After arrest by Immigration
Officers, Second Circuit upholds convictions of alleged mastermind of 1993
World Trade Center bombing over arguments that the U.S. court lacked
extraterritorial jurisdiction over his alleged offenses committed outside
United States
In 1992, Ramzi Yousef and Ahmad
Mohammad Ajaj met at a terrorist training camp on the border between
Afghanistan and Pakistan. They entered the U.S. in September of that year.
Officers of the Immigration and Naturalization Service (INS) arrested Ajaj at
John F. Kennedy Airport when they came across a “terrorist kit” in his luggage.
Yousef entered the U.S. with an Iraqi passport and claimed political asylum.
Yousef then assembled a group of
co-conspirators and started to make explosives. On February 26, 1993, they
drove an explosives-laden van into the World Trade Center garage. At about
12:18 p.m., they detonated it there, killing six people and injuring more than
1,000 others.
Afterwards, Yousef went to the
Philippines to keep up his terrorist activities. There he devised a plan to
blow up U.S. airliners as they flew across the Pacific. For a “test case,” they
placed a bomb on a Philippine airliner, which exploded and killed a Japanese
passenger. Philippine fire fighters later uncovered the plot when the
bomb-making chemicals in Yousef’s Manila apartment caught fire.
Authorities later caught up with
Yousef in Pakistan, and arrested Eyad Ismoil in Jordan. In the separate trials
for the conspiracy to blow up U.S. airliners and the bombing of the World Trade
Center, the jury found the defendants guilty on all counts. Yousef, Ismoil, and
Abdul Hakim Murad appealed. The U.S. Court of Appeals for the Second Circuit,
in a lengthy and scholarly opinion, affirms.
Inter alia, defendants contended
on appeal that the Government had exceeded its authority by prosecuting him in
the U.S. for conspiring to bomb U.S. airplanes in Southeast Asia. The Court
disagrees, citing 18 U.S.C. Section 32(a)(1). It prohibits damaging “any
aircraft in the special aircraft jurisdiction of the United States,” or “any
civil aircraft used, operated or employed in the interstate, overseas, or
foreign air commerce.” Thus, the text of the statute shows that Congress
intended it to apply extraterritorially. Consequently, the district court made
no mistake in exercising jurisdiction here.
As for the charge of placing
bombs on U.S. aircraft, Yousef also urged that 18 U.S.C. Section 32(b) provides
for jurisdiction over extraterritorial crimes only when “an offender is
afterwards found in the United States.” Here, authorities brought Yousef to the
U.S. involuntarily and thus he had not been “found in the United States” for
purposes of Section 32(b). The Court, however, is not convinced.
“Upon examining the persuasive
interpretation by other courts and an identical jurisdictional provision in a
related statute, ... as well as the purpose and plain language of 8 U.S.C.
Section 32(b), we hold that Yousef was ‘found in the United States’ within the
meaning of Section 32(b). In [United States v. Yunis, 288 U.S.App. D.C. 129,
924 F.2d 1086, 1092 (1991)], the United States Court of Appeals for the
District of Columbia Circuit had held that jurisdiction existed in a situation
similar to Yousef’s. Yunis, who claimed to be a member of Lebanon’s Amal
Militia, was indicted for hijacking a Royal Jordanian Airlines flight from
Beirut, Lebanon, and destroying it on the ground in Beirut. ...”
“After Yunis was indicted, FBI
agents lured Yunis to international waters off the coast of Cyprus, where they
arrested him ... Yunis then was brought to the United States, where, in a
superseding indictment, he was charged with the additional crime of air piracy
... The Court held that jurisdiction was properly established under the
‘afterwards found in the United States’ language of [the Anti-hijacking Act, 49
U.S.C. App. Section 1472(n)] because by the time Yunis was charged with air
piracy, he was already present in the United States and under arrest on other
charges. ...” [Slip op. 39-40]
The circumstances of this case
are at least as compelling as those in Yunis. Yousef was already under
indictment for taking part in the World Trade Center bombing before authorities
captured him in Pakistan and returned him to the U.S. While he was awaiting
trial in the U.S., a grand jury indicted him on separate charges arising out of
the conspiracy to bomb U.S. airliners in the Pacific area. Since Yousef was
already in lawful U.S. custody at the time, he was “found in the United
States,” making jurisdiction proper under 18 U.S.C. Section 32(b).
The Court finds further support
for this view in the Montreal Convention for the Suppression of Unlawful Acts
Against the Safety of Civil Aviation [Sept. 23, 1971, 24 U.S.T. 565, T.I.A.S.
No. 7570, see also S. Rep. No. 98-619 at 3682 (1984), reprinted in 1984
U.S.C.C.A.N. 3682]. “The purpose of the Montreal Convention is to ensure that
individuals who attack airlines cannot take refuge in a country because its
courts lack jurisdiction over someone who committed such an act against a
foreign-flag airline in another nation. ... Accordingly, the Convention
requires States parties to adopt legislation to assert jurisdiction over such
an offender whenever an offender is ‘present in’ the State and the State does
not extradite the offender to another State party. ...”
“Although Section 32 uses the
words ‘found in’ instead of ‘present in,’ we agree with the reasoning of the
Yunis court that, in enacting the statute to meet its obligations under the
Montreal Convention, ‘Congress intended the statutory term ‘found in the United
States’ to parallel the [Montreal] Convention’s ‘present in [a contracting
state’s] territory,’ a phrase [that] does not indicate the voluntariness
limitation urged’ by Yousef. ...”
“Moreover, were we to conclude
that the term ‘found in the United States’ did not permit a United States court
to assert jurisdiction over someone present in the country involuntarily,
Yousef’s extradition to the United States to be prosecuted for the bombing of
the World Trade Center – and his resulting detention here – would prevent his
prosecution for the later-charged aircraft attacks. Congress could not have
intended such an absurd result when it enacted Section 32 (b). Indeed, any
other interpretation would contravene the purpose and strain the plain language
of Section 32(b), which was adopted pursuant to the United States’ obligations
under the Convention.” [Slip Op. 43-44]
Yousef further contests the
district court’s finding that it had jurisdiction to try him for the bombing of
the Philippine airliner under customary international law based on the
“universality” principle. The Court disagrees. “First, irrespective of whether
customary international law provides a basis for jurisdiction over Yousef for
[these counts], United States law provides a separate and complete basis for
jurisdiction over each of these counts and, contrary to Yousef’s assertions,
United States law is not subordinate to customary international law or
necessarily subordinate to treaty-based international law and, in fact, may
conflict with both.”
“Further contrary to Yousef’s
claims, customary international law does provide a substantial basis for
jurisdiction by the United States over each of these counts, although not (as
the District Court held) under the universality principle. We conclude,
instead, that jurisdiction [over the Philippine airliner bombing]... was
proper, first, under domestic law, 18 U.S.C. Section 32; second, under the aut
dedere aut punire (‘extradite or prosecute’) jurisdiction created by the
Montreal Convention, as implemented in 18 U.S.C. Section 32 (destruction of
aircraft) and 49 U.S.C. Section 46502 (aircraft piracy); and third, under the
protective principle of the customary international law of criminal
jurisdiction.” [Slip op. 47-48] Citation: United States v. Yousef,
2003 WL 1786882 (2d Cir. April 4, 2003); see also Washington Post, April 5,
2003, page A8.
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