COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED David N. Kelley and Michael J. Garcia, Assistant United States Attorneys (Mary Jo White, United States Attorney, on the brief, David Raskin, Adam B. Siegel, Jennifer G. Rodgers, James J. Benjamin, Jr., Baruch Weiss, Jamie L. Kogan, Christine H. Chung, Ira M. Feinberg, Assistant United States Attorneys, of counsel), United States Attorney's Office for the Southern District of New York, New York, NY, for Appellee United States of America.
Bernard V. Kleinman and Steven Z. Legon, White Plains, NY, for Defendant-Appellant Ramzi Ahmed Yousef.
Louis R. Aidala (Joan Palermo, on the brief), New York, NY, for Defendant-Appellant Eyad Ismoil.
Jerry L. Tritz (Amy J. Porter, on the brief), Law Office of Jerry L. Tritz, New York, NY, for Defendant-Appellant Abdul Hakim Murad.
Before: WALKER, Chief Judge, WINTER and CABRANES, Circuit Judges.
JOHN M. WALKER, Jr., Chief Judge, RALPH K. WINTER and JOSÉ A. CABRANES, Circuit Judges.
TABLE OF CONTENTS
INTRODUCTION ........................................................................77
GENERAL BACKGROUND ..................................................................78
I. World Trade Center Bombing ..............................................78
II. Airline Bombing .........................................................79
AIRLINE BOMBING CASE ................................................................80
BACKGROUND ........................................................................80
I. Preparation for Airline Bombing Conspiracy ..............................80
II. Discovery of Airline Bombing Plot .......................................81
III. Arrests of Shah, Yousef, and Murad ......................................82
DISCUSSION ........................................................................85
I. Assertion of Extraterritorial Jurisdiction Over Defendants Yousef
and Murad .............................................................85
A. Jurisdiction to Prosecute Defendants' Extraterritorial Conduct
Under Federal Law .................................................86
1. Applicable Law ..................................................86
2. Counts Thirteen and Fourteen ....................................86
3. Count Twelve ....................................................87
4. Count Nineteen ..................................................88
B. Exercise of United States Extraterritorial Jurisdiction and
Customary International Law .......................................90
1. Bases of Jurisdiction over the Counts Charged ...................92
a. Relationship between Domestic and International Law
in Yousef's Prosecution ...................................92
b. Treaty-Based Jurisdiction: The Hague and Montreal
Conventions ...............................................94
2. Jurisdiction over Counts Twelve through Eighteen ................96
3. Jurisdiction over Count Nineteen ................................97
a. The District Court's Holding and Yousef's Challenges
on Appeal .................................................97
i. The District Court's Opinion ..........................98
ii. The Use of Authority in Determining Customary
International Law ...................................99
iii. The Universality Principle Provides for Jurisdiction
over Only a Limited Set of Acts Violating
the Law of Nations .................................103
b. Jurisdiction Is Proper Under United States Laws
Giving Effect to Its Obligations Under the Montreal
Convention ...............................................108
c. In Any Event, Jurisdiction Over Count Nineteen Is
Proper under the Protective Principle of Customary
International Law ........................................110
C. Due Process Claims .................................................111
1. Due Process Nexus ..............................................111
2. Due Process in Conduct of Trial ................................112
D. Venue in Southern District of New York .............................114
E. Doctrine of Specialty ..............................................115
II. Conviction of Yousef Under 18 U.S.C. § 2332 .......................116
A. Prosecutorial Discretion Under Section 2332(d) .....................116
B. Failure to Charge Jury on Intent to Retaliate ......................117
III. District Court Failure to Sua Sponte Voir Dire the Jury Mid-Trial
Regarding the Pope and the Roman Catholic Church .....................118
IV. Liberation Army Letter .................................................120
A. Admission of Liberation Army Letter ................................121
B. Failure to Redact Liberation Army Letter ...........................122
V. District Court Denial of Murad's Motion to Suppress His Post-Arrest
Statement ............................................................122
A. District Court Decision ............................................123
B. Standard of Review .................................................124
C. Murad's Alleged Request for a Lawyer ...............................124
D. Voluntariness of Confession ........................................125
1. FBI Coercion ...................................................125
2. Hegarty's Testimony ............................................126
3. Murad's Allegations of Torture by Philippine Officials .........126
4. United States Government's Lack of Knowledge Regarding
Philippine Mistreatment ......................................127
E. Harmless Error .....................................................128
VI. Murad's Sixth Amendment Right to Present a Defense .....................128
A. Applicable Law .....................................................128
B. Reports by Amnesty International and the United States
Department of State Regarding Abusive Treatment by
Philippine Police ................................................128
C. Discovery from the Philippines .....................................129
D. Jury Charge on Voluntariness .......................................130
VII. "Bully" Charge on Circumstantial Evidence of Intent ....................131
VIII. Sufficiency of the Evidence on Yousef's Attempt Convictions ............133
WORLD TRADE CENTER CASE ............................................................135
BACKGROUND .......................................................................135
I. Indictment and Apprehension of Yousef and Ismoil .......................135
II. The World Trade Center Bombing Trial ...................................135
DISCUSSION .......................................................................137
I. Yousef's Pre-Trial Motions .............................................137
A. Motion to Dismiss the Indictment ...................................137
B. Motion to Suppress .................................................139
1. Attachment of Sixth Amendment Right to Counsel Upon
Indictment for the World Trade Center Bombing ................140
2. Invocation of Right to Counsel .................................141
3. Sixth Amendment Rights Based on Assignment of Asylum
Counsel ......................................................142
4. Purported Due Process Requirement of Appointment of
Counsel ......................................................143
5. Voluntariness of Yousef's Post-Arrest Statements ...............144
II. Ismoil's Motion to Suppress His Statement to Jordanian Authorities .....144
III. The Daubert Hearing ....................................................147
IV. Yousef's Motion to Sever ...............................................149
V. The Admission of Ismoil's Redacted Statement ...........................152
VI. Yousef's Motion for a Change of Venue ..................................155
VII. Exclusion of Evidence of Government's Inconsistent Theories ............155
VIII. Admission of Government's Fingerprint Evidence and Telephone
Call Charts ..........................................................157
IX. Jury Instructions Concerning Ismoil's Knowledge ........................158
X. Jury Instruction on "Aiding and Abetting" ..............................160
XI. Failure to Dismiss the Alternate Jurors ................................160
XII. Cumulative Violation of Right to Fair Trial ............................161
SENTENCING ISSUES ..................................................................161
I. Ex Post Facto Claim ....................................................162
II. Length of Sentences ....................................................162
III. Fines and Restitution ..................................................164
IV. Special Conditions of Confinement ......................................165
POST JUDGMENT ISSUES ...............................................................166
I. "Scarpa Materials" .....................................................166
II. Recusal ................................................................169
CONCLUSION .........................................................................170
I. Airline Bombing Case ...................................................170
II. World Trade Center Case ................................................171
III. Sentencing Issues ......................................................172
IV. Post-Judgment Issues ...................................................173
INTRODUCTION
Defendants-appellants Ramzi Yousef, Eyad Ismoil, and Abdul Hakim Murad appeal from judgments of conviction entered in the United States District Court for the Southern District of New York (Kevin Thomas Duffy, Judge) on April 13, June 2, and June 15, 1998, respectively. Judge Duffy presided over two separate jury trials. In the first trial, Yousef, Murad, and Wali Khan Amin Shah were tried on charges relating to a conspiracy to bomb United States commercial airliners in Southeast Asia. In the second trial, Yousef and Ismoil were tried for their involvement in the February 1993 bombing of the World Trade Center in New York City. Yousef, Ismoil, and Murad now appeal from their convictions, asserting a number of claims. Yousef and Ismoil also appeal from the District Court's denial of several of their post-judgment motions. In reviewing these claims, we view the evidence in the light most favorable to the Government, as required by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
GENERAL BACKGROUND1
I. World Trade Center Bombing
The conspiracy to bomb the World Trade Center began in the Spring of 1992, when Yousef met Ahmad Mohammad Ajaj at a terrorist training camp on the border of Afghanistan and Pakistan. After formulating their terrorist plot, Yousef and Ajaj traveled to New York together in September 1992. In Ajaj's luggage, he carried a "terrorist kit" that included, among other things, bomb-making manuals. After Yousef and Ajaj arrived at John F. Kennedy International Airport, inspectors of the Immigration and Naturalization Service ("INS") discovered the "terrorist kit" in Ajaj's luggage and arrested him. Although Yousef was also stopped, he and Ajaj did not disclose their connection to one another, and INS officials allowed Yousef to enter the United States.2
Once in New York, Yousef began to put together the manpower and the supplies that he would need to carry out his plan to bomb the World Trade Center. Yousef assembled a group of co-conspirators to execute his plan, including defendants Mohammad Salameh, Nidal Ayyad, Mahmud Abouhalima, and Abdul Rahman Yasin. Next, Yousef began accumulating the necessary ingredients for the bomb. He ordered the required chemicals, and his associates rented a shed in which to store them. Yousef and Salameh established their headquarters at an apartment they rented in Jersey City, New Jersey, an urban center located across the Hudson River from Manhattan. The apartment also functioned as their bomb-making factory.
In December 1992, Yousef contacted Ismoil, who was then living in Dallas, Texas. On February 22, 1993, Ismoil joined Yousef and the others in New York to help complete the bomb preparations.
On February 26, 1993, Yousef and Ismoil drove a bomb-laden van onto the B-2 level of the parking garage below the World Trade Center. They then set the bomb's timer to detonate minutes later. At approximately 12:18 p.m. that day, the bomb exploded, killing six people, injuring more than a thousand others, and causing widespread fear and more than $500 million in property damage.
Soon after the bombing, Yousef and Ismoil fled from the United States. Yousef and Ismoil were indicted for their participation in the bombing on March 31, 1993 and August 8, 1994, respectively. Yousef was captured in Pakistan nearly two years after the bombing, and Ismoil was arrested in Jordan a little over two years after the attack. Both were returned to the United States to answer the charges in the indictment.
II. Airline Bombing
A year and a half after the World Trade Center bombing, Yousef entered Manila, the capital of the Philippines, under an assumed name. By September 1994, Yousef had devised a plan to attack United States airliners. According to the plan, five individuals would place bombs aboard twelve United States-flag aircraft that served routes in Southeast Asia. The conspirators would board an airliner in Southeast Asia, assemble a bomb on the plane, and then exit the plane during its first layover. As the planes continued on toward their next destinations, the timebombs would detonate. Eleven of the twelve flights targeted were ultimately destined for cities in the United States.
Yousef and his co-conspirators performed several tests in preparation for the airline bombings. In December 1994, Yousef and Wali Khan Amin Shah placed one of the bombs they had constructed in a Manila movie theater. The bomb exploded, injuring several patrons of the theater. Ten days later, Yousef planted another test bomb under a passenger's seat during the first leg of a Philippine Airlines flight from Manila to Japan. Yousef disembarked from the plane during the stopover and then made his way back to Manila. During the second leg of the flight, the bomb exploded, killing one passenger, a Japanese national, and injuring others.
The plot to bomb the United States-flag airliners was uncovered in January 1995, only two weeks before the conspirators intended to carry it out. Yousef and Murad were burning chemicals in their Manila apartment and accidentally caused a fire. An apartment security guard saw the smoke coming from the apartment and called the fire department. After the firemen left, the Philippine police arrived at the apartment, where they discovered chemicals and bomb components, a laptop computer on which Yousef had set forth the aircraft bombing plans, and other incriminating evidence. Philippine authorities arrested Murad and Shah, though Shah escaped and was not recaptured until nearly a year later. Yousef fled the country, but was captured in Pakistan the next month.
* * *
On February 21, 1996, a grand jury in the Southern District of New York filed a twenty-count superseding indictment against the defendants and others. Counts One through Eleven charged Yousef and Ismoil with various offenses arising from their participation in the February 26, 1993 bombing of the World Trade Center. Counts Twelve through Nineteen charged Yousef, Murad, and Shah with various crimes relating to their conspiracy to bomb United States airliners in Southeast Asia in 1994 and 1995.3
The trial of Yousef, Murad, and Shah on the airline bombing charges began on May 29, 1996 and ended on September 5, 1996, when the jury found all three defendants guilty on all counts. Yousef and Ismoil's trial on charges relating to the World Trade Center bombing began on July 15, 1997 and concluded on November 12, 1997, when the jury found both defendants guilty on all counts.
Yousef was sentenced for both convictions on January 8, 1998. For the World Trade Center convictions he was sentenced principally to a total of 240 years of imprisonment: 180 years on Counts One through Eight, plus two 30-year terms on Counts Nine and Ten for violations of 18 U.S.C. § 924(c),4 to be served consecutively to the 180-year sentence and to each other. For the airline bombing convictions, Yousef was sentenced principally to a term of life imprisonment, to be served consecutively to his 240-year sentence for the World Trade Center bombing.
On April 3, 1998, Ismoil was sentenced principally to 180 years of imprisonment on Counts One through Six, Eight, and Eleven. Additionally, Ismoil was sentenced to two 30-year terms on Counts Nine and Ten to be served consecutively to each other and to the 180-year sentence, for a total of 240 years of imprisonment.
On May 15, 1998, Murad was sentenced principally to life imprisonment on Counts Twelve through Sixteen, plus two 30-year sentences for Counts Seventeen and Eighteen, all to be served consecutively.
AIRLINE BOMBING CASE
BACKGROUND
I. Preparation for Airline Bombing Conspiracy
In August 1994, after the bombing of the World Trade Center, and his flight from the United States, Yousef traveled to Manila under an alias. By September, Yousef had developed an elaborate plan to bomb a dozen United States-flag aircraft and recorded that plan on his laptop computer. According to the plan, five individuals would plant bombs aboard twelve United States-flag aircraft operating on routes in Southeast Asia. Each conspirator would board an airliner in Southeast Asia, assemble a bomb on board the plane, and leave the aircraft at its first stop. The timebombs would detonate during the second leg of each of the targeted flights. Eleven of the twelve flights were ultimately destined for cities in the United States. Each of the targeted aircraft was capable of carrying up to 280 people.
After Yousef had formulated his airline bombing plan, he began to acquire the information and the ingredients necessary to carry it out. Yousef compiled detailed flight data on the twelve aircraft, including their departing times, flight numbers, flight durations and aircraft types, and transferred this information to his laptop computer. In early November 1994, Yousef placed a large order for chemicals and equipment in Manila, and, during the next two months, he and his co-conspirators performed several tests in preparation for the aircraft bombings. On December 1, 1994, Yousef and Shah conducted a test by placing a bomb under a patron's seat at the Greenbelt movie theater in Manila. At 10:30 p.m., the bomb exploded, injuring several people. Ten days later, on December 11, Yousef planted another test bomb under the seat of a passenger on a Philippine Airlines jet flying from Manila to Cebu (another city in the Philippines) and then to Japan. Yousef disembarked from the plane in Cebu. Two hours after the aircraft departed from Cebu, the bomb exploded, killing one Japanese passenger and injuring others.
In late December, Murad traveled from the Middle East to the Philippines, and Shah, who had left the Philippines immediately after the movie theater bombing, returned to Manila under an assumed name. Thus, by January 1995, the conspirators were assembled in Manila and ready to carry out their attack on twelve United States flag aircraft. But for a fire in the defendants' apartment in Manila, the plan might have succeeded.
II. Discovery of Airline Bombing Plot
On January 6, 1995, Yousef was in the Manila apartment burning chemicals that he and Murad had obtained to construct the aircraft bombs. At approximately 10:45 p.m., an apartment security guard noticed Yousef and Murad running down the stairs carrying their shoes. After Yousef and Murad went back to their apartment, their neighbors observed smoke coming from the window of their apartment and alerted apartment security. The security guard proceeded to the apartment to investigate, finding Murad and Yousef by their front door. The defendants denied that there was a fire in their apartment and would not permit the guard inside to inspect. The guard then returned to his post to contact the police.
After trying to contact the local police to no avail, the security guard returned to the apartment to investigate further. At this point, Murad let the security guard into the apartment, while Yousef waited outside. The guard observed a salt-like substance and burn marks in the area of the sink. Murad told the guard that they had been mixing ingredients to make firecrackers for a late New Year's celebration. The guard then went back to his station and had the receptionist call the fire department. In the meantime, Yousef left the apartment complex.
After the firefighters had come and gone, police arrived at the apartment. The security guard let the police into the apartment, where they found, among other things, cartons of chemicals, Casio timers, wrist watches with wires attached, and juice bottles with unknown substances inside. The officers then waited in the lobby of the apartment complex for Murad and Yousef to return. Murad returned and, after he was approached by one of the officers, tried to flee. The police quickly apprehended him and took him into custody.
While in custody at the apartment, Murad called Yousef's cellular telephone. Almost immediately after receiving this call, Yousef made arrangements to leave the country. He purchased a plane ticket to Singapore and fled the Philippines approximately five hours after Murad's call.
While Yousef was in flight from the country, the police continued to search the Manila apartment. In addition to the bomb-related materials, police discovered photographs of Pope John Paul II, Bibles, and confession materials; the Pope was scheduled to visit Manila on January 12, 1995, just five days later. The police collected some of the items they found in the apartment and then applied for a warrant to search the apartment.5 A Philippine judge issued a search warrant, and members of the local police explosive ordnance disposal unit ("EOD") conducted a thorough investigation of the apartment. They videotaped the contents of the apartment and seized several items, including Yousef's laptop computer, papers and books with instructions for making bombs, a chemical dictionary, and many chemicals and mechanical components which could have been used to make bombs. On Yousef's laptop computer, the police found various files including a letter claiming responsibility for future attacks against American targets by the "Fifth Division of the Liberation Army."
III. Arrests of Shah, Yousef, and Murad
On January 11, 1995, several days after their search of the Manila apartment, Manila police arrested Shah. Police apprehended Shah after they determined that a pager called by Yousef following Murad's arrest was registered in the name of Shah's girlfriend. Shah escaped from custody one week later, only to be recaptured on December 11, 1995 in Malaysia by Malaysian police. Shah was then delivered to the custody of the United States, where he agreed to speak to Federal Bureau of Investigation ("FBI") agents after he signed a written waiver of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
In early February 1995, the United States Embassy in Islamabad, Pakistan received a tip that Yousef was somewhere in Islamabad. On February 7, 1995, Pakistani officials, together with a special agent from the United States Department of State, arrested Yousef at a guest house in Islamabad. The next day, agents from the FBI and the United States Secret Service arrived from the United States, took Yousef into custody, and transported him back to the United States. On the plane, Yousef was informed of the charges against him pertaining to the World Trade Center bombing and advised of his rights. Without the use or need of an interpreter, he waived his Miranda rights and made an extensive confession about the World Trade Center bombing plot.6
Philippine authorities turned Murad over to FBI agents in Manila on April 12, 1995. During the plane ride to the United States, Murad was read his Miranda rights twice and given written copies of the waiver in both English and Arabic. Murad indicated that he understood his rights and waived them in writing. He then agreed to speak to the FBI agents on the airplane without an interpreter. Murad told the agents that his part in the aircraft bombing scheme was to board a United Airlines flight in Singapore with its first stop in Hong Kong and to plant a bomb onboard the plane. After arriving in Hong Kong, Murad was to take a different flight back to Singapore, planting a bomb aboard that plane as well. Murad told the agents that he expected the resulting explosion to tear a hole in the aircraft, causing it to crash in the Pacific Ocean. He also asserted his belief that co-conspirators would bomb other flights. Murad stated that the goal of the attacks was to "make the American people and the American government suffer for their support of Israel." Direct Testimony of Francis J. Pellegrino, Aug. 5, 1996, Airline Bombing Trial Transcript ("ATr."), at 3501.
Murad described the explosive device components of the bombs, which matched items seized at the Manila apartment he shared with Yousef. Murad stated that he had been told that the Philippine Airlines bombing of December 11, 1994 was a testrun to ensure that the chemicals and timing device worked correctly.
On February 21, 1996, a grand jury in the Southern District of New York indicted Yousef, Murad, and Shah for various crimes relating to their conspiracy to bomb United States airliners in Southeast Asia in 1994 and 1995. Counts Twelve through Twenty of the original indictment (S12 93 Cr. 180(KTD)) were renumbered from One to Nine for use in the airline bombing trial.
In Count Twelve, the defendants were indicted for violating 18 U.S.C. § 3717 by conspiring to violate 18 U.S.C. § 32(a)(1) by destroying aircraft in the special administrative jurisdiction of the United States and civil aircraft operated in foreign air commerce; and by conspiring to violate 18 U.S.C. § 32(a)(2) by placing bombs on board such aircraft, thereby endangering the aircraft's safety.8
Count Thirteen charged the defendants with violating 18 U.S.C. § 32(a)(1) and (7) by attempting to destroy an aircraft within the special aircraft jurisdiction of the United States and civil aircraft operated in foreign air commerce.9 Count Fourteen charged the defendants with violating 18 U.S.C. § 32(a)(2) and (7) by attempting to place a bomb on such aircraft and endangering the safety of such aircraft.
In Count Fifteen, the defendants were charged with violating 18 U.S.C. § 2332(b) and (d) by conspiring to kill United States nationals while they were located outside of the United States.10 In Count Sixteen, the defendants were charged with violating 18 U.S.C. § 2332a by conspiring to use a weapon of mass destruction outside the United States against United States nationals.11
The defendants were charged in Counts Seventeen and Eighteen with violating 18 U.S.C. §§ 924(c) and 2 by using and carrying a destructive device during and in connection with a violent crime.12 The violent crime underlying Count Seventeen was the conspiracy to bomb aircraft charged in Count Twelve. In Count Eighteen, the underlying violent crime was the conspiracy to kill United States nationals charged in Count Fifteen.
Yousef alone was charged in Count Nineteen with violating 18 U.S.C. §§ 32(b)(3), 34, and 2 for placing a bomb on a civil aircraft registered in a foreign country while that aircraft was in service, to wit, Yousef's bombing of the Philippine airlines flight that killed one passenger.13
Shah alone was charged in Count Twenty with violating 18 U.S.C. § 751(a) by attempting to escape from the Metropolitan Correctional Center in New York on February 6, 1996.14
Prior to trial, the defendants moved to suppress their confessions, but the District Court denied those motions.
The trial of Yousef, Murad, and Shah on the airline bombing charges began on May 29, 1996 and ended on September 5, 1996, when the jury found all three defendants guilty on all counts. The District Court sentenced Yousef principally to a term of life imprisonment on all eight counts. The District Court sentenced Murad principally to life imprisonment on Counts Twelve through Sixteen, plus two 30-year sentences for Counts Seventeen and Eighteen, all to be served consecutively.
On appeal, defendants-appellants Yousef and Murad attack their convictions and sentences, raising a number of issues.15
DISCUSSION
I. Assertion of Extraterritorial Jurisdiction Over Defendants Yousef and Murad16
Yousef contends that the Government exceeded its authority by trying him in the United States for his conduct in the aircraft bombing case. In particular, he asserts that the charges alleged in Counts Twelve, Thirteen, Fourteen and Nineteen should be dismissed because 18 U.S.C. § 32 cannot be applied to conduct outside the United States. He further claims that he cannot be convicted of the charge set forth in Count Nineteen because he was not "found" within the United States as required by 18 U.S.C. § 32(b). Yousef also contends that his prosecution violates customary international law limiting a nation's jurisdiction to proscribe conduct outside its borders and is contrary to the Due Process Clause of the Fifth Amendment of the Constitution.17 In addition, Yousef asserts that the District Court violated the venue provisions of the Constitution and Federal Rule of Criminal Procedure 18. Finally, Yousef argues in his reply brief that his indictment and conviction for the airline bombing conspiracy violated the extradition treaty between the United States and Pakistan. See United Kingdom Extradition, Dec. 22, 1931, U.S.-U.K., 1931 U.S.T. LEXIS 60, 12 Bevans 482.
A. Jurisdiction to Prosecute Defendants' Extraterritorial Conduct Under Federal Law
1. Applicable Law
It is beyond doubt that, as a general proposition, Congress has the authority to "enforce its laws beyond the territorial boundaries of the United States." EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991). Although there is a presumption that Congress does not intend a statute to apply to conduct outside the territorial jurisdiction of the United States, see Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (1949), that presumption can be overcome when Congress clearly expresses its intent to do so, id.; Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993); United States v. Gatlin, 216 F.3d 207, 211 (2d Cir.2000). As long as Congress has indicated its intent to reach such conduct, a United States court is "bound to follow the Congressional direction unless this would violate the due process clause of the Fifth Amendment." United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir.1983) (internal quotation marks omitted). Moreover, the presumption against extraterritorial application does not apply to those "criminal statutes which are, as a class, not logically dependent on their locality for the Government's jurisdiction." United States v. Bowman, 260 U.S. 94, 98, 43 S.Ct. 39, 67 L.Ed. 149 (1922).
In determining whether Congress intended a federal statute to apply to overseas conduct, "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963) (internal quotation marks omitted). Nonetheless, in fashioning the reach of our criminal law, "Congress is not bound by international law." Pinto-Mejia, 720 F.2d at 259. "If it chooses to do so, it may legislate with respect to conduct outside the United States, in excess of the limits posed by international law." Id.; see also United States v. Quemener, 789 F.2d 145, 156 (2d Cir.1986); United States v. Allen, 760 F.2d 447, 454 (2d Cir.1985).
2. Counts Thirteen and Fourteen
Counts Thirteen and Fourteen charged Yousef, Murad and Shah with violating 18 U.S.C. § 32(a). Count Thirteen alleged that they attempted to damage aircraft in the special aircraft jurisdiction of the United States and civil aircraft operated in foreign air commerce, in violation of § 32(a)(1) and (7). Count Fourteen charged them with violating § 32(a)(2) and (7) by attempting to place a bomb on such aircraft in Count Fourteen.
Section 32(a)(1) prohibits damaging "any aircraft in the special aircraft jurisdiction of the United States" or "any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce." Section 32(a)(2) makes it a crime to place a destructive device on board any such aircraft if it would be likely to endanger the aircraft's safety. Section 32(a)(7) prohibits an attempt or conspiracy to do anything forbidden under § 32(a).
The text of the applicable federal statutes makes it clear that Congress intended § 32(a) to apply extraterritorially. Under 49 U.S.C. § 46501(2)(A) the "special aircraft jurisdiction of the United States" is defined to include any "civil aircraft of the United States" while that aircraft is in flight. "Civil aircraft of the United States," in turn, is defined in 49 U.S.C. § 40102(a)(17) as "an aircraft registered under Chapter 441" of Title 49, which requires registration of any United States-flag aircraft. See 49 U.S.C. §§ 44101-44103. Accordingly, § 32(a) covers any United States-flag aircraft while in flight, wherever in the world it may be. In addition, Congress defined "foreign air commerce" to cover "the transportation of passengers or property by aircraft ... between a place in the United States and a place outside the United States." 49 U.S.C. § 40102(a)(22).18
The District Court was correct to hold that the twelve aircraft targeted in the instant case fell within one or another category of craft protected by United States law. The relevant aircraft were all United States-flag aircraft targeted while in flight, and were therefore in "the special aircraft jurisdiction of the United States." 18 U.S.C. § 32(a)(1). Furthermore, all but one of the aircraft targeted in the conspiracy charged in Counts Thirteen and Fourteen were civil aircraft carrying passengers destined for the United States,19 and were therefore "civil aircraft used, operated, or employed in ... overseas, or foreign air commerce." 18 U.S.C. § 32(a)(1); see also 49 U.S.C. § 40102(a)(22) (defining "foreign air commerce" as "the transportation of passengers or property by aircraft for compensation ... between a place in the United States and a place outside the United States when any part of the transportation or operation is by aircraft"). Accordingly, it was proper for the District Court to exercise jurisdiction over the extraterritorial crimes charged in Counts Thirteen and Fourteen.
3. Count Twelve
In Count Twelve, the defendants were charged with violating 18 U.S.C. § 371 by conspiring to place bombs on board aircraft and destroy aircraft, in violation of 18 U.S.C. § 32(a)(1) and (2). The District Court concluded that, because it had jurisdiction over the substantive crimes charged — including attempted destruction of aircraft in the special aircraft jurisdiction of the United States — it also had derivative jurisdiction over the conspiracy charges. United States v. Yousef, 927 F.Supp. 673, 682 (S.D.N.Y.1996).
We agree. Indeed, this conclusion is a simple application of the rule enunciated by the Supreme Court as long ago as 1922 in Bowman, that Congress is presumed to intend extraterritorial application of criminal statutes where the nature of the crime does not depend on the locality of the defendants' acts and where restricting the statute to United States territory would severely diminish the statute's effectiveness. See Bowman, 260 U.S. at 98, 43 S.Ct. 39; United States v. Plummer, 221 F.3d 1298, 1304-06 (11th Cir.2000) (relying on Bowman to conclude that the attempt provision of 18 U.S.C. § 545, which criminalized the smuggling of goods into the United States, applies extraterritorially); United States v. Felix-Gutierrez, 940 F.2d 1200, 1204-05 (9th Cir.1991) (relying on Bowman to apply the accessory-after-the-fact prohibition set forth in 18 U.S.C. § 3 to conduct outside the United States where there was extraterritorial jurisdiction over the underlying crime). In the instant case, if Congress intended United States courts to have jurisdiction over the substantive crime of placing bombs on board the aircraft at issue, it is reasonable to conclude that Congress also intended to vest in United States courts the requisite jurisdiction over an extraterritorial conspiracy to commit that crime. Cf. id.; United States v. Cotten, 471 F.2d 744, 750 (9th Cir.1973) ("Bowman implicitly gives extraterritorial effect to 18 U.S.C. § 371."); Brulay v. United States, 383 F.2d 345, 349-50 (9th Cir.1967) (extending smuggling statute, 18 U.S.C. § 545, to conduct outside the United States, at least with respect to citizens of the United States, and extending "18 U.S.C. § 371, the conspiracy section ... along with it"). We therefore hold that the District Court was correct to conclude that it had "extraterritorial jurisdiction" over the ancillary charges detailed in Count Twelve.
4. Count Nineteen
In Count Nineteen, Yousef alone was charged with violating 18 U.S.C. § 32(b)(3) for placing a bomb on a civil aircraft registered in another country. Specifically, Yousef was charged with planting a bomb on board a Philippine Airlines flight traveling from the Philippines to Japan on December 11, 1994. The aircraft was a civil aircraft registered in the Philippines.
There is no dispute that Congress intended § 32(b) to apply to attacks on non-United States-flag aircraft. The statute applies expressly to placing a bomb on aircraft registered in other countries while in flight, no matter where the attack is committed, and provides for jurisdiction over such extraterritorial crimes whenever, inter alia, "an offender is afterwards found in the United States." 18 U.S.C. § 32(b).
Yousef argues that he was wrongly charged in Count Nineteen because he was brought here against his will when Pakistan transferred him to United States custody for prosecution on charges relating to the World Trade Center bombing and, therefore, he was not "found in the United States" within the meaning of § 32(b). To support his position, Yousef points out that in another statute, 18 U.S.C. § 1651, Congress differentiates between one who is forcibly brought into the country and one who is found in the United States: "Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life." (emphasis supplied).
Yousef reasons that if being "found" in the United States merely requires a defendant's presence here, then the "afterwards brought into" language of § 1651 would be superfluous. He thus concludes that because he was brought to the United States involuntarily, he was not "found in the United States" for purposes of § 32(b).
Upon examining the persuasive interpretation by other courts of an identical jurisdictional provision in a related statute, see United States v. Rezaq, 134 F.3d 1121, 1130-32, 1143 (D.C.Cir.1998); United States v. Yunis, 924 F.2d 1086, 1092 (D.C.Cir.1991), as well as the purpose and plain language of 18 U.S.C. § 32(b), we hold that Yousef was "found in the United States" within the meaning of § 32(b).
In Yunis, the United States Court of Appeals for the District of Columbia 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. Yunis, 924 F.2d at 1089. Initially, Yunis was charged with conspiracy, hostage taking, and aircraft damage. Id. After Yunis was indicted, FBI agents lured Yunis to international waters off the coast of Cyprus, where they arrested him on these charges. Yunis then was brought to the United States, where, in a superseding indictment, he was charged with the additional crime of air piracy under the Antihijacking Act, 49 U.S.C.App. § 1472(n) (1988).20 Id. at 1090. The Court held that jurisdiction properly was established under the "afterwards found in the United States" language of § 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.21 Id. at 1092; see also United States v. Rezaq, 134 F.3d at 1132 (relying on Yunis to hold that "section 1472(n)'s `afterward found in the United States' language did not preclude jurisdiction even though the United States brought Rezaq into its territory against his will").
The instant case presents circumstances at least as compelling as those in Yunis for asserting criminal jurisdiction over Yousef. Yousef was already under indictment for his participation in the World Trade Center bombing before he was seized in Pakistan and returned to the United States.22 Only after he was in the United States awaiting trial for the World Trade Center charges did a grand jury indict him on separate charges relating to the airline bombing plot.23 By the time Yousef was charged with the crime detailed in Count Nineteen, therefore, he was already lawfully in federal custody in the United States. Accordingly, Yousef was "found in the United States," and jurisdiction is proper under 18 U.S.C. § 32(b).
Indeed, any other interpretation would contravene the purpose and strain the plain language of § 32(b), which was adopted pursuant to the United States' obligations under the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, ("the Montreal Convention"), 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. See 24 U.S.T. at 565, art. 5. 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. Id. Although § 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. Yunis, 924 F.2d at 1091-92 (applying similar reasoning to analogous statute, 49 U.S.C. § 46502, formerly 49 U.S.C.App. § 1472(n)). 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 § 32(b). Cf. United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981) ("absurd results are to be avoided"); Adams-Mitchell Co. v. Cambridge Distrib. Co., 189 F.2d 913, 923 (2d Cir.1951) ("if such [a] [statutory] interpretation led to absurd results, and thus imputed to Congress an irrational purpose, it should be spurned").
Finally, we reject Yousef's argument that the plain meaning of "found" requires that Yousef have been found in the United States "by chance." Although "come upon by chance" is one possible definition of the verb "to find," several other possible definitions of this verb do not incorporate this element of chance or happenstance. See 5 Oxford English Dictionary 922 (2d ed. 1989) (defining "find" (and its past tense, "found") to mean "[t]o discover or attain by search or effort ... [to] obtain by searching," as well as "[t]o come upon by chance or in the course of events"); see also Webster's New Third International Dictionary 851 (1976) (defining "find" as "to secure or obtain (something needed or desirable) by effort or management" (parentheses in original)). At most, the term "found" is ambiguous with respect to the issue of voluntary presence, and this ambiguity should be construed in favor of implementing the purposes of the Montreal Convention that are evident from its text read as a whole.
We thus hold that Yousef was "found in the United States" as required by § 32(b).
B. Exercise of United States Extraterritorial Jurisdiction and Customary International Law
On appeal, Yousef challenges the District Court's jurisdiction over Counts Twelve through Nineteen of the indictment by arguing that customary international law does not provide a basis for jurisdiction over these counts and that United States law is subordinate to customary international law and therefore cannot provide a basis for jurisdiction.24 See Yousef Br. at 136-37, 141-48. He particularly contests the District Court's conclusion that customary international law permits the United States to prosecute him under the so-called universality principle for the bombing of Philippine Airline Flight 434 charged in Count Nineteen. Yousef claims that, absent a universally agreed-upon definition of "terrorism" and an international consensus that terrorism is a subject matter over which universal jurisdiction may be exercised, the United States cannot rest jurisdiction over him for this "terrorist" act either on the universality principle or on any United States positive law, which, he claims, necessarily is subordinate to customary international law.
Yousef's arguments fail. First, irrespective of whether customary international law provides a basis for jurisdiction over Yousef for Counts Twelve through Nineteen, 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.
While the District Court correctly held that jurisdiction was proper over each count, and we affirm the substance of its rulings in full, we hold that the District Court erred in partially grounding its exercise of jurisdiction over Count Nineteen — the bombing of Philippine Airlines Flight 434 while en route from Manila, the Philippines, via Cebu, to Japan — on the universality principle.
We conclude, instead, that jurisdiction over Count Nineteen was proper, first, under domestic law, 18 U.S.C. § 32; second, under the aut dedere aut punire ("extradite or prosecute") jurisdiction created by the Montreal Convention, as implemented in 18 U.S.C. § 32 (destruction of aircraft) and 49 U.S.C. § 46502 (aircraft piracy); and third, under the protective principle of the customary international law of criminal jurisdiction.
1. Bases of Jurisdiction over the Counts Charged
a. Relationship between Domestic and International Law in Yousef's Prosecution
Jurisdiction over Yousef on Counts Twelve through Nineteen was based on 18 U.S.C. § 32. Yousef argues that this statute cannot give rise to jurisdiction because his prosecution thereunder conflicts with established principles of customary international law. Yousef's argument fails because, while customary international law may inform the judgment of our courts in an appropriate case, it cannot alter or constrain the making of law by the political branches of the government as ordained by the Constitution.
Principles of customary international law reflect the practices and customs of States in the international arena that are applied in a consistent fashion and that are generally recognized by what used to be called "civilized states." That is, principles of customary international law consist of the "settled rule[s] of international law" as recognized through "the general assent of civilized nations."25 The Paquete Habana, 175 U.S. 677, 694, 20 S.Ct. 290, 44 L.Ed. 320 (1900) (emphasis added); id. at 686, 20 S.Ct. 290; see generally Ian Brownlie, Principles of International Law 5-7 (5th ed. 1999) (explaining generally the principles of customary international law).
It has long been established that customary international law is part of the law of the United States to the limited extent that "where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations." The Paquete Habana, 175 U.S. at 700, 20 S.Ct. 290 (emphasis added); see also Garcia-Mir v. Meese, 788 F.2d 1446, 1453 (11th Cir.1986) (noting that "public international law is controlling only" in the absence of controlling positive law or judicial precedent).
While it is permissible for United States law to conflict with customary international law, where legislation is susceptible to multiple interpretations, the interpretation that does not conflict with "the law of nations" is preferred. Murray v. Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804).26 The Charming Betsy canon comes into play only where Congress's intent is ambiguous. Attorney General of Canada v. R.J. Reynolds Tobacco Holdings, Inc., 268 F.3d 103, 128 (2d Cir.2001) (stating that United States courts "`are not to read general words ... without regard to the limitations customarily observed by nations upon the exercise of their powers.'" (quoting United States v. Aluminum Co. of Am., 148 F.2d 416, 443 (2d Cir.1945) (emphasis added))).
If a statute makes plain Congress's intent (instead of employing ambiguous or "general" words), then Article III courts, which can overrule Congressional enactments only when such enactments conflict with the Constitution, see, e.g., Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 215, 82 S.Ct. 1328, 8 L.Ed.2d 440 (1962) (stating that, "[i]n dealing with problems of interpretation and application of federal statutes, we have no power to change deliberate choices of legislative policy that Congress has made within its constitutional powers"), must enforce the intent of Congress irrespective of whether the statute conforms to customary international law. Thus the Supreme Court stated in The Nereide, 13 U.S. (9 Cranch) 388, 3 L.Ed. 769 (1815) (Marshall, C.J.), that while courts are "bound by the law of nations which is a part of the law of the land," Congress may "manifest [its] will" to apply a different rule "by passing an act for the purpose." Id. at 423. The Court reaffirmed this principle in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963), stating that Congress may enact laws superseding "the law of nations" if "the affirmative intention of the Congress [is] clearly expressed." Id. at 21-22, 83 S.Ct. 671; see also, e.g., Comm. of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 939 (D.C.Cir.1988) (holding that "under domestic law, statutes supersede customary international law" and that statutes are not subject to challenge on the basis of a violation of customary international law); United States v. Howard-Arias, 679 F.2d 363, 371-72 (4th Cir.1982) (holding that "the United States may violate international law principles" if Congress enacts federal statutes that conflict with international law). It also is established that Congress "may legislate with respect to conduct outside the United States, in excess of the limits posed by international law." United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir.1983).
In the event that there is no "controlling executive or legislative act or judicial decision" that the court must apply, The Paquete Habana, 175 U.S. at 700, 20 S.Ct. 290, a court should identify the norms of customary international law by looking to "the general usage and practice of nations[,] or by [looking to] judicial decisions recognizing and enforcing that law ...[, or by] consulting the works of jurists writing professedly on public law," United States v. Smith, 18 U.S. (5 Wheat.) 153, 5 L.Ed. 57 (1820) (Story, J.). However, materials beyond the laws and practices of States, such as the writings of jurists,27 may serve only as "evidence" of these principles of customary international law, to which courts may look "not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is." The Paquete Habana, 175 U.S. at 700, 20 S.Ct. 290 (emphasis added); see also Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 789 (D.C.Cir.1984) (Edwards, J., concurring) (relying on The Paquete Habana for the proposition that courts should identify the "law of nations" primarily from the official acts and practices of States and, secondarily, as "evidence" of existing state practices, from the writings of scholars). We adopted the teaching of The Paquete Habana and Smith on the appropriate use of the sources of international law in Kadic v. Karadzic, 70 F.3d 232, 238-39 (2d Cir.1995) (quoting Smith, 18 U.S. at 160-61, 18 U.S. 153), and in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980), in which we emphasized that, to the extent that we rely on secondary writings by publicists as evidence of international law, we do so only for evidence of "what the law really is," id. at 881 (emphasis added) (internal quotation marks and citation omitted).
b. Treaty-Based Jurisdiction: The Hague and Montreal Conventions
Treaty law also may provide a basis for a State's action independent of the principles of customary international law. A treaty creates obligations in States parties to it that may differ from those of customary international law, and it generally is immaterial whether customary international law points in the same or in a different direction than the treaty obligation. See, e.g., The Tunis and Morocco Nationality Decrees Case, (Great Britain v. France) 1923 P.C.I.J. (ser. B) No. 4, at 24 (Feb. 7) (Permanent Court of International Justice, predecessor of the International Court of Justice ("ICJ"), recognizing that a country's treaty obligations could supersede the general norms of customary international law for the purpose of determining which questions of nationality fall within the domaine réservé of a State); see also Clive Parry, The Sources and Evidences of International Law 33 (1965) ("[I]f two or more States have unequivocally agreed to something by treaty, in relation to the matter in hand nothing other than the treaty has much relevance.").
Norms of customary international law can vitiate a treaty's effect only in the rare instance where the treaty or a provision thereof violates one of the few so-called "peremptory norms" of international law, or "jus cogens." See, e.g., United States v. Matta-Ballesteros, 71 F.3d 754, 4 n. 5 (9th Cir.1995) (stating, in dicta, that "[j]us cogens norms, which are nonderogable and peremptory, enjoy the highest status within customary international law, are binding on all nations, and can not [sic] be preempted by treaty"); Comm. of United States Citizens Living in Nicaragua, 859 F.2d at 940 (stating in dicta that "[a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law" (internal quotation marks and citations omitted)); see also Vienna Convention on the Law of Treaties, May 23, 1969, art. 53, 1155 U.N.T.S. 332, 344, S. Exec. Doc. L, 92-1 ("Vienna Convention")28 (stating that "a treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character"); Ian Brownlie, Principles of Public International Law 627 (5th ed. 1999). A treaty between two nations to engage in the slave trade, for example, would be void; a treaty to engage in the ivory trade, though repugnant to many contemporaries, would not be.
Beginning with the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 U.S.T. 1641, 860 U.N.T.S. 105, a number of international treaties have provided that where an individual who has committed an offense proscribed by the treaty is present in a State party to the treaty, the State is obliged either to prosecute the offender (even if the offense was extraterritorial) or to extradite the offender for prosecution by another State party to the convention.29 id.; see Case Concerning the Arrest Warrant of 11 Apr. 2000 (Democratic Republic of the Congo v. Belgium), 41 I.L.M. 536, 560 (2002) (separate opinion of ICJ President Guillaume ¶¶ 7-9) (listing agreements); Michael P. Scharf, Symposium: Universal Jurisdiction: Myths, Realities, and Prospects: Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Party States, 35 New Eng. L. Rev. 363, 363-66 & nn. 4-13 (2001) (listing conventions that require States parties to either extradite or prosecute offenders).
As discussed above at Section I.A.4, the Montreal Convention is one such treaty. The express purpose of the Convention is to ensure that terrorists who commit crimes on or against aircraft cannot take refuge in countries whose courts otherwise might have lacked jurisdiction over an offense against a foreign-flag aircraft that transpired either in another State or in international airspace. See Montreal Conv., art. 5, 24 U.S.T. at 565.
The Montreal Convention, unlike the customary international law principles of criminal jurisdiction (including universal jurisdiction), creates a basis for the assertion of jurisdiction that is moored in a process of formal lawmaking and that is binding only on the States that accede to it. The jurisdiction thus created is not a species of universal jurisdiction, but a jurisdictional agreement among contracting States to extradite or prosecute offenders who commit the acts proscribed by the treaty — that is, the agreements between contracting States create aut dedere aut punire ("extradite or prosecute") jurisdiction. Rosalyn Higgins, Problems and Process: International Law and How We Use It 64 (1994).
Article 1 of the Montreal Convention provides:
1. Any person commits an offence if he unlawfully and intentionally:
...
(c) places or causes to be placed on an aircraft in service, by any means whatsoever, a device or substance which is likely to destroy that aircraft, or to cause damage to it which renders it incapable of flight, or to cause damage to it which is likely to endanger its safety in flight[.]
24 U.S.T. at 565. Section 2 of that article makes it an offense for anyone to attempt to commit such an offense or to act as an accomplice to one who commits such an offense. Id. Article 7 of the Convention establishes aut dedere aut punire jurisdiction, stating in relevant part:
The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution.
Id.
2. Jurisdiction over Counts Twelve through Eighteen
Jurisdiction over Counts Twelve through Eighteen is straight-forward, and we affirm both the District Court's finding of jurisdiction and its reasoning. United States domestic law provides a complete basis for jurisdiction over the conduct charged in these counts, independent of customary international law. Nevertheless, contrary to Yousef's claims, jurisdiction is consistent with three of the five principles of customary international law criminal jurisdiction — the objective, protective, and passive personality principles, described at note 24, ante.
First, jurisdiction over Counts Twelve through Eighteen is consistent with the "passive personality principle" of customary international jurisdiction because each of these counts involved a plot to bomb United States-flag aircraft that would have been carrying United States citizens and crews and that were destined for cities in the United States. Moreover, assertion of jurisdiction is appropriate under the "objective territorial principle" because the purpose of the attack was to influence United States foreign policy and the defendants intended their actions to have an effect — in this case, a devastating effect — on and within the United States. Finally, there is no doubt that jurisdiction is proper under the "protective principle" because the planned attacks were intended to affect the United States and to alter its foreign policy.
3. Jurisdiction over Count Nineteen
a. The District Court's Holding and Yousef's Challenges on Appeal
Count Nineteen, the bombing of Philippine Airlines Flight 434, appears to present a less straight-forward jurisdictional issue because the airplane that was bombed was not a United States-flag aircraft, it was flying between two destinations outside of the United States, and there is no evidence that any United States citizens were aboard the flight or were targets of the bombing. The District Court nevertheless concluded that jurisdiction over Yousef for the offenses charged in Count Nineteen was proper, inter alia, under the principle of "universal jurisdiction." Yousef, 927 F.Supp. at 681-82.
Yousef makes a two-part argument on appeal challenging the District Court's holding with respect to the Court's jurisdiction over Count Nineteen. First, he claims that the District Court erred in holding that the universality principle provides jurisdiction over Count Nineteen. He bases this claim on the argument that, if his placing the bomb on the Philippine Airlines plane constituted terrorism, then jurisdiction under the universality principle is improper because terrorism is not universally condemned by the community of States and, therefore, is not subject to universal jurisdiction under customary international law. Yousef Br. at 143-48. Second, he argues that because customary international law does not provide for the punishment of terrorist acts under the universality principle, such failure precludes or invalidates United States laws that provide for the prosecution of such acts that occur extraterritorially. See id. at 139-141, 148 (arguing that jurisdiction over Count Nineteen cannot exist apart from a jurisdictional basis supplied by customary international law).
In light of the District Court's conclusion that Yousef's prosecution for the acts charged in Count Nineteen was proper under the universality principle, and in light of Yousef's arguments both that the universality principle does not provide jurisdiction over terrorist acts and that this failure precludes United States law from proscribing such acts, we (i) first present the District Court's holding as to its jurisdiction over this count, (ii) examine whether the District Court correctly concluded that the universality principle provides for jurisdiction over the acts charged in Count Nineteen, and (iii) examine whether the universality principle provides for jurisdiction over "terrorist" acts. We hold that the District Court erred as a matter of law in relying upon the universality principle as a basis for jurisdiction over the acts charged in Count Nineteen and further hold that customary international law currently does not provide for the prosecution of "terrorist" acts under the universality principle, in part due to the failure of States to achieve anything like consensus on the definition of terrorism. However, as discussed in full below in Discussion Section I.B.3(b), we hold that Yousef's conduct charged in Count Nineteen — regardless of whether it is termed "terrorist" — constitutes the core conduct proscribed by the Montreal Convention and its implementing legislation.30 Accordingly, Yousef's prosecution and conviction on this Count is both consistent with and required by the United States' treaty obligations and domestic laws. We therefore reject Yousef's claim that jurisdiction over Count Nineteen was lacking and affirm the substance of the District Court's ruling.
i. The District Court's Opinion
In holding that it could exercise universal jurisdiction over Yousef for Count Nineteen, the District Court stated:
The issue of exercising extraterritorial jurisdiction over a criminal prosecution based on universal jurisdiction was also discussed in United States v. Yunis, [924 F.2d 1086 (D.C.Cir.1991)] ....
The Yunis court did not decide that universal jurisdiction was insufficient as the sole basis for jurisdiction under the Antihijacking Act....
Endorsing the exercise of universal jurisdiction in the prosecution of an aircraft-related crime, the [Yunis] court stated that "aircraft hijacking may well be one of the few crimes so clearly condemned under the law of nations that states may assert universal jurisdiction to bring offenders to justice, even when the state has no territorial connection to the hijacking and its citizens are not involved." Id. [at 1092.]
The court in Yunis cited to the Restatement (Third) of the Foreign Relations Law to support exercise of universal jurisdiction in a criminal prosecution related to crimes involving aircraft. Section 404 [of the Restatement (Third)] states, "[a] state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even where none of the other bases of jurisdiction indicated in § 402 is present." Restatement (Third) § 404 (1987). Yousef, 927 F.Supp. at 681 (additional internal citations omitted) (emphasis removed).
The District Court then added:
The disregard for human life which would accompany the placing of a bomb aboard an airplane with the intent for that bomb to explode while the airplane is in flight and fully occupied with people, or otherwise sabotaging that plane, is at least as heinous a crime of international concern as hijacking a plane. Id. at 682.
The District Court thus held, relying on Yunis, the Restatement (Third), and its own analogy between "the placing of a bomb aboard an airplane" and other "heinous" crimes that support universal jurisdiction, that the United States on this ground alone could exercise universal jurisdiction to prosecute "aircraft-related crime." Id. at 681-82. Like the court in Yunis, the District Court relied on the Restatement (Third) for the proposition that a "state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern," including "piracy, slave trade, attacks on or hijacking of aircraft,... [and] perhaps certain acts of terrorism." Yousef, 927 F.Supp. at 681 (quoting Restatement (Third) § 404) (alteration omitted; emphasis added). Drawing an analogy between aircraft hijacking and Yousef's act of placing a bomb aboard an aircraft, the District Court concluded that the acts charged in Count Nineteen are considered "by the United States and the international community to be `Offenses against the Law of Nations'" that support the exercise of universal jurisdiction over Yousef. Id. (internal citation omitted in original).
In relying primarily on the Restatement (Third) (and its incorporation into Yunis) and in expanding the scope of universal jurisdiction to new offenses by judicial analogy to its traditional subjects, the District Court erred, first, in its use of the sources of authority from which a court may discern the content of customary international law and, second, in its conclusion that universal jurisdiction may be expanded by judicial analogy to the crimes that currently are subject to jurisdiction under the universality principle. We address these points in turn.
ii. The Use of Authority in Determining Customary International Law
The District Court anchored its finding of universal jurisdiction over Yousef in the relevant provisions of the Restatement (Third). It erred in doing so because such treatises are not primary sources of international law. While a discussion of the sources of authority from which a court may discover the content of customary international law may seem rarefied, we address this subject here at some length because the incorrect use of such sources can easily lead to an incorrect conclusion about the content of customary international law. In the instant case, misplaced reliance on a treatise as a primary source of the customary international law of universal jurisdiction led to the erroneous conclusion that such jurisdiction existed over the acts charged in Count Nineteen.
The Restatement (Third), a kind of treatise or commentary, is not a primary source of authority upon which, standing alone, courts may rely for propositions of customary international law. Such works at most provide evidence of the practice of States, and then only insofar as they rest on factual and accurate descriptions of the past practices of states, not on projections of future trends or the advocacy of the "better rule." See note 31, post. Moreover, while a treatise never may serve as a primary source of law, reliance on this section of the Restatement (Third) in particular is error because it advocates the expansion of universal jurisdiction beyond the scope presently recognized by the community of States, as reflected in customary international law primary sources.31 The District Court's reliance on Yunis for the proposition that it could exercise universal jurisdiction over Yousef similarly was misplaced because the holding in Yunis was grounded in the text of the Restatement (Third).
* * *
The "sources" of international law is a subject of much continuing scholarship. The Statute of the International Court of Justice sets forth in its Article 38 the sources of authority that the ICJ relies upon to determine international law. Article 38 provides in relevant part:
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;