Extraterritorial Jurisdiction—Wesam Delaema

An Iraqi-born Dutch resident has been indicted in US District Court in Washington, D.C., for conspiring to bomb US convoys in Fallujah.^[1] This is the first time criminal charges have been used against an individual for their alleged role in the Iraqi insurgency,^[2] and his case will certainly challenge the notions of United States jurisdiction.

Wesam Delaema, who is also known as Wesam Al Delaema or Wesam Khalaf Chayed Delaema, has been indicted on six counts:

1. conspiracy to kill US citizens abroad;
2. conspiracy to use a weapon of mass destruction;
3. conspiracy to maliciously damage or destroy US government property by means of an explosive;
4. possession of a destructive device during a crime of violence;
5. conspiracy to possess a destructive device during a crime of violence; and
6. teaching or demonstrating the making or use of an explosive with the intent to further a crime of violence.^[3]

Mr. Delaema was arrested in the Netherlands on May 2, 2005, and the US is now expected to formally request his extradition.^[4] The indictment alleges that Mr. Delaema traveled from the Netherlands to Iraq in October 2003, joining a group calling themselves the “Mujahideen from Fallujah.”^[5]

Count 1
Conspiracy to commit murder is covered by 18 U.S.C. § 1117, which states that if two or more persons conspire to violate certain homicide statutes of the United States (18 U.S.C. §§ 1111, 1114, 1116, or 1119) each person will be punished by imprisonment for any term of years or for life. There is an “overt act” requirement under this statute.^[6] It isn’t clear precisely which statute is being used, though section 1116 is not at issue as that applies to the killing of foreign officials.

The first possible statute is 18 U.S.C. § 1111, which states that murder is the unlawful killing of a human being with malice aforethought.^[7] Any murder committed by a willful, deliberate, malicious, and premeditated killing will be treated as a first degree murder; all other murders will be treated as second degree murders.^[8] The punishment for a murder “within the special maritime and territorial jurisdiction of the United States” is death or imprisonment for life for a first degree murder, or imprisonment for any term of years or life in the case of a second degree murder. ^[9] This jurisdictional requirement is tricky, and we will address it shortly.

The next homicide statute at issue is 18 U.S.C. § 1114, which states that any person who kills or attempts to kill “any officer or employee of the United States or of any agency…(including any member of the uniformed services)” while that person is engaged in official duties, will be punished for murder^[10] or attempted murder.^[11] There is no jurisdictional statement in this statute.

The final statute that is potentially at issue in this case is 18 U.S.C. § 1119, which states that any person “being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States” but is within the jurisdiction of another country, will be punished for murder or attempted murder.^[12] The obvious problem with using this statute is that Mr. Delaema is not a national of the United States, and thus he is not covered by its provisions.

Count 2
One should not get too excited about the use of the term “weapon of mass destruction” in the indictment. The statute at issue in this part of the indictment is assuredly 18 U.S.C. § 2332a, which states that a person who conspires to use a weapon of mass destruction against a national of the United States while that national is outside the United States^[13] will be imprisoned for any term of years of for life; if death results, the conspirator can be put to death. ^[14] However, in this section “weapon of mass destruction” means any destructive device as defined by 18 U.S.C. § 921.^[15] Section 921 defines “destructive device” as a bomb, explosive, grenade, rocket, missile, mine, or similar device.^[16] It can even refer to rifles with a barrel bore that is larger than one-half inch in diameter (except for shotguns).^[17] Again, there is no jurisdictional statement in this section, and, furthermore, there is no “overt act” requirement.

Count 3
Conspiring to use such an explosive device against US property is covered by section 2332a(a)(3), which makes it illegal for a person to conspire to use a weapon of mass destruction against “any property that is owned, leased, or used by the United States or by any department or agency of the United States” regardless of where that property is located. Doing so results in the same punishment as using an explosive device against a US national.^[18]

Count 4
This charge is covered by the Byzantine firearms statutes, notably 18 U.S.C. § 924(c)(1)(B)(ii), which states that if a person commits a crime of violence while possessing a destructive device, he will be punished with imprisonment for no less than 30 years. However, the crime of violence, which is defined as a felony that has the use of force as an element,^[19] must be one for which a person may be prosecuted in a court of the United States.^[20]

Count 5
The conspiracy charge for possessing a destructive device during a crime of violence could be covered by 18 U.S.C. § 371, which we have discussed here.

Count 6
Teaching or demonstrating how to make or use an explosive device is covered by 18 U.S.C. § 231. It states that any person who teaches or demonstrates to any other person “the use, application, or making of any … explosive or incendiary device … knowing … that the same will be unlawfully employed for use in … a civil disorder which may … obstruct, delay or adversely affect commerce,”^[21] will be punished by a fine, imprisonment for not more than five years or both.^[22]

Jurisdictional Issues
As we have noted, the prosecution of Mr. Delaema presents very interesting jurisdictional issues. Channing Philips, a spokesman for federal prosecutors, announced that the United States has jurisdiction over crimes committed in “the extraterritorial jurisdiction of the United States.”^[23] But it isn’t quite as clear cut as that.

The homicide statutes, except for 18 U.S.C. § 1114, state that the act must be committed in the “special maritime and territorial jurisdiction of the United States.” This is a term of art, and the definition of this term is found in 18 U.S.C. § 7. Section 7 states that this jurisdiction covers the high seas, US vessels, land reserved for the US and for erection of military installations, islands with guano deposits, US aircraft, US spacecraft, places outside the jurisdiction of any nation, foreign vessels that are moving to and from the US, or crimes committed on US diplomatic installations or diplomatic residences. Iraq, unless it was a place outside the jurisdiction of any nation in 2003, is not covered by this definition.

Thus, only section 1114 seems to apply for the conspiracy to kill US nationals, but for it to apply, the government would have to prove that Congress intended the statute to have extraterritorial effect; there is a presumption that Congress did not intend to violate principles of international law.^[24] Extraterritorial jurisdiction usually violates international law. However, there are several principles of international law under which exercising extraterritorial jurisdiction may be appropriate.^[25] Among these are the Objective Territorial Principle, the Protective Principle, the Nationality Principle, and the very controversial Universality Principle. To learn more about these principles, please visit our discussion of extraterritorial jurisdiction here.

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[1] U.S. Indicts Dutchman in Iraqi Insurgency, Washington Times, Sept. 13, 2005, available here [hereinafter, WT].
[2] Id.
[3] Department of Justice, Press Release: Dutch Citizen Indicted in Terrorism Conspiracy Against Americans in Iraq, Sept. 9, 2005, available here.
[4] Id.
[5] Id.
[6] For more on “overt act” requirements, please see our discussion here.
[7] 18 U.S.C. § 1111(a).
[8] Id.
[9] Id. § 1111(b).
[10] Id. § 1114(1).
[11] Id. § 1114(3).
[12] Id. § 1119(b).
[13] Id. § 2332a(a)(1).
[14] Id. § 2232a(a).
[15] Id. § 2332a(c)(2).
[16] Id. § 921(a)(4)(A).
[17] Id. § 921(a)(4)(B).
[18] Id. § 2332a(a).
[19] Id. § 924(c)(3)(A).
[20] Id. § 924(c)(1)(A).
[21] Id. § 231(a)(1).
[22] Id. § 231(a).
[23] WT, supra note 1.
[24] See United States v. Clark, 315 F. Supp. 2d 1127, 1131 (W.D. Wash. 2004); United States v. Vasquez-Velasco, 15 F.3d 833, 839 (9th Cir. 1994).
[25] Clark at 1127.