless of whether the government violated domestic or international law in apprehending Abu Khatallah and transporting him to the United States, however, divestiture of personal jurisdiction is not an appropriate remedy in this case. First, the Posse Comitatus Act is a criminal statute, and the proper remedy for its violation is criminal prosecution. Second, the provisions of the U.N. Charter and the Hague Convention on which Abu Khatallah relies form parts of international agreements that impose general obligations on countries; they confer no rights on individuals or private rights of action enforceable in U.S. courts. Finally, the proper remedy for violation of the constitutional provisions at issue here is exclusion of evidence, not dismissal of an indictment or divestiture of jurisdiction.
A. The Posse Comitatus Act
Abu Khatallah contends that the government violated two restrictions on the use of the military when it arrested him and transported him to the United States: the Posse Comitatus Act, 18 U.S.C. § 1385, and Department of Defense regulations issued pursuant to 10 U.S.C. § 375. The Posse Comitatus Act, a criminal statute enacted in 1878, is "the primary restriction on [military] participation in civilian law enforcement activities." 32 C.F.R. § 182.6(a)(1)(i)(A). It provides:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10, 000 or imprisoned not more than two years, or both.
18 U.S.C. § 1385. Relatedly, 10 U.S.C. § 375 requires the Secretary of Defense to "prescribe such regulations as may be necessary to ensure that any activity" by the armed forces "does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law." Pursuant to this statute, the Department of Defense has promulgated regulations specifying limited "[c]ategories of active [military] participation in direct law-enforcement-type activities (e.g., search, seizure, and arrest) that are not restricted by law or [Department of Defense] policy." 32 C.F.R. § 182.6(a)(1)(ii).
According to Abu Khatallah, the military was directly involved in his seizure and its involvement did not fall within any exceptions specified by Department of Defense regulations. The government first responds that the Posse Comitatus Act applies only domestically and therefore does not extend to Abu Khatallah's arrest in Libya. It further argues that even if the Posse Comitatus Act applied, it was not violated because Department of Defense regulations allow for the type of direct military involvement that took place here. And finally, the government urges that even if the Posse Comitatus Act was violated, Abu Khatallah's proposed remedy would be inappropriate.
1. Whether the Act Applies to the Government's Conduct
The parties dispute whether the Posse Comitatus Act applies extraterritorially-i.e., whether someone could be prosecuted for violating the Act outside the United States. At oral argument, however, defense counsel for the first time advanced the argument that the government's alleged violation of the Posse Comitatus Act was actually domestic -and that the question of extraterritorial application is therefore irrelevant-because the order for the U.S. military to apprehend Abu Khatallah was presumably issued by officials who were present in the United States when they gave that order. The precise contours of the Act's extraterritorial scope remain somewhat unsettled, although the courts that have addressed the issue directly have not found the Act to apply extraterritorially on the facts before them. See, e.g., Gillars v. United States, 182 F.2d 962, 972 (D.C. Cir. 1950); Chandler v. United States, 171 F.2d 921, 936 (1st Cir. 1948). And this Court's research has revealed no case analyzing precisely what constitutes a domestic or international violation of the ...