The opinion of the court was delivered by: COTE
DENISE COTE, District Judge:
In this motion to dismiss Counts Three, Four, Five, and Six of the Superseding Indictment, defendants Chen De Yian and Wang Kun Lue
challenge the constitutionality of 18 U.S.C.A. § 1203 (West Supp. 1995) (hereinafter the "Hostage Taking Act" or "Act") and 18 U.S.C.A. § 924(c) (West Supp. 1995). The Court assumes familiarity with the facts underlying all of the Counts at issue in this motion, which were recited in the Court's June 19, 1995 Opinion. See United States v. Yian, 1995 U.S. Dist. LEXIS 8560, 1995 WL 368445 (S.D.N.Y. June 19, 1995). For the reasons set forth below, the motion to dismiss is denied.
In the wake of the Supreme Court's April 26, 1995 decision in United States v. Lopez, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995), defendant Chen challenged the constitutionality of Section 1203 and Section 924(c), claiming that Congress lacked power to enact both statutes under the Commerce Clause,
and, additionally, that Section 1203's alienage classification violates the Equal Protection component of the Fifth Amendment's Due Process Clause.
See Bolling v. Sharpe, 347 U.S. 497, 98 L. Ed. 884, 74 S. Ct. 693 (1954). On June 16, 1995 the Court requested further briefing on three additional issues: First, whether Congress had power under the Necessary and Proper Clause
to implement the International Convention Against the Taking of Hostages, T.I.A.S. No. 11081 ("Convention") by enacting Section 1203. Second, whether Congress had power to enact Section 1203 under the Offenses Clause.
Third, whether Congress' power to "establish an uniform Rule of Naturalization," U.S. Const. art. I, § 8, cl. 4, rendered Section 1203's alienage classification constitutional. Because Congress had the power to implement the Convention pursuant to the Necessary and Proper Clause, the Court does not decide whether other bases of legislative power exist to uphold the Hostage Taking Act.
The Hostage Taking Act was part of a three bill package enacted by Congress in 1984 aimed at combatting the rise of terrorism.
The Act implemented the Convention, which the United States and forty-five other countries signed on December 21, 1979, and by this legislation, Congress gave the United States' international obligations under the Convention the force of domestic law.
The Hostage Taking Act provides in relevant part:
(a) Except as provided in subsection (b) of this section, whoever, whether inside or outside the United States, seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third person or a governmental organization to do or abstain from doing any act as an explicit or implicit condition for the release of the person detained, or attempts to do so, shall be punished by imprisonment . . . .
(b)(1) It is not an offense under this section if the conduct required for the offense occurred outside the United States unless --
(A) the offender or the person seized or detained is a national of the United States,
(B) the offender is found in the United States; or
(2) It is not an offense under this section if the conduct required for the offense occurred inside the United States, each alleged offender and each person seized or detained are nationals of the United States, and each alleged offender is found in the United States, unless the governmental organization sought to be compelled is the Government of the United States.
18 U.S.C.A. § 1203 (West Supp. 1995). The provisions of Section 1203 track the Convention's definition of the offense of hostage taking, including the exclusion of domestic hostage taking when the hostage and the offender are both nationals of the country in which the offense occurs.
Defendants argue that the Hostage Taking Act is not essential to the implementation of the Convention: in other words, that Congress' exercise of its powers under the Necessary and Proper Clause is invalid. Alternatively, and presumably based on the Tenth Amendment,
defendants argue that the Act has "opened a gaping hole in the carefully-designed balance of delegated powers that constitutes the federal system." Finally, defendants argue that the Hostage Taking Act violates the Equal Protection guarantee of the Fifth Amendment's Due Process Clause, U.S. Const. amend. V; see Bolling v. Sharpe, 347 U.S. 497, 98 L. Ed. 884, 74 S. Ct. 693 (1954). The Court is not persuaded by any of these challenges to the Act's constitutionality.
Necessary and Proper Clause
That Congress has authority to implement treaties, such as the Convention, pursuant to its power under the Necessary and Proper Clause of the Constitution is undisputed. If the treaty itself does not create legally enforceable, domestic obligations (i.e., if it is not "self-executing"), then Congress has the power to pass such legislation as is necessary and proper to implement the treaty. See Whitney v. Robertson, 124 U.S. 190, 194, 31 L. Ed. 386, 8 S. Ct. 456 (1888); Missouri v. Holland, 252 U.S. 416, 432, 64 L. Ed. 641, 40 S. Ct. 382 (1920) (Holmes, J.) ("If the treaty is valid there can be no dispute about the validity of the statute under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government."). It is also well established that neither treaties nor laws passed pursuant to them are "free from the restraints of the Constitution," Reid v. Covert, 354 U.S. 1, 16, 1 L. Ed. 2d 1148, 77 S. Ct. 1222 (1957), such as the Bill of Rights.
The first issue then is whether Congress had power under the Necessary and Proper Clause to pass the Hostage Taking Act. Defendants argue that, because the Convention was narrowly targeted at terrorism, the Convention did not require passage of the broadly worded Hostage Taking Act. There are several problems with this argument. First, the appropriate judicial standard for reviewing the Act is not strict scrutiny, but, rather, rational basis review. Consequently, so long as the Act bears some reasonable relationship to a grant of power to the national government, and it is not otherwise prohibited by the Constitution, the Court must find the law to be "necessary and proper." See McCulloch v. Maryland, 17 U.S. 316, 421, 4 L. Ed. 579 (1819) ("Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.").
Nor does the legislative history of the Hostage Taking Act indicate that the Act was intended to apply only to incidents of hostage taking associated with international or political terrorism.
The original versions of the bills in both the House of Representatives and the Senate did not have the equivalent of Section 1203(b)(2) and, therefore, contemplated federal jurisdiction over purely "internal" or "domestic" instances of hostage taking.
And in response to questions by Senator Leahy, the Department of Justice further explained that such instances of "internal" hostage taking should not be limited to solely "terrorist" situations, because
it would be necessary to define terrorism. The definition would most likely include some language such as "violent crime committed for political or ideological purposes." This would raise serious First Amendment questions . . . . By not including any element of "terrorism" in the offense, ...