151 F. Supp. 3d 116
D.D.C.2015Background
- September 11–12, 2012 attack on U.S. Special Mission (Mission) and an Annex in Benghazi, Libya, killed Ambassador J. Christopher Stevens and three other Americans; Abu Khatallah indicted in D.C. on an 18-count superseding indictment alleging orchestration and participation.
- Counts include material-support resulting in death (18 U.S.C. § 2339A), murder/attempted murder of U.S. officers/employees (§§ 1114, 1113), murder of an internationally protected person (§ 1116), attacks on Federal facilities (§ 930), arson/explosives damaging U.S. property (§ 844), jurisdictional offenses (§ 1363), and a § 924(c) weapons enhancement.
- Defendant moved to dismiss all counts except Count Three, arguing (inter alia) that most charged statutes lack extraterritorial reach, § 2339A is unconstitutionally vague and overbroad, and the Mission/Annex were not “Federal facilities” or “U.S. property.”
- Court held oral argument and applied D.C. Circuit’s reconciliation of Supreme Court extraterritoriality precedents with the older criminal-law rule in United States v. Bowman; denied most dismissal motions and reserved decision on Counts 16–17 (§ 1363), ordering supplemental briefing.
- Key holdings: the court found § 1114, § 930(c), § 844(f), § 924(c) (derivative to predicates), and § 2339A (as applied to predicates) can be applied extraterritorially under Bowman/Delgado-Garcia; rejected vagueness and overbreadth challenges to § 2339A; concluded Vienna Conventions do not prevent treating the Mission/Annex as U.S. facilities/property under the statutes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statutes (Counts 1,2,4–18) apply extraterritorially | Government: statutes apply extraterritorially where Bowman/Delgado-Garcia or ancillary- offense doctrine permit | Abu Khatallah: modern presumption against extraterritoriality bars application absent clear congressional statement | Court: follow D.C. Circuit—Bowman/Delgado-Garcia permits extraterritorial application for many listed statutes; ancillary offenses follow their predicates; deny dismissal except as to §1363 (supplemental briefing) |
| Whether § 2339A is unconstitutionally vague for lacking a ‘‘terrorism’’ element | Government: §2339A punishes material support for enumerated offenses; no separate terrorism element required | Abu Khatallah: title, history, and enforcement show statute targets terrorism making it vague | Court: statute’s text controls; conviction requires material support element, not proof of ‘‘terrorism’’; vagueness challenge denied |
| Whether § 2339A is overbroad under the First Amendment | Abu Khatallah: §2339A chills protected speech and may criminalize beliefs/communications | Government: prosecutions target unprotected conduct; speech may be admissible for intent/motive; statute lists concrete predicates and types of ‘‘material support’’ | Court: facial and as-applied overbreadth challenges rejected; speech cited is evidence or integral to crime |
| Whether Mission/Annex qualify as “Federal facility” or “U.S. property” given Vienna Conventions | Abu Khatallah: lack of host-state consent (TNC) under Vienna Conventions means facilities not lawfully U.S. property/federal facilities | Government: criminal statutes are statutory constructs; Vienna Conventions address establishment of permanent diplomatic missions and do not control statutory definitions; factual questions for trial | Court: Vienna Conventions do not alter the statutory definitions; defendant’s treaty argument fails as a matter of law; deny dismissal of Counts 10–15 |
Key Cases Cited
- United States v. Bowman, 260 U.S. 94 (1922) (establishes criminal-law rule allowing extraterritorial application for statutes protecting government interests where overseas applications are foreseeable)
- Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (presumption against extraterritoriality: statutes have no extraterritorial reach absent clear indication)
- Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869 (2010) (articulates presumption against extraterritoriality and analytical framework)
- United States v. Delgado-Garcia, 374 F.3d 1337 (D.C. Cir. 2004) (applies Bowman in D.C. Circuit: a statute satisfies Bowman if it protects U.S. interests and has many obvious extraterritorial applications)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (material-support doctrine and clarity of ‘‘material support’’ concept)
- United States v. Al Kassar, 660 F.3d 108 (2d Cir. 2011) (treats § 1114 as reaching extraterritorial conduct)
- United States v. Bin Laden, 92 F. Supp. 2d 189 (S.D.N.Y. 2000) (concludes § 930(c) and related statutes may apply extraterritorially)
- Validus Reinsurance, Ltd. v. United States, 786 F.3d 1039 (D.C. Cir. 2015) (textual traceability requirement when relying on contextual evidence to rebut presumption against extraterritoriality)
- Small v. United States, 544 U.S. 385 (2005) (clarifies limits of presumption against extraterritoriality and consideration of statutory context)