United States District Court, S.D. New York
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 ...