160 F. Supp. 3d 144
D.D.C.2016Background
- Ahmed Abu Khatallah, a Libyan national, was seized in Benghazi by U.S. military forces on June 15, 2014 and transported to the U.S.; a grand jury indicted him for conspiracies tied to the 2012 Benghazi attack.
- He moved to have the Court divest personal jurisdiction and order his return to Libya (or, alternatively, bar the government from seeking the death penalty).
- He alleges violations of the Posse Comitatus Act, DoD regulations, U.N. Charter and the Hague Convention, and the Fifth Amendment (prompt presentment/Miranda/right to counsel).
- The government contends Ker–Frisbie controls (forcible abduction does not defeat jurisdiction), the Posse Comitatus Act is not remedied by dismissal or divestiture, the cited treaties are non-self-executing and confer no private right, and constitutional claims should be raised by suppression motion.
- The Court denied the motion to divest jurisdiction and refused to order the government not to seek the death penalty, holding remedies for the alleged violations lie elsewhere (criminal prosecution under Posse Comitatus statute, suppression motions, or no private treaty remedy).
Issues
| Issue | Abu Khatallah's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether court must divest jurisdiction / return defendant because he was seized illegally | Seizure and transport violated Posse Comitatus, international law, and due process; extraordinary misconduct requires divestiture/return | Ker–Frisbie permits trial despite forcible abduction; divestiture/dismissal is not proper remedy | Denied — Ker–Frisbie controls; unlawful procurement of presence does not defeat jurisdiction |
| Whether Posse Comitatus Act (and DoD regs) provides a basis to dismiss or require return | Violation of the Act/regs makes U.S. custody unlawful and warrants return | Act is a criminal statute; remedy is criminal prosecution, not dismissal or divestiture | Denied — remedy is statutory criminal penalties, not barring prosecution |
| Whether U.N. Charter / Hague Convention provide enforceable individual rights or remedy | Treaties prohibit use of force and protect sovereignty; violation should bar jurisdiction or provide remedy | Treaty provisions are non‑self‑executing and do not create private causes of action | Denied — treaties cited are not self‑executing and confer no private judicial remedy |
| Whether alleged constitutional violations (delayed presentment, custodial interrogation, denial of counsel, coerced statements) justify divesting jurisdiction or other extraordinary relief | Constitutional deprivations were deliberate and severe; suppression inadequate; only return/divestiture suffices | Constitutional claims should be litigated via suppression motions; exception to Ker–Frisbie limited to torture/brutality and not shown here | Denied — claims belong in suppression proceedings; Toscanino‑style exception (torture/brutality) not met |
| Whether court can order government not to seek death penalty as remedy for illegal seizure | If returned lawfully Libya might have barred death penalty; court should prohibit federal pursuit of death penalty | Death‑penalty charging is prosecutorial discretion; court may not dictate charging decisions | Denied — court cannot usurp prosecutorial discretion to forbid seeking death penalty |
Key Cases Cited
- Frisbie v. Collins, 342 U.S. 519 (forcible abduction does not defeat a court's power to try a defendant)
- Ker v. Illinois, 119 U.S. 436 (historical Ker rule on forcible rendition and jurisdiction)
- Medellin v. Texas, 552 U.S. 491 (treaty self‑execution analysis)
- Sanchez‑Llamas v. Oregon, 548 U.S. 331 (courts should not supply treaty remedies absent treaty text or implementing law)
- United States v. Yunis, 924 F.2d 1086 (D.C. Cir. — Ker‑Frisbie admits limited exceptions for torture/brutality but rejects dismissal for Posse Comitatus violations)
- United States v. Rezaq, 134 F.3d 1121 (D.C. Cir. — Ker‑Frisbie exceptions and extradition treaty caveat)
- United States v. Toscanino, 500 F.2d 267 (2d Cir. — due process/divestiture for extreme brutality — discussed as narrow exception)
- United States v. Noriega, 117 F.3d 1206 (11th Cir. — Ker‑Frisbie applies even when high‑level officials directed a military capture)
- United States v. Caceres, 440 U.S. 741 (remedies for statutory violations do not always include exclusion/dismissal)