United States v. Usama Bin Laden case brief, 92 F. Supp. 2d 189 (S.D.N.Y. 2000)

United States v. Usama Bin Laden, 92 F. Supp. 2d 189 (S.D.N.Y. 2000)

-       Defendants are charged with a variety of crimes stemming from the August 1998 bombings of the US Embassies in Nairobi, Kenya
-       This case is in the book under universal jurisdiction, but she says it is a better example of the protective principle
-       Rules to remember from this case:

• Although Congress has the power to regulate conduct performed outside the US, courts are to presume that statutes written by Congress apply only to acts performed within US territory unless Congress manifests an intent to reach act performed outside US territory
• In determining whether a statute is meant to be applied extraterritorially, courts should look to the text, structure, and legislative history of the statute
• There is a limited exception to this standard approach for “criminal statutes, which are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially is committed by its own citizens, officers, or agents.”  United States v. Bowman, 260 US 94, 98 (1922).  (This principle, called the Bowman rule, is most directly related to the protective principle of jurisdiction.)
• Nexus argument: the Davis court announced that “in 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.”  905 F.2d 245, 248-249 (9th Cir. 1990)
  • This court concludes that “where an attempted transaction is aimed at causing criminal acts within the United States, there is a sufficient basis for the United States to exercise jurisdiction….”
  • The court also concludes that if the extraterritorial application of a statute is justified by the protective principle, such application accords with due process
• The court notes that
  • The passive personality principle is increasingly accepted as applied to terrorists and other organized attacks on a state’s nationals by reason of their nationality, or to assassination of a state’s diplomatic representatives or other officials….” (citing Restatement § 402, cmt. g.)
  • “universal jurisdiction is increasingly accepted for certain acts of terrorism….” (citing Restatement § 404, cmt. a.)
• both universal jurisdiction and the protective principle are bases for jurisdiction by the United States over the death of foreign citizens
• the case goes through a reasonableness analysis to determine whether it would be unreasonable for the US to apply a specific law to the deaths of ordinary foreign nationals on foreign soil (see p. 707 for details), and finds that such application is reasonable