2000 WL 34528556 (S.D.N.Y.)

For opinion see 397 F.Supp.2d 465, 2005 WL 287404, 2001 WL 1160604, 146 F.Supp.2d 373, 2001 WL 310614, 2001 WL 276714, 2001 WL 66314, 109 F.Supp.2d 211, 91 F.Supp.2d 600, 92 F.Supp.2d 189, 58 F.Supp.2d 113

United States District Court, S.D. New York.

UNITED STATES OF AMERICA,

v.

Usama Bin LADEN, et al., Defendants.

No. 98 Cr. 1023(LBS).

February 18, 2000.

Reply Memorandum of Law in Support of Defendant Mohamed Sadeek Odeh's Motion to

Dismiss for Lack of Jurisdiction

Sandra L. Babcock, Esq., 220 South Sixth Street, Suite 215, Minneapolis, Minnesota 55402, (612) 721-9414.

Michael Young, Esq., 165 Christopher Street, New York, New York, 10014, (212) 242-4336.

Carl J. Herman, Esq., 570 West Mount Pleasant Avenue, Suite 101, Livingston, New Jersey, 07039, (973) 740-8944, Attorneys for Defendant Odeh.

TABLE OF CONTENTS

Introduction ... 2

Argument ... 3

I. BOWMAN AND ITS PROGENY FAIL TO SUPPORT EXTRATERRITORIAL APPLICATION OF AMBIGUOUS STATUTES TO FOREIGN CITIZENS ... 3

A. Introduction ... 3

B. Category 11: "Inherently Extraterritorial" Statutes ... 8

1. 18 U.S.C. §§844(f) and 930(c) ... 12

2. 18 U.S.C. §§ 7, 114, and 1111 ... 14

3. 18 U.S.C. §§844(n) and 924(c) ... 16

II. DUE PROCESS CONCERNS AND THE DEATH PENALTY ... 17

III. JURISDICTION UNDER INTERNATIONAL LAW ... 19

CONCLUSION ... 21

INTRODUCTION

Perhaps hoping that the disparaging tone of its arguments will entice tile Court to look no further, the government has submitted responsive pleadings that ask the Court to "swiftly" decide a case of first impression involving capital charges and accusations of international terrorism. Although the government struggles to convince the Court that the penal statutes at issue in this case "have been applied before" to extraterritorial conduct, (Gov't. Mem. at 31), it simply cannot point to a single case in which a court has addressed the extraterritorial application of 18 U.S.C. §§ 844 (f), (n), and (h), 930, and 2155. [FN1] One other charge - murder within the special maritime or territorial jurisdiction of the United States (18 U.S.C. §§1111, 7) - has only once in its nearly 100-year history been applied to conduct of a United States citizen overseas. No court has ever upheld its application to the conduct of a foreign citizen on foreign soil.

FN1. In United States v. Yousef, 927 F. Supp. 673 (S.D.N.Y. 1996), the court upheld the extraterritorial application of 18 U.S.C. §924(c), since the underlying felony was expressly extraterritorial in scope. 927 F. Supp. at 679-682. The underlying felony in Youssefwas 18 U.S.C. §32, the Aircraft Sabotage Act, which expressly provides for extraterritorial jurisdiction. In this case, the government has charged 18 U.S.C. §924(c) in relation to §844(f), which has no extraterritorial application. Counsel has found no other reported decisions applying 924(c) to acts of foreign nationals outside the territorial boundaries of the United States.

Given the unprecedented nature of this prosecution, one would expect the government to encourage the Court to consider all relevant authority. Instead, the government insists the Court should turn a blind eye to the legislative history of these statutes, relying primarily on a handful of non-binding decisions from courts outside this jurisdiction. (Gov't Mem. at 8).

While the government's invitation to ignore relevant legislative history is one of the most troubling aspects of its responsive pleadings, the government's repeated mischaracterization of the law is also cause for concern. Thus, this reply memorandum will focus on three areas: (1) the inapplicability of Bowman to cases of foreign citizens acting outside the territorial boundaries of the United States; [FN2] (2) due process and tle death penalty; and (3) jurisdiction under international law.

FN2. Some courts have stated that Mr. Odeh's arguments are more properly raised as a motion to dismiss for failure to state a claim. See Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813 (1993)(Scalia, J., dissenting). Mr. Odeh therefore requests that his motion to dismiss for lack of jurisdiction be considered, in the alternative, as a motion to dismiss the specified counts of the indictment for failure to state a claim.

ARGUMENT

I.

BOWMAN AND ITS PROGENY FAIL TO SUPPORT EXTRATERRITORIAL APPLICATION OF

AMBIGUOUS STATUTES TO FOREIGN CITIZENS

A. Introduction

As Mr. Odeh observed in his initial memorandum, the Supreme Court established a limited exception to the presumption against extraterritoriality in United States v. Bowman, 260 U.S. 94 (1922). What the government overlooks, however, is that Bowman is expressly limited by its facts to prosecutions of United States citizens. Contrary to the government's claims, the Court in Bowman expressly declined to consider "what, if any jurisdiction" a United States court would have over a British subject. 260 U.S. at 102-03 (emphasis added). In fact, the Supreme Court has never extended Bowman's holding to non-citizens, and in subsequent cases has reaffirmed the narrow scope of the opinion. See, e.g., Vermilya-Brown Co. v. Connell, 335 U.S. 377, 381 (1948) (Bowman established power of Congress to regulate crimes directly affecting the Government where U.S. citizens are involved, since "clearly such legislation concerning our citizens could not offend the dignity or right of sovereignty of another nation")(emphasis added); Skiriotes v. Florida, 313 U.S. 69 (1941)(repeatedly emphasizing fact that defendant was U.S. citizen in upholding extraterritorial application of Florida statute); United States v. Blackmer, 284 U.S. 421 (1932)("[w]hile the legislation of Congress, unless the contrary intent appears, is construed to apply only within the territorial jurisdiction of the United States, the question of its application, so far as citizens of the United States in foreign countries are concerned, is one of construction, not of legislative power")(emphasis added); Maul v. United States, 274 U.S. 501 (1927)(citing Bowman as support for proposition that customs officers have the power to seize domestic vessels on the high seas, which are "common to all nations and foreign to none"). Likewise, the majority of lower court cases applying Bowman have done so in cases involving the prosecution of United States citizens. See, e.g., United States v. Layton, 855 F.2d 1388 (9"' Cir. 1988)(upholding conviction of U.S. citizen who conspired to kill a U.S. Congressman in Guyana in violation of 18 U.S.C. §351); United States v. Perez-Herrera, 610 F.2d 975 (5th Cir. 1980); United States v. Baker, 609 F.2d 134 (5th Cir. 1980); United States v. Cotten, 471 F.2d 744 (9th Cir. 1973) (upholding conviction of U.S. citizens who, while in Asia, falsified military records to obtain government property in violation of 18 U.S.C. §641).

The Second Circuit has expressly recognized that Bowman applies primarily to cases involving United States citizens. United States v. Pizzarusso, 388 F.2d 8, 9 n.2 (2d Cir. 1968)(Bowman, cited by the United States in support of extraterritorial jurisdiction over foreign national, "is distinguishable as that case involved imposition of criminal liability on United States citizens for acts committed abroad.")(emphasis added). Similarly, in Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633 (2d Cir. 1956), the Second Circuit declined to apply the Lanham Act to a foreign citizen, even though the Supreme Court had previously upheld the application of the act to a U.S. citizen abroad. See Steele v. Bulova Watch Co., 344 U.S. 280 (1952). The court singled out citizenship as a decisive factor in its holding: "[W]e think the rationale of the [Supreme] Court was so thoroughly based on the power of the United States to govern the conduct of its own citizens... that the absence of [this] factor might well be determinative." 234 F.2d at 642-43.

To be sure, there are a number of courts that have cited Bowman when applying domestic legislation to foreigners acting outside the territorial boundaries of the United States. Most, however, have done so only where the statutes or their legislative history provided a clear indication of congressional intent to reach acts committed overseas. See, e.g., United States v. Pinto-Mejia, 720 F.2d 248 (2d Cir. 1983)(upholding extraterritorial application of 18 U.S.C. §955a(a), possession of narcotics with intent to distribute); Pizzarusso, 388 F.2d at 8(upholding extraterritorial application of 18 U.S.C. §1546, under which foreign defendant was convicted of making a false statement in a visa application); Chua Han Mow v. United States, 730 F.2d 1308 (9th Cir. 1984) (upholding extraterritorial application of 21 U.S.C. §959 and 21 U.S.C. §846 to Malaysian citizen); United States v. Evans, 667 F. Supp. 94 (S.D.N.Y. 1987) (upholding extraterritorial application of Arms Export Control Act, 22 U.S.C. §2278); United States v. Zehe, 601 F. Supp. 196 (D. Mass 1985)(Upholding extraterrit orial application of the Espionage Act, 18 U.S.C. §§792-799).

None of these cases- the majjority of which involve allegations of drug smuggling - purport to create a broad "presumption" of extraterritoriality, as the government incorrectly asserts. Rather, the courts have looked carefully to the nature of the statute, available legislative history, and Congress' other legislative efforts to determine whether the statute may be applied extraterritorially.

The government's Suggestion that the clear statement rule applies only in civil cases is likewise without merit. Courts analyzing the extraterritorial scope of penal statutes have repeatedly affirmed the principle that Congress must speak clearly and unequivocally when regulating extraterritorial conduct. See, e.g., Pizzarusso, 388 F.2d at 9 (noting "strong presumption that the Congress did not intend the statute to apply extraterritorially" and citing American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909)); United States v. Columba-Colella, 604 F.2d 356 (5th Cir. 1979)(reversing conviction of foreign defendant for crimes committed on foreign soil under American Banana Co.'s clear statement rule); United States v. Mitchell, 553 F.2d 996 (5"' Cir. 1977) (reversing conviction of American citizen after finding that statute and its legislative history failed to demonstrate the "clear intent required by Bowman and its progeny to overcome the presumption against extraterritorial extension of American statutes); Zehe, 601 F. Supp. at 200 (there must be "strong and clear evidence of congressional intent to apply a criminal law beyond this country's territorial boundaries to noncitizens").

Statutes may be divided into three categories for the purpose of determining wheter they may be applied extraterritorially against foreign nationals. The first category contains statutes that expressly provide for extraterritorial application. These include, for example, penal statutes enacted pursuant to international treaties governing extraterritorial acts of terrorism. Without exception, courts examining these statutes have upheld their application to foreign nationals. See, e.g., United States v. Yousef, 927 F. Supp. 673 (S.D.N.Y. 1996)(18 U.S.C. §32(a)(1), (2), and (7); 18 U.S.C. §2332a); United States v. Rezaq, 1 34 F.2d 1 121 (D.C. Cir. 1998)(49 U.S.C. app. 1472(n)); United States v. Yunis, 924 F.2d 1 086 (D.C. Cir. 1991)(18 U.S.C. § 1203, 29 U.S.C. App. § 1472(n)). In the present indietment ther are three statutes that fall into this category: 18 U.S.C. §§2332, 2332a, and 1116. Mr. Odeh has not challenged the extraterritorial application of these statutes under canons of statutory construction, [FN3] and they merit no further discussion here.

FN3. Mr. Odeh does argue that the "passive personality principle" provides an insufficient basis for extraterritorial jurisdiction. Odeh Mem. at 29-32. That argument is distinct from those regarding congressional intent.

The second category includes statutes whose provisions do not expressly provide for extraterritorial application, but whose context or legislative history indicates Congress' intent to apply them extraterritorially. This category of statutes - described herein as "inherently extraterritorial" - includes statutes relating to espionage, Zehe, 601 F. Supp. at 196, importation and distribution of illegal narcotics, Pinto-Mejia. 720 F.2d at 248, and immigration violations. Pizzarusso, 388 F.2d at 8. There are a fair number of cases in this area, discussed in detail below, that have upheld the application of such statutes to foreign nationals.

The final category of statutes includes those where neither the language of the statute, nor its legislative history, support extraterritorial application. Only one court has expressly upheld the application of such a statute to a foreign national. See United States v. Benitez, 741 F.2d 1312 (11th Cir. 1984) (upholding extraterritorial application of 18 U.S.C. §§ 111, 1114, and 2112 to Colombian citizen who assaulted DEA agent). As discussed in more detail in Odeh's original memorandum and below, Benitez can be distinguished from the case at bar, and is not controlling precedent.

B. Category II: "Inherently Extraterritorial" Statutes

Courts have repeatedly grappled with Bowman when interpreting penal statutes that are inherently international in scope. These statutes regulate activities that routinely occur on the high seas or on foreign soil. The classic example is a statute designed to regulate immigration. In Pizzarusso, the Second Circuit upheld the extraterritorial application of 18 U.S.C. §1546, which penalizes the making of false statements on visa applications. 388 F.2d at 8. While recognizing the "strong presumption" against extraterritoriality, the court reasoned that since visas are often issued to aliens in foreign countries, Congress must have intended to give the statute extraterritorial effect. Id. at 9.

Other courts have similarly upheld the application of "inherently extraterritorial" statutes to foreign nationals abroad. For example, this Court held in United Stales v. Evans, supra, that the Arms Export Control Act (AECA), 22 U.S.C. §2778, was "inherently international in scope." 667 F. Supp. at 981. Before reaching this conclusion, however, the Court found it "essential" to review the scope and Construction of the AECA. Id. at 982. The Court looked not only to the legislative history of the Statute, which reflected congressional intent to control the "international flow of armaments," but to other legislative provisions and federal regulations, as well. Id. at 985. Since these sources provided strong evidence of Congress' intent to reach foreign persons and extraterritorial acts, the Court Upheld the application of the AECA to foreign co-conspirators living in Israel. Id. at 985-86.

Likewise, in Pinto-Mejia, the Second Circuit Upheld the application of 18 U.S.C. §955a(a) - possession of narcotics with the intent to distribute - to foreign defendants in a vessel outside the territorial waters of the United States. 720 F.2d at 248. The Second Circuit relied heavily on the legislative history of the statute, which indicated Congress clear intent to regulate offenses committed outside the territorial jurisdiction of the United States. Id. at 31 0. Moreover, the House report accompanying the legislation expressed Congress' intent to reach foreign citizens on stateless vessels. Id. at 311.

In another case relating to the interpretation of narcotics laws, the Third Circuit upheld the application of 21 U.S.C. §§955a, 952(a). 960(a)(1). 963, 841(a)(1) and 841(b)(6) to foreign defendants found in a vessel on the high seas. United States v. Wright-Barker, 784 F.2d 161 (3d Cir. 1986). While none of these statutory pro visions. with the exception of 18 U.S.C. §955a, clearly provided for extraterritorial jurisdiction. they were part of a comprehensive statutory scheme designed to limit drug smuggling and distribution. The court concluded that since Congress "intended to prohlibit conspiracies to import controlled substances into the United States," it intended to regulate the acts of both foreign as well as domestic Suppliers. Id at 1 67.

In marked contrast to these Inherently extraterritorial crimes, tile statutory offenses challenged by Mr. Well are "Inherently domestic." (See Odeh Mem. at 7- 21). The only statute that is arguably relevant to the analysis of the Zehe and Evans is 18 U.S.C. §2155, which prohibits attacks on national defense material. The others -- 18 U.S.C. §§844 (f), (h), and (n); 924(c) 930, 1111, 7, 114, and 1114 - are bereft of any reference to extraterritorial acts. Unlike legislation designed to combat drug smuggling. or prohibit the export of illegal arms, these statutes lack any connection to international activities.

Apparently recognizing this distinction, the government resorts to an alternative argument, stating that courts have "routinely" given extraterritorial effect to statutes that "protect identified government interests." (Gov't Mem. at 13). While it is true that such statutes have in a few instances been applied to United States citizens acting abroad, see, e.g., Bowman, 260 U.S. at 94; United States v. Collen, 471 F.2d 744 (9th Cir. 1973). their application is far from "routine." Moreover, this rule simply does not extend to prosecutions of foreign citizens. If that Were SO, Surely there Would be a plethora of reported decisions regarding attacks on government personnel and property by Foreign nationals overseas. Bowman's narrow holding simply does not support Such sweeping generalizations.

In Bowman, the defendant was charged with conspiracy to defraud the Fleet Corporation, a corporation in which the United States was a Shareholder. The Court analyzed the legislative history of the statute, which was designed to protect tile Emergency Fleet Corporation. Id. at 101-02. After observing that the Fleet Corporation engaged in extensive ocean transportation business and had ships "in every port of the world," id. at 102, tile court concluded that Congress intended to regulate frauds on the high seas and in foreign ports." Id. The Court reasoned that some criminal statutes may be applied extraterritorially, if they are "not logically dependent on their locality for the Government's jurisdiction, but are enacted because of the right of the Govermment to defend itself against obstruction or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents." 260 U.S. at 99.

Relying on this language from Bowman, the Ninth Circuit has upheld the extraterritorial application of several statutes which, on their face, are not international in scope. Two of these cases, however, expressly involve U.S. citizens. See United States v. Layton, 855 F.2d 1388 (9th Cir. 1988); Cotten, 471 F.2d at 744. The other two cases contain no discussion of tile nationality of the defendants. United States v. Vasquez-Velasco, 15 F.3d 833 (9"' Cir. 1994); United States v. Felix-Gutierrez, 940 F.2d 1200 (9th Cir. 1991). The government argues that the defendants were foreign nationals - yet neither opinion even remotely addresses the question of the defendants' citizenship. (Gov't Mem. at 11 n.2). As the court does not address the question of citizenship, there is no basis upon which to conclude that tile court considered the matter. "Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not considered as having been so decided as to constitute precedents." Webster v. Fall, 266 U.S. 507, 511 (1925).

Indeed, tile only court to expressly adopt the position urged by the government is the Eleventh Circuit, in United Stales v. Benitez, 741 F.2d 1312 (11th Cir. 1984). In Benitez. the court upheld the conviction of a Colombian national who shot and robbed a DEA agent. Although the court look note of the defendant's citizenship, it failed even to address the relationship between foreign citizenship and the extraterritorial application of statutes. The court's analysis is remarkably superficial, given the extraordinary nature of its holding. For this reason alone, the Court should not rely on Benilez when interpreting the extraterritorial application of the statutory offenses alleged in this indietment, nor should the Court accept the government's invitation to refrain from careful analysis of each statute, including its legislative history.

The government's arguments regarding specific statutes are addressed in detail below.

1. 18 U.S.C. §§844(f) and 930(c)

The government claims that because both of these statutes relate to government property, they should be applied extraterritorially. Here, the government relies on Cotten, 471 F.2d at 750. where the Ninth Circuit upheld the convictions of U.S. citizens who, in violation of 18 U.S.C. §641, falsified military records to obtain government property while in Asia. As has been argued above, Cotten's holding does not apply to non-citizens.

Because nothing in the legislative history of these statutes indicates Congress' intent to reach extraterritorial acts, the government encourages the Court simply to ignore it. To borrow some of the government's own language, this invitation should be swiftly rejected. Countless courts have recognized the value of legislative history in determining congressional intent - particularly when construing the extraterritorial reach of statutes. See, e.g., Pinto-Mejia, 720 F.2d at 248; United States v. Hayes, 653 F.2d 8 (1st Cir. 1981); United States v. Baker, 609 F.2d 134 (5th Cir. 1980); Evans. 667 F. Supp. at 974. Where neither the language of the statute nor its legislative history Supports extrateritorial application, it may not be applied to the extraterritorial acts of noncitizens.

The government discounts the relevance of separate legislation, passed after 18 U.S.C. §844(f), expressly providing extraterritorial jurisdiction. The Second Circuit has recognized, however, that "congressional consideration of an issue III one context, but not another, in tile same or similar, statutes, implies that Congress intends to include that issue only where it has so indicated." United States v. Azeem, 946 F.2d 13, 17 (2d Cir. 1991). By enacting 18 U.S.C. §2332a, Congress demonstrated "that where it intends to [reach extraterritorial acts], it will (lo so" by adopting express language in the statute. [FN4] Id.

FN4. Other courts have also taken into account subsequent oi- related legislative efforts in determining the extraterritorial scope of a statute. See, e.g., Haves, 653 F.3d at 18; Baker, 609 F.2d at 134.

The government Further claims that Congress did not provide for extraterritorial jurisdiction in these statutes, since "Congress is well aware that under Bowman and its progeny, it was not required to explicity spell out its intent..." (Gov't. Mem. at 21). The government can point to nothing in the congressional record or legislative history of the statutes at issue that supports this argument. To the contrary, Congress itself has repeatedly acknowledged that penal statutes apply only within U.S. territorial boundaries unless Congress expressly provides otherwise. For example, when Congress passed the Omnibus Diplomatic Security and Antiterrorism Act of 1986, it adopted legislation expressly conferring extraterritorial jurisdiction in 18 U.S.C. §2332, which proscribes killings of Americans abroad. The House Report commented that tile legislation

establishes extraterritorial jurisdiction over serious violent attacks by terrorists upon United States nationals. Presently, Federal law prohibits extraterritorial nurder of and assanits upon only cerlain high ranking United States officials. diplomats, and law enforcement officers. [This legislation] will extend coverage to any terrorist murder or manslaughter of an serious physical assault on any United States national...

In a later hearing before the Crime Subcommittee of the House Judiciary Committec. Representative William Hughes observed:

As a general rule, the criminal laws of the United States apply only to conduct occurring within this country. The [Omnibus Diplomatic Security and Antiterrorism Act of 1986] is an exception. in that it extends United States criminal law beyond our borders to reach terrorist attacks committed anywhere in the world upon United States nationals.

Hearing of the Crime Subcommittee of the House Judiciary Committee, Testimony of Rep. William Hughes, May 31, 1989. See also id., Testimony of. Oliver B. Revell, Executive Assistant Director for Investigations of the Federal Bureau of Investigation (explaining that certain Statutes provide for extraterritorial application, such as the antiterrorism act, hostage-taking statute., and other laws protecting foreign officials and criminalizing air piracy and hijacking).

2. 18 U.S.C. §§ 7, 114, and 1111

Application of 18 U.S.C. §§ 7, 114, and 1111 - unlike the other offeses alleged in the indictment - are expressly limited by their terms to the special maritime and territorial jurisdiction of the United States. Hence, the government's arguments under Bowman, Cotton, and Vasquez-Velasco are entirely irrelevant to this provision, since these crimes are "dependent upon the locality of violation for Jurisdiction." Cf. Bowman, 260 U.S. at 98; Cotten, 471 F.2d at 750.

Perhaps recognizing the invalidity of its legal arguments. the government once again resorts to rhetorical attacks. Declaring that Odeh and his co-defendants have "declared war" on the United States, (Gov't Mem. at 21), the government exhorts the Court to find jurisdiction, "where the criminal conduct ... was directed at the entire premises of the United States embassy and its occupants precisely because it was American..." (Gov't Mem. at 24). Here, the government confounds principles of statutory construction with the protective principle of jurisdiction under international law.

In ascertaining the extraterritorial scope of a statute, the court must first look to domestic canons of statutory construction. If the Court finds the act is extraterritorial in scope under domestic law, it must then determine whether the exercise of jurisdiction by the United States conflicts with international law. As explained at length in Mr. Odeh's initial memorandum, see Odeh Mem. at 11-15, 18 U.S.C. §§7, 1111, and 114 fail this first test.

In responding to Mr. Odeh's analysis of the "special maritime and territorial jurisdiction" of the United States, the government argues that tile United States retains "concurrent jurisdiction" over its embassies abroad. (Gov't Mem. at 24-25). In support of its argument, the government oddly cites the Restatement of the Foreign Relations Law of the United States - even though the Restatement supports Mr. Odeh's contention that embassies are within the jurisdiction of the receiving state to enforce the law. It appears the government misapprehends the "inviolability" principle of consular premises. The Restatement makes clear that consular premises are inviolable, in the sense that the receiving state may not invade or intrude upon embassy property. Restatement §466, comment a. For example, the receiving state may not enter to arrest a person who seeks asylum within embassy grounds, id. comment b, nor may it search the premises without the sending state's consent. Id, comment c. The Restatement adds:

That premises are inviolable does not mean that they are extraterritorial. Acts committed on those premises are within the territorial jurisdiction of the receiving state, and the mission is required to observe local law...

Id. Other sources are equally clear that embassy grounds are within the territorial jurisdiction of the receiving state. See. E.g., OPPENHEIM'S INTERNATIONAL LAW 1091 n.4 (citing British, French, German, and Italian cases supporting the principle that the receiving state's laws govern events taking place on a foreign embassy's premises); Fatemi v. Unifed States, 34 I.L.R. 148, 149 (D.C. Cir. 1963)("[A] foreign embassy is not to be considered the territory of the sending state."); J. Brierly, THE LAW OF NATIONS 215 (5th ed. 1955)("The lack of [territorial state] power to enforce local laws within "M embassy does not lead to a right for the sending state to exercise police powers within that same embassy.").

Finally, the nature of the crimes alleged in trials case III no way Perinits the Court to deviate from the presumption against extraterritoriality. The government's strident recitation of the Facts alleged in the indictment is irrelevant to tile Court's analysis. Mr. Odeh agrees that Congress intended to provide a statutory vehicle to prosecute such crimes; it did so when it passed 18 U.S.C. §2332a. There is, however, no evidence that Congress intended to Mutilate such crimes it the lime it enacted 18 U.S.C. §§7. 114, and 1111.

3. 18 U.S.C. §§844(n) and 924(c)

Count 5 of the indictment alleges a conspiracy to bomb the United Slates embassies, in violation of 18 U.S.C. §844(f)(1). Counts 242-43 of the indictment allege that the defendants used a Firearm in while bombing the United States embassies, again with relation to 18 U.S.C. §844(f). [FN5] Since tile substantive statute - 18 U.S.C. §844(f) does not reach extraterritorial acts, there is no lawful basis to uphold the extratraterritorial application of these Counts.

FN5. The government alleges, in its memorandum, that 18 U.S.C. §924(c) is related to the conspiracy to murder U.S. nationals abroad. (Gov't Mem. at 29). This is false. The government's own indictment specifies that Counts 242- 43 are related to a violation of 18 U.S.C. §844(f).

II.

DUE PROCESS CONCERNS AND THE DEATH PENALTY

Despite tile government's unprecedented attempt to bring capital charges against foreign citizens, applying domestic statutes that have never before been applied abroad, the government insists Mr. Odeh "was on notice about the possibility of being tried here." The government cites previous prosecutions of foreign nationals for acts of terrorism, but neglects to point out that in each of the cases cited, the defendants were convicted under hijacking or air piracy statutes expressly designed for extraterritorial application. pursuant to ratified, international treaties. See, e.g., Yousef, 927 F. Supp. at 673 (18 U.S.C. §32(a)(1), (2), and (7); 18 U.S.C. §2332a); Rezaq, 134 F.2d at 1121 (49 U.S.C. app. 1472(n)); Yunis, 924 F.2d at 1086 (18 U.S.C. §1203, 29 U.S.C. App. §1472(n)); Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 U.S.T. 1643.

The government readily admits that the extent of the government's authority to enforce legislation outside the territorial boundaries of the United States is subject to the limitations of due process. (Gov't. Mem. at 3). Nowhere is due process of greater concern than in a capital prosecution.

[D]eath is a different kind of punishment from any other which may be imposed III this Country. From the point of view or the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the lire of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to tile defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.

Gardner v. Florida, 430 U.S. 349, 357-58 (1977). International law similarly requires that procedural guarantees of fairness and due process be strictly observed when a country seeks to impose the death penalty. See Reid v. Jamaica (No. 250/1987) §12.2 ("in capital punishment cases, tile duty of States parties to observe rigorously all the gurantees for a fair trial... is even more imperative"). Viewed against this backdrop. It is not surprising that the Connecticut Supreme Court Concluded that "any statutory construction Implicating the death Penalty must be based on a conclusion that the legislature has clearly and unambiguously made its intention known." State v. Harrell, 681 A.2d 944 (1996).

Thus, before concluding that tile statutory offenses alleged in tile indictment may be applied extraterritorially, tile Court Must carefully consider whether prosecution under those statutes would violate Mr. Odell's due process rights. There are several, related norms of due process that are implicated in this case. The rule of The lenity and right to fair warning have already been discussed in detail. See Odeh Mem. at 22-27. In addition, the Court must determine whether there is a sufficient nexus between Mr. Odell's alleged conduct and the United States. As Mr. Odell is Jordanian, and the acts alleged in tile indictment all took place on foreign soil, the connection between Mr. Odell and the United States is weak. Even assuming, arguendo, that Mr. Odeh's alleged involvement in a conspiracy to kill Americans established sufficient nexus for a non-capital prosecution, the Court should require a far greater nexus before permiting the United Slates government to seek the execution of a foreign citizen.

The government argues that all arguments relating to the death penalty are premature, since the government has not yet decided whether to seek authorization for the death penalty. In Mr. Odeh's view, however, the Court cannot decide the questious of constitutional and statutory interpretation raised here without considering that this is potentially a capital prosecution. If the Court agrees that these arguments are premature, Mr. Odeh respectfully requests that the Court withhold a final ruling on the questious raised in his memoranda, at least as regards the death-eligible offenses.

III.

JURISDICTION UNDER INTERNATIONAL LAW

If the Court concludes that the statutes at issue have extraterritorial force under canons of statutory construction, and survive analysis under the due process clause, it must then consider whether international law authorizes such a prosecution. "An 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. 64 (1804). "[T]he practice of using international law to limit the extraterritorial reach of statutes is firmly established in our jurisprudence." Hariford Fire, 509 U.S. at 818 (Scalia, J., dissenting).

There are two areas in which international law conflicts with the present indictment. First, international law does not authorize the prosecution of foreign defendants for the deaths of foreign nationals on foreign soil. See Odeh Mem. at 32-34. Second, international law prohibits the United States from seeking the death penalty on the facts of this case.

While major human rights treaties do not prohibit the use of the death penalty in all cases, they do limit its use. See Nigel S. Rodley, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW 207-242 (1999). Over half the world's nations have now abolished capital punishment. In April 1999, the United Nations Commission on Human Rights voted in favor of a worldwide moratorium on the death penalty. United Nations High Commission for Human Rights, Resolution 1999/61, 58th Meeting, April 28, 1999. In November 1999, the African Commission on Human and Peoples' Rights also voted in favor ofa moratorium on executions. Amnesty International, Death Penally News, ACT 53/05/99 (Dec. 1999)<http://www. amiinesy.org/ailib/aipub/1999/ACT/A5300599.htm>. Kenya has effectively suspended the death penalty since the mid-1980s, owing to a. Presidential policy against approving death sentences imposed by the courts.

If the death penalty is authorized in this case, Mr. Odeh will certainly raise more comprehensive arguments under international law in an effort to bar the government from seeking the death penalty. In anticipation of the government's objection that, at present, authorization has neither been sought nor approved, Mr. Odeh requests an opportunity to revisit these arguments should the government should seek the death penalty.

CONCLUSION

For the reasons cited herein and in his initial memorandum. Mr. Odeh respectfully requests that this Court enter an order dismissing counts I and 5- 244.

Motions and Filings

• Memorandum of Law in Support of Pre-Trial Motions on Behalf of Khalfan Khamis Mohamed (Mar. 08, 2000)

• Reply Memorandum of Law in Support of Defendant Mohamed Sadeek Odeh's Motions to Dismiss for Lack of Venue, to Partially Disqualify Certain Assistant United States Attorneys, for Discovery and for a Bill of Particulars (Feb. 22, 2000)