Due Process, Choice of Law, and the Prosecution of Foreign Nationals for Providing Material Support to Terrorist Organizations in Conflicts Abroad
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Brian M. Kelly, Due Process, Choice of Law, and the Prosecution of Foreign Nationals for Providing Material Support to Terrorist Organizations in Conflicts Abroad (Harvard Law School Addison Brown Student Writing Prize, May 2015).Abstract
In November 2012, a grand jury in the Eastern District of New York indicted Ali Yasin Ahmed, Mahdi Hashi, and Mohamed Yusuf under 18 U.S.C. § 2339B for knowingly and intentionally conspiring to provide material support and resources, including services, currency, weapons, and personnel, to al-Shabaab, a designated foreign terrorist organization. Although there is nothing exceptional about the United States prosecuting individuals for providing material support for terrorism, United States v. Ahmed represents a marked shift from prior 18 U.S.C. § 2339B prosecutions because neither the defendants nor their conduct has any apparent nexus to the United States. None of the three Somali-born defendants is an American citizen; Ahmed and Yusuf are Swedish nationals and Hashi was a British citizen until the United Kingdom stripped him of his citizenship in 2010. The three were reportedly captured by Djiboutian authorities while traveling from Somalia to Yemen and then interrogated by U.S. officials in Djibouti. There is no indication that any of the men ever stepped foot in the United States before they were transferred to FBI custody and flown to New York and arrested. The defendants, who maintain that they are freedom fighters waging a war on foreign soil against a foreign government, have pled not guilty and claim that they have not committed any acts of terrorism against the United States. As one of the defendants’ lawyers told reporters, “He feels he never intended any harm to the United States or United States citizens . . . He looked up to the United States.”The plight of the defendants in United States v. Ahmed raises a new and important question: does the extraterritorial application of 18 U.S.C. § 2339B in such a case—one in which foreign nationals on foreign soil allegedly supported a foreign terrorist organization in its war against a foreign government—violate due process? The Supreme Court has never considered the issue of whether the protections of the Fifth Amendment’s Due Process Clause extend to foreign nationals in extraterritorial prosecutions, although a handful of legal scholars have debated the question. As a result, there is considerable confusion in the circuits today over how due process applies in these cases. To date, all seven circuits that have addressed this question have assumed that alien defendants in extraterritorial prosecutions do have due process rights and have held—in recognition of the Supreme Court’s state choice of law standard in Allstate Ins. Co. v. Hague—that the extraterritorial application of U.S. criminal law to foreign nationals must not be “arbitrary or fundamentally unfair.”
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