United States District Court, S.D. New York
May 22, 2014
UNITED STATES OF AMERICA,
ANAS AL LIBY, Defendant
For Defendant Anas al Liby: Sean S. Buckley, Stephen J. Ritchin, Adam J. Fee, Nicholas Lewin, Assistant United States Attorneys, Preet Bharara, UNITED STATES ATTORNEY, Bernard V. Kleinman, LAW OFFICE OF BERNARD V. KLEINMAN, PLLC.
Lewis A. Kaplan, United States District Judge.
Anas al Liby, an alleged member of al Qaeda, is charged with, among other things, conspiring with Usama Bin Laden and others to kill Americans abroad by, among other means, bombing the United States embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, bombings in which 224 people reportedly were killed and many more injured. A fugitive for many years, al Liby recently was apprehended in Libya and produced in this Court for prosecution on the indictment. Al Liby now moves to dismiss the indictment for lack of jurisdiction on the grounds that his apprehension and treatment prior to being presented to this Court violated (1) the Ker-Frisbie doctrine, (2) the Posse Comitatus Act, and (3) international treaties.
The basis of the motion is a declaration from al Liby's attorney alleging the following facts " upon information and belief."  There is no claim that counsel has personal knowledge of any of the matters discussed.
On or about October 5, 2013, Delta Force operatives of the U.S. Army " forcibly removed" al Liby from his vehicle outside his home in Tripoli, Libya " with the use of extreme physical and brutal force."  " After using tazer-like [ sic ] weapons," the operatives blindfolded al Liby, prevented him from hearing, and " bound, gagged and trussed [him] up."  Al Liby purportedly was " forcibly removed" to a site in or around Tripoli and then transported to the U.S.S. San Antonio, a naval vessel. His attorney alleges also that al Liby was " subjected to daily interrogation" by CIA and other U.S. intelligence agents until October 12, 2013. During that time, al Liby was not permitted to communicate with his family, friends, associates, or representatives from the Libyan government. The interrogation purportedly was performed " in an unrelenting, hostile, and extraordinary manner" -- in his attorney's words, " inhumane treatment."  His attorney claims also that al Liby was not informed of " the right to have counsel," " his rights under the United Nations Charter," or " his rights under the Hague Convention." 
The government does not here respond to defense counsel's assertions as to the
circumstances of al Liby's seizure and treatment before he was presented to this Court. It argues instead that al Liby has not presented competent evidence to raise an issue of fact to be resolved by this Court and, even assuming had he done so, dismissal of the indictment would not be an appropriate remedy for the government's alleged actions.
I. The Motion Is Not Based on Competent Evidence
A party must present competent evidence to establish the facts upon which a motion such as this rests. Absent such evidence, the motion should be denied without a hearing. Here, defense counsel's declaration was " made upon information and belief" from " the record in his office, the pleadings and notices filed to date, and . . . conversations and meetings with his client."  It thus is not competent evidence of any of the matters asserted. Indeed, al Liby himself has not submitted an affidavit or declaration describing his apprehension in Libya or his treatment prior to arriving in this Court. No factual issue therefore has been raised and the motion shall be denied on that ground alone. Nonetheless, even if one accepted all of defense counsel's allegations and assertions as true for the purposes of the motion, dismissal of the indictment would not be warranted.
II. The Motion Would Fail as a Matter of Law Even Assuming the Factual Allegations Rested on Competent Evidence
The Supreme Court flatly has held that a forcible abduction of a defendant does not strip a court of jurisdiction to try that defendant.
Ker involved a defendant who had been abducted forcibly in Peru and brought to Illinois where he was tried and convicted of larceny. The Supreme Court reasoned that " for mere irregularities in the manner in which [a defendant] may be brought into custody of the law, we do not think he is entitled to say that he should not be tried at all for the crime with which he is
charged in a regular indictment." 
More than half a century later, the Supreme Court in Frisbie reaffirmed " that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a 'forcible abduction.'"  This doctrine, known as the Ker-Frisbie rule, " rest[s] on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards." 
While al Liby concedes that a criminal defendant, as a general rule, properly may be tried regardless of the method used to bring him to this Court, he nonetheless contends that he is entitled to relief based on United States v. Toscanino. He is mistaken.
The defendant in Toscanino appealed his narcotics conviction, arguing that he had been seized in Uruguay and tortured for weeks by American agents. He asserted that, among other things, he was denied sleep and nourishment, forced to walk up and down a hallway for seven or eight hours at a time, kicked and beaten, jolted with electricity through electrodes attached to his body, and flushed with alcohol into his eyes and nose. The Second Circuit, speculating that the Ker-Frisbie rule had been " ero[ded]" and " weakened" by subsequent Supreme Court cases, held that due process " requir[ed] a court to divest itself of jurisdiction over the person of a defendant where it has been acquired as the result of the government's deliberate, unnecessary, and unreasonable invasion of the accused's constitutional rights."  It reversed the conviction and remanded the case for an evidentiary hearing to enable the defendant to prove that the conduct was sufficiently outrageous as to have violated due process.
It is reasonably clear that Toscanino no longer is good law. To the extent, if any, that it survives, its holding is restricted to the outrageousness of its facts. The Supreme Court repeatedly has reaffirmed the Ker-Frisbie rule since Toscanino.
Several other circuits have determined that, in light of those Supreme Court decisions, Toscanino cannot survive.
Further, the Second Circuit itself clarified, less than a year after Toscanino, that " in recognizing that Ker and Frisbie no longer provided a carte blanche to government agents bringing defendants from abroad to the United States by the use of torture, brutality and similar outrageous conduct, we did not intend to suggest that any irregularity in the circumstances of a defendant's arrival in the jurisdiction would vitiate the proceedings of the criminal court."  As this Court explained, the Second Circuit in Brown v. Doe  heavily relied on the Ker-Frisbie rule to hold that repeated brutal beatings by police following the defendant's arrest did not deny him of substantive due process. The Circuit emphasized that the court " cannot . . . relieve a criminal of punishment for the crime or crimes committed as compensation for wrongs done by representatives of the institutions of society." 
In urging that the Second Circuit has not repudiated the so-called Toscanino exception, al Liby cites the recent summary order in United States v. Umeh. But Umeh would not support al Liby here, even if a summary order had precedential effect, which it does not. Convicted of conspiracy to distribute cocaine, the defendant in Umeh appealed on the ground, inter alia, that jurisdiction was lacking because his arrest in Liberia and brutal torture by American agents resembled that in Toscanino. He alleged that " he was physically restrained and beaten and that every time he tried to speak, he was punched, kicked, and hit with a rubber truncheon," that he was kicked " in the jaw, causing him to lose his teeth," required to sit " in a chair with three legs . . . trying to maintain his balance," and " pulled from the back" with a " nylon rope around [his] neck . . . until he could not breathe." 
The Second Circuit recognized that the Toscanino " decision . . . assumed the 'erosion' of the Ker-Frisbie doctrine, . . . a premise which has been undermined by subsequent decisions of the Supreme Court."  The Circuit nonetheless reasoned that it " need not here decide what vitality, if any, Toscanino retains, because our precedent makes plain that it does not foreclose prosecution in factual circumstances similar to those alleged." 
This Court agrees and concludes that Toscanino, to whatever extent it survives, does not support al Liby here. Al Liby's counsel has not alleged torture or brutality, nor has he asserted other outrageous conduct of the sort asserted in Toscanino. Al Liby's apprehension rests squarely within the well-established Ker-Frisbie rule. The motion to dismiss the indictment based on the asserted " inhumane treatment" would be denied without a hearing even if there were competent evidence to support al Liby's factual assertions.
B. Posse Comitatus Act
Al Liby contends next that the alleged use of military personnel during his apprehension violated the Posse Comitatus Act (the " Act" ). The Act provides, in pertinent part:
" Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both." 
The phrase " posse comitatus" literally translates as " power of the county" and " refer[s] to all those over the age of 15 upon whom a sheriff could call for assistance in preventing any type of civil disorder."  Accordingly, the Act was intended to limit the use of military forces to enforce domestic law immediately after the Civil War.
Al Liby contends that his apprehension in Libya -- through " the extreme use of the Army's Delta Force to effect the Defendant's arrest, and then the subsequent Navy's participation in the Defendant's unlawful detention"  -- violated the Act. He therefore seeks to exclude any evidence obtained at his apprehension and to dismiss the indictment for lack of jurisdiction. This Court need not decide whether al Liby's apprehension violated the Act because the relief sought is inappropriate.
First, there is no authority to support dismissing an indictment for a violation of the Act. Nothing on the face of the statute or in the legislative history supports such relief, and al Liby has not cited a single instance in which an indictment was dismissed based on a violation of the Act. As the Ninth Circuit explained in United States v. Cotten, " [t]he novel argument . . . that the use of military personnel and a posse comitatus. . . require[s] either dismissal of charges or a finding of lack of jurisdiction . . . . exceeds that required by the conduct."  The Court therefore cannot conclude that it lacks jurisdiction over al Liby so as to require dismissal of the indictment.
Second, even where a violation of the Act is found or suspected, courts consistently have held that creation or application of an exclusionary rule is not appropriate. Al Liby claims that, as a general matter, exclusion of evidence is warranted in cases of " 'severe official misconduct born[e] of malice, caprice or brazen lawlessness.'"  But al Liby has not alleged facts of that nature -- nor has he specified the nature of the evidence he seeks to exclude -- and the statement on which he relies is taken from a case in which the Posse Comitatus Act was not even at issue. Indeed, " every federal court to have considered the issue has held that suppression is not an appropriate remedy for a violation of the Act."  The relief sought by al Liby under the Act simply is unavailable.
C. United Nations Charter and the Hague Convention
Al Liby asserts finally that his apprehension violated international treaties, specifically the United Nations Charter and the Hague Convention, warranting dismissal of the indictment. The argument, however, fails as a matter of law for several reasons.
First, the treaty provisions on which al Liby relies are not self-executing. " [W]hile they constitute international law commitments [they] do not by themselves function as binding federal law."  Treaties are not judicially enforceable " unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be 'self-executing' and is ratified on these terms." 
The United Nations Charter has been ratified by the United States, but nothing
suggests that it was intended to be enforceable in federal courts. The Second Circuit has itself recognized that the United Nations Charter is not self-executing. Moreover, the provisions on which al Liby relies in Article 2 of the Charter -- including the " sovereign equality" of states and that " [m]embers shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state" -- are only general principles. None of those principles al Liby references can reasonably have been intended to be enforceable in U.S. courts.
The Hague Convention similarly is not self-executing. It attempts to impose standards of conduct for belligerent nations, but the Convention itself indicates that it was not intended to create judicially enforceable rights. Article 1 specifies that " [t]he Contracting Powers shall issue instructions to their armed land forces which shall be in conformity with the Regulations . . . ."  As the Fourth Circuit has explained: " This language must be taken as further evidence that the Hague Convention is not self-executing, and that, instead, the signatories contemplated that individual nations would take subsequent executory actions to discharge the obligations of the treaty."  This Court agrees and concludes that the Hague Convention is not enforceable on its own in U.S. courts.
Second, as al Liby concedes, treaties " are not enforceable as a private right of any individual."  More than a century ago, the Supreme Court recognized:
" A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured parties choose to seek redress. . . . It is obvious that with all this the judicial courts have nothing to do and can give no redress." 
Al Liby asserts nonetheless that a private party may seek relief where a signatory to the treaty files a protest and that Libya has done so here. That proposition applies, however, only " where a treaty provides certain benefits for nationals of a particular state."  Al Liby has not identified any provision of the United Nations
Charter or the Hague Convention that created judicially enforceable private rights.
Third, even assuming that the international treaties were self-executing and created judicially enforceable private rights, dismissal of the indictment would not be appropriate. The treaties do not provide for such relief, and the Court will " infer neither an entitlement to suppression nor an entitlement to dismissal absent express, or undeniably implied, provision for such remedies in a treaty's text."  As the Supreme Court recognized in Sanchez-Llamas v. Oregon, " where a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal courts to impose one."  Thus, the international treaties cannot protect al Liby from prosecution for his alleged crimes.
For the foregoing reasons, al Liby's motion to dismiss the indictment for lack of jurisdiction [DI 1484] is denied in all respects.