One of the interesting things about 18 USC 2339B (the 1996 material support law) and 18 USC 2339D (the prohibition on receipt of military-type training from designated foreign terrorist organizations) is that they extend, in theory, to noncitizens whose conduct occurs entirely outside the United States. Last week, Judge Castel (SDNY) held that the 5th Amendment Due Process Clause does not forbid application of those statutes in such circumstances, emphasizing that any requisite jurisdictional nexus is provided by the fact that the statutes apply only vis-a-vis orgnizations that have been designated by the Secretary of State to threaten U.S. national security (or the security of U.S. nationals) and where the defendant either knew of that designation or at least knew that the organization in question engaged in terrorism.
The case is United States v. Ahmed (SDNY Oct. 21, 2011). It involves Mohamed Ibrahim Ahmed, an Eritrean citizen (and resident of Sweden) who was arrested in Nigeria and later brought to the United States. He is charged with conspiring to provide, and actually providing, material support to al Shabaab (in the form of money as well as by providing himself to the group as personnel), and also with conspiring to obtain, and actually obtaining, military-type training from al Shabaab. He moved to dismiss these charges on the ground that the United States may not assert jurisdiction over him consistent with the 5th Amendment. Last week, Judge Castel denied the motion. Here is the relevant section of the opinion:
C. Statutory Basis for Extraterritorial Jurisdiction.
The Second Circuit expounded on the principles that govern the extraterritorial application of a federal criminal statue in United States v. Yousef, 327 F.3d 56 (2d Cir.2003). It suffices to note that a presumption against extraterritoriality may be overcome by the clear expression of the intent of lawmakers. Id. at 86. Both the material support and the military-type training statutes explicitly grant extraterritorial jurisdiction, as follows: extraterritorial jurisdiction may be exercised when the "offender is brought into ... the United States ...." 18 U .S.C. §§ 2339B(d)(1)(C) & 2339D(b)(3). There is no dispute that the defendant was involuntarily brought into the United States after the offense conduct. Indeed, the indictment alleges that the defendant "will be first brought to and arrested" in this district. (Indictment ¶ 7, 11, 13, 17.) This alone is a sufficient statutory predicate for jurisdiction.
The defendant urges that the assertion of "brought into" jurisdiction in this case would violate the Due Process Clause of the Fifth Amendment because there is not otherwise a sufficient nexus with the United States. (Def's Mem. Supp. Motion to Dismiss 11-13.) In support he relies upon the Second Circuit's agreement with the formulation of the Ninth Circuit that "[i]n order to apply extraterritorially a federal criminal statute to a defendant consistently with due process, there must be a sufficient nexus between the defendant and the United States, so that such application would not be arbitrary or fundamentally unfair." United States v. Yousef, 327 F.3d at 111 (quoting United States v. Davis, 905 F.2d 245, 24849 (9th Cir.1990)). Elsewhere in Yousef, the Court recognized that the nexus could be to the interests of the United States. Id. at 112 (offense conduct may not be "so unrelated to American interests as to render their prosecution in the United States arbitrary or fundamentally unfair").
For both the material support and military-type training offenses, the extrajurisdictional grant is set forth in the same statute that defines the elements of the offense. The elements of both statutes require that the organization have been designated by the Secretary of State as a "foreign terrorist organization." 18 U.S.C. §§ 2339B(a)(1) & (g)(6); 18 U.S.C. §§ 2339D(a) & (c)(4). One of the required elements for the designation by the Secretary of State is the finding that "the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States." 8 U.S.C. § 1189(a)(1)(C). Further, under the two statutes "the person must have knowledge that the organization is a designated terrorist organization ..., that the organization has engaged or engages in terrorist activity ..., or that the organization has engaged or engages in terrorism ...." 18 U.S.C. §§ 2339B(a)(1) & 2339D(a). Taken together, the designation and knowledge requirements ensure that there is a nexus to American interests so as to render the prosecution neither arbitrary nor fundamentally unfair.
*3 The Second Circuit recently rejected the argument that it is fundamentally unfair to subject a person to prosecution in the United States where they did not have fair warning that they could be prosecuted in the United States. "Fair warning does not require that the defendants understand that they could be subject to criminal prosecution in the United States so long as they would reasonably understand that their conduct was criminal and would subject them to prosecution somewhere." United States v. al Kassar, 2011 WL 4375654, *5 (2d Cir. Sept.21, 2011) (emphasis in original). The statute governing designation of foreign terrorist organizations requires that the organization engage in or have the capability and intent to engage in terrorist activity. 8 U.S.C. § 1189(a)(1)(b). Terrorist activity is defined to include activities such as hijacking, hostage taking, violent attack directed at foreign officials or American diplomats, assassination, use of any biological or chemical agent or nuclear weapon or explosive or firearm to endanger the safety of one or more persons or to damage property. 8 U.S.C. § 1182(a)(3)(B)(iii). These acts are "self-evidently criminal." United States v. al Kassar, 2011 WL 4375654 at *4. One who renders material support to or receives military-type training from an organization that he knows is a foreign terrorist organization ought to reasonably expect that he would be subject to prosecution in some jurisdiction. That is all al Kassar requires in this respect. Thus, the Due Process challenge fails.
Finally, the two statutes also confer jurisdiction where "the offense occurs in or affects interstate or foreign commerce ...." 18 U.S.C. §§ 2339B(d)(1)(E) & 2339D(b)(5). The indictment also alleges that the offenses occurred in and affected interstate and foreign commerce. (Indictment ¶¶ 7, 11, 13, 17.) The defendant asserts that the government will be unable to prove any impact on interstate commerce or foreign commerce. (Def's Mem. 8-11.) Specifically, he asserts that foreign commerce requires commerce between the United States and a foreign country and not between two or more foreign countries. (Def's Mem. 10); see United States v. Weingarten, 632 F.3d 60, 70-71 (2d Cir.2011) (construing "travel[ ] in foreign commerce," as used in 18 U.S.C. § 2423(b)). First, the "brought into" provision provides a sufficient statutory basis for jurisdiction. Second, whether the government can adequately prove an effect on interstate and foreign commerce should not be resolved prior to trial as long as the indictment itself is sufficient on its face.