Full opinion text
MEMORANDUM OPINION ELLIS, District Judge. John Phillip Walker Lindh (“Lindh”) is an American citizen who, according to the ten-count Indictment filed against him in February 2002, joined certain foreign terrorist organizations in Afghanistan and served these organizations there in combat against Northern Alliance and American forces until his capture in November 2001. In seven threshold motions, Lindh sought dismissal of certain counts of the Indictment on a variety of grounds, including lawful combatant immunity and selective prosecution. Lindh also sought dismissal, or alternatively, transfer of venue, arguing that he could not receive a fair trial in this district owing to pre-trial publicity. All motions were denied following extensive briefing and oral argument. See United States v. Lindh, Criminal No. 02-37-A (E.D.Va. June 17, 2002) (Order). Recorded here are the reasons underlying those rulings. I. The Indictment’s allegations may be succinctly summarized. In mid-2001, Lindh attended a military training camp in Pakistan run by Harakat ul-Mujahideen (“HUM”), a terrorist group dedicated to an extremist view of Islam. After receiving several weeks of training, Lindh informed HUM officials that “he wished to fight with the Taliban in Afghanistan.” Indictment, p. 6, ¶ 5. Thus, in May or June 2001, he traveled from Pakistan into Afghanistan “for the purpose of taking up arms with the Taliban,” eventually arriving at a Taliban recruiting center in Kabul, Afghanistan — the Dar ul-Anan Headquarters of the Mujahideen. Indictment, p. 7, ¶ 6. On his arrival, Lindh presented a letter of introduction from HUM and advised Taliban personnel “that he was an American and that he wanted to go to the front lines to fight.” Indictment, p. 7, ¶ 7. While at the Dar ul-Anan Headquarters, Lindh agreed to receive additional and extensive military training at an al Qaeda training camp. He made this decision “knowing that America and its citizens were the enemies of Bin Laden and al-Qaeda and that a principal purpose of al-Qaeda was to fight and kill Americans.” Indictment, p. 7, ¶ 8. In late May or June 2001, Lindh traveled to a bin Laden guest house in Kandahar, Afghanistan, where he stayed for several days, and then traveled to the al Farooq training camp, “an al Qaeda facility located several hours west of Kandahar.” Indictment, p. 7 ¶ 10. He reported to the camp with approximately twenty other trainees, mostly Saudis, and remained there throughout June and July. During this period, he participated fully in the camp’s training activities, despite being told early in his stay that “Bin Laden had sent forth some fifty people to carry out twenty suicide terrorist operations against the United States and Israel.” Indictment, p. 7, ¶ 11. As part of his al Qaeda training, Lindh participated in “terrorist training courses in, among other things, weapons, orienteering, navigation, explosives and battlefield combat.” Indictment, pp. 7-8, ¶ 12. This training included the use of “shoulder weapons, pistols and rocket-propelled grenades, and the construction of Molotov cocktails.” Indictment, p. 8. ¶ 12. During his stay at al Farooq, Lindh met personally with bin Laden, “who thanked him and other trainees for taking part in jihad.” Indictment, p. 8, ¶ 13. He also met with a senior al Qaeda official. Abu Mohammad Al-Masri, who inquired whether Lindh was interested in traveling outside Afghanistan to conduct operations against the United States and Israel. Lindh declined Al-Masri’s offer in favor of going to the front lines to fight. It is specifically alleged that Lindh swore allegiance to jihad in June or July 2001. When Lindh completed his training at al Farooq in July or August 2001, he traveled to Kabul, Afghanistan, where he was issued an AKM rifle “with a barrel suitable for long range shooting.” Indictment, p. 8, ¶ 16. Armed with this rifle, Lindh, together with approximately 150 non-Afghani fighters, traveled from Kabul to the front line at Takhar, located in Northeastern Afghanistan, where the entire unit was placed under the command of an Iraqi named Abdul Hady. Lindh’s group was eventually divided into smaller groups that fought in shifts against Northern Alliance troops in the Takhar trenches, rotating every one to two weeks. During this period, Lindh “carried various weapons with him, including the AKM rifle, an RPK rifle he was issued after the AKM rifle malfunctioned, and at least two grenades.” Indictment, p. 8, ¶ 19. He remained with his fighting group following the September 11, 2001 terrorist attacks, “despite having been told that Bin Laden had ordered the [September 11] attacks, that additional terrorist attacks were planned, and that additional al Qaeda personnel were being sent from the front lines to protect Bin Laden and defend against an anticipated military response from the United States.” Indictment. p. 9, ¶ 20. Indeed, it is specifically alleged that Lindh remained with his fighting group from October to December 2001, “after learning that United States military forces and United States nationals had become directly engaged in support of the Northern Alliance in its military conflict with Taliban and al Qaeda forces.” Indictment, p. 9, ¶ 21. In November 2001, Lindh and his fighting group retreated from Takhar to the area of Kunduz, Afghanistan, where they ultimately surrendered to Northern Alliance troops. On November 24, 2001, he and the other captured Taliban fighters were transported to Mazar-e-Sharif, and then to the nearby Qala-i-Janghi (QIJ) prison compound. The following day, November 25, Lindh was interviewed by two Americans — Agent Johnny Micheál Spann from the Central Intelligence Agency (CIA) and another government employee. Later that day, it is alleged that Taliban detainees in the QIJ compound attacked Spann and the other employee, overpowered the guards, and armed themselves. Spann was shot and killed in the course of the uprising and Lindh, after being wounded, retreated with other detainees to a basement area of the QIJ compound. The uprising at QIJ was eventually suppressed on December 1, 2001, at which time Lindh and other Taliban and al Qaeda fighters were taken into custody by Northern Alliance and American forces. Following his capture, Lindh was interrogated, transported to the United States, and ultimately charged in this district with the following offenses in a ten-count Indictment: (i) conspiracy to murder nationals of the United States, including American military personnel and other governmental employees serving in Afghanistan following the September 11, 2001 terrorist attacks, in violation of 18 U.S.C. § 2332(b)(2) (Count One); (ii) conspiracy to provide material support and resources to HUM, a foreign terrorist organization, in violation of 18 U.S.C. § 2339B (Count Two); (in) providing material support and resources to HUM, in violation of 18 U.S.C. § 2339B and 2 (Count Three); (iv) conspiracy to provide material support and resources to al Qaeda, a foreign terrorist organization, in violation of 18 U.S.C. § 2339B (Count Four); (v) providing material support and resources to al Qaeda, in violation of 18 U.S.C. § 2339B and 2 (Count Five); (vi) conspiracy to contribute services to al Qaeda, in violation of 31 §§ C.F.R. 595.205 and 595.204 and 50 U.S.C. § 1705(b) (Count Six); (vii) contributing services to al Qaeda, in violation of 31 C.F.R. §§ 595.204 595.204 and 595.205 and 50 U.S.C. § 1705(b) and 18 U.S.C. § 2 (Count Seven); (viii) conspiracy to supply services to the Taliban, in violation of 31 C.F.R. §§ 545.206(b) and 545.204 and 50 U.S.C. § 1705(b) (Count Eight); (ix) supplying services to the Taliban, in violation of 31 C.F.R. §§ 545.204 and 545.206(a) and 50 U.S.C. § 1705(b) and 18 U.S.C. § 2 (Count Nine); and (x) using and carrying firearms and destructive devices during crimes of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A), 924(e)(l)(B)(ii) and 2 (Count Ten). At issue are the following seven threshold motions to dismiss or transfer filed by the defense: (i) motion to dismiss or, in the alternative, to transfer venue based on pretrial publicity; (ii) motion to dismiss Count One for failure to state a violation of the charging statute; (iii) motion to dismiss Counts Six, Seven, Eight and Nine as lacking statutory, authority; (iv) motion to dismiss Counts Eight and Nine for selective prosecution; (v) motion to dismiss Counts Two through Nine on freedom of association, overbreadth, and vagueness grounds; (vi) motion to dismiss Counts Two, Three, Four and Five for failure to state a claim under the charging statute; and (vii) motion to dismiss Count Ten on the ground that Lindh did not commit a crime of violence. Each motion is separately addressed. II. Lindh requests dismissal of the Indictment on the ground that the media attention surrounding this ease has been so prejudicial as to deprive him of his Sixth Amendment right to a fair trial. He alternatively requests a transfer of venue to the Northern District of California, the district in which he spent his childhood and where he claims the pre-trial publicity has not been as prejudicial as it has been in this district. Lindh also claims that the Northern District of California is more convenient for the parties and witnesses, pursuant to Rule 21(b), Fed.R.Crim.P. The principles that govern resolution of this motion are clear and well settled. The Sixth Amendment guarantees that in all criminal prosecutions, the defendant shall enjoy the right to trial “by an impartial jury.” U.S. Const, amend. VI. In certain extraordinary, circumstances, this fundamental right to trial “by an impartial jury” may be compromised by the presence of pervasive and inflammatory pre-trial publicity. See Chandler v. Florida, 449 U.S. 560, 574, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981); Rideau v. Louisiana, 373 U.S. 723, 726-27, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). And, in this respect, the “burden of establishing prejudicial pre-trial publicity rests on him who asserts it.” Wansley v. Slayton, 487 F.2d 90, 94 (4th Cir.1973). To warrant a dismissal of an indictment on this ground, a defendant must establish that he cannot obtain a fair trial anywhere in the country owing to prejudicial pre-trial publicity. See United States v. Abbott Laboratories, 505 F.2d 565, 571 (4th Cir.1974). In other words, dismissal is appropriate only where a defendant establishes that prejudicial pre-trial publicity is “so widespread and pervasive that a change of venue would be ineffective to assure a defendant a fair trial.” Id. In this regard, it is important to note that “[s]heer volume of publicity alone does not deny a defendant a fair trial.” United States v. Bakker, 925 F.2d 728, 732 (4th Cir.1991) (citing Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977)). Moreover, it is also important to distinguish between factual and inflammatory pre-trial publicity, as it is chiefly the latter that is fraught with the potential for poisoning the venire. See Murphy v. Florida, 421 U.S. 794, 801 n. 4, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). Dismissal of an indictment as a remedy for prejudicial pre-trial publicity is severe and rarely warranted, as it is unlikely that fair and impartial jurors cannot be found in any district. The less severe remedy of transfer is also unwarranted unless a defendant can show that the pretrial publicity in the district “is so inherently prejudicial that trial proceedings must be presumed to be tainted.” Bakker, 925 F.2d at 732. And, significantly, “[o]nly in extreme circumstances may prejudice be presumed from the existence of pretrial publicity itself.” Id. (citing Wells v. Murray, 831 F.2d 468, 472 (4th Cir.1987)). Moreover, transfers of venue based on pre-trial publicity are not often granted, as “the effects of pre-trial publicity on the pool from which jurors are drawn is [generally] determined by a careful and searching voir dire examination.” United States v. McVeigh, 918 F.Supp. 1467, 1470 (W.D.Okla.1996). Indeed, “[o]nly where voir dire reveals that an impartial jury cannot be impanelled would a change of venue be justified.” Bakker, 925 F.2d at 732. In this regard, “it is not required ... that jurors be totally ignorant of the facts and issues involved.” Id. at 734. Rather, “[i]t is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Id. These principles, applied here, compel the conclusion that neither dismissal nor transfer is warranted on the current record of pre-trial publicity. To be sure, this prosecution has understandably occasioned considerable nationwide publicity, and it is likely that few, if any, citizens here in this district, or indeed in any district, will not have read or heard of this case. The parties’ submissions, including numerous news articles, leave no doubt on this point: This case has received considerable nationwide media attention. But this fact is, of course, by itself, no reason for dismissal or transfer, for it is not uncommon in the course of voir dire for a venire member to disclose familiarity with a case by virtue of pre-trial publicity. Indeed, this occurs just as often in locally notorious cases as in cases of national interest. Yet, what ultimately matters is not simply whether a potential juror has heard or read about a case, but whether a prospective “juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Put another way, all prospective jurors in this case, as in all cases, will be questioned carefully as to what they have seen or read or heard about the case and whether they have formed any opinions or impressions. No juror will be qualified to serve unless the Court is satisfied that the juror (i) is able to put aside any previously formed opinions or impressions, (ii) is prepared to pay careful and close attention to the evidence as it is presented in the case and finally (iii) is able to render a fair and impartial verdict based solely on the evidence adduced at trial and the Court’s instructions of law. Just as the sheer volume of pretrial publicity in this case does not compel dismissal or transfer, neither does the nature of that publicity. A review of the parties’ submissions on pre-trial publicity relating to this case discloses that the bulk of the publicity is factual, rather than inflammatory, and hence less likely to poison the venire pool. See Murphy, 421 U.S. at 801 n, 95 S.Ct. 2031. 4. No doubt the publicity in this case also includes some expressions of opinions on newspaper editorial pages or the Internet that were specifically designed to inflame or persuade readers. Yet, on the whole, the record does not warrant a conclusion that prejudicial pre-trial publicity has been so “inherently prejudicial that trial proceedings must be presumed to be tainted” or that Lindh cannot receive a fair trial. Bakker, 925 F.2d at 732. And, in any event, the proof of this pudding will be the voir dire results; only those prospective jurors found to be capable of fair and impartial jury service after careful voir dire will be declared eligible to serve as jurors. Past experience provides reasonable assurance that more than a sufficient number of qualified, impartial jurors will be identified as a result of the voir dire in this case. Nor are Lindh’s expert reports — one prepared by Neil Vidmar and the other by Steven Penrod — to the contrary; neither persuasively supports dismissal of the Indictment or transfer to another district. Vidmar developed a survey interview questionnaire to assess the impact of pre-trial publicity in this case. He later supervised the Evans McDonough Company in conducting random telephone interviews of 400 individuals in this district and, for comparison purposes, 200 individuals in Chicago, Minneapolis, San Francisco and Seattle. Penrod, on the other hand, conducted a content analysis of the pre-trial newspaper coverage concerning Lindh and other issues, as reported in the two major newspapers circulated in Alexandria (the Washington Post and the Washington Times) and, for comparison purposes, the two major newspapers circulated in Minneapolis (the Minneapolis Star Tribune and the St Paul Pioneer Press). Despite Lindh’s arguments to the contrary, the Vidmar report actually supports the conclusion that Lindh is just as likely to receive a fair trial in this district as he is elsewhere in the country. Indeed, Vid-mar concludes that “the stated attitudes of jury eligible respondents in Virginia toward Mr. Lindh between April 29 and May 2 did not differ from stated attitudes in the rest of the country.” Vidmar Report, p. 22, ¶ 156. Moreover, according to the Vid-mar data, approximately three quarters (74%) of the Northern Virginia residents who were polled indicated that they could be fail' and impartial if seated as a juror at Lindh’s trial. Significantly, this percentage exceeds the corresponding percentage reported by Vidmar for California (68.6%), the jurisdiction to which Lindh seeks a transfer. And, contrary to Lindh’s assertions, the fact that a number of the individuals polled in both Virginia and elsewhere knew someone injured or killed in the September 11, 2001 terrorist attacks does not warrant dismissal of the Indictment or a change of venue. Rather, such personal connections to the terrorist attacks are matters adequately addressed and dealt with during the voir dire process. The Penrod report also does not support dismissal or transfer of the case. Indeed, on more than half the subjects covered by the survey, the Minneapolis newspapers were either harsher in their assessment of Lindh or expressed “unfavorable” opinions to the same extent as did the Alexandria newspapers. Additionally, on those subjects where the Alexandria newspapers were found to be less favorable toward Lindh than the Minneapolis newspapers, the percentages were often so close as to be statistically insignificant. Penrod’s survey is also methodologically flawed in several respects, as he fails to take into account any television or computer generated publicity, or to adjust his conclusions in light of the differences in circulation rates of the newspapers studied. Penrod also places great emphasis on the extensive media attention in the Alexandria newspapers regarding the emotional and economic impact of the September 11, 2001 terrorist attack on the Pentagon. As indicated above, any personal connections of potential jurors to the Pentagon attack, or any of the other September 11, 2001 terrorist attacks, are issues that are appropriately resolved in the course of voir dire. Finally, it is worth noting that Lindh is not entitled to a “favorable” jury, as Penrod appears to suggest; nor is he entitled to a jury that has not been privy to any media reports regarding the instant prosecution, favorable or unfavorable. Rather, what the Sixth Amendment guarantees Lindh, and all criminal defendants, is a fair and impartial jury. See U.S. Const, amend. VI. Nothing in the studies and data Lindh submitted supports a conclusion that Lindh cannot receive a fair and impartial jury trial in this district. Lindh’s motion to transfer the case to the Northern District of California for purposes of convenience, pursuant to Rule 21(b), Fed.R.Crim.P., is equally unpersuasive. Indeed, contrary to Lindh’s contentions, there are multiple reasons for concluding that transfer from this district is inappropriate, including the following: (i) the trial will proceed more expeditiously in this district; (ii) this district is equipped and prepared to cope with the significant security concerns associated with this case; (iii) the prosecution team is comprised largely of attorneys from this district; (iv) the relevant documents are located in this district; (v) the defendant is present in this district, subject to security measures already in place; and (vi) a number of potential witnesses are located in or near this district. Moreover, the fact that four of Lindh’s attorneys reside in California rather than in this district is an inconvenience of his own choosing. No claim is made, or can be made, that competent and experienced counsel cannot be found in this district. Of course, Lindh has a Sixth Amendment right to select competent and experienced counsel from another district, which he has done, but he is not entitled to rely on the exercise of that right to effect a change of venue. In conclusion, it is clear that neither a dismissal of the Indictment nor a transfer of venue is warranted in this case. Specifically, Lindh has failed to meet his burden of establishing that the pre-trial publicity generated in this case, by both the government and the defense, “has been so inflammatory and prejudicial that a fair trial is absolutely precluded and [the] indictment should be dismissed without an initial attempt ... to see if an impartial jury can be impanelled.” Abbott, 505 F.2d at 571. He has also failed to establish that a transfer of venue based on pre-trial publicity is is appropriate are: (i) location of the defendant; (ii) location of possible witnesses; (iii) location of the events at issue; (iv) location of documents and records; (v) disruption of defendant’s business; (vi) expense to the parties; (vii) location of counsel; (viii) relative accessibility of place of trial; (ix) docket condition of each district; and (x) any other special elements which might affect the transfer. See Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 243-44, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964). appropriate, as the publicity involved here is not “so inherently prejudicial that trial proceedings [in this district] must be presumed to be tainted.” Bakker, 925 F.2d at 732. Nor is a transfer of venue for purposes of convenience warranted under Rule 21(b), Fed.R.Crim.P. Rather, the appropriate course of action in the circumstances is to continue the proceedings in this district and to conduct a thorough voir dire of all potential jurors to ensure the selection of a fair and impartial jury that is able to set aside any pre-conceived notions regarding this case and render an impartial verdict based solely on the evidence presented in the case and the Court’s instructions of law. III. Lindh claims that Count One of the Indictment should be dismissed because, as a Taliban soldier, he was a lawful combatant entitled to the affirmative defense of lawful combatant immunity. Lawful combatant immunity, a doctrine rooted in the customary international law of war, forbids prosecution of soldiers for their lawful belligerent acts committed during the course of armed conflicts against legitimate military targets. Belligerent acts committed in armed conflict by enemy members of the armed forces may be punished as crimes under a belligerent’s municipal law only to the extent that they violate international humanitarian law or are unrelated to the armed conflict. This doctrine has a long history, which is reflected in part in various early international conventions, statutes and documents. But more pertinent, indeed controlling, here is that the doctrine also finds expression in the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949. 6 U.S.T. 3316, 75 U.N.T.S. 135 (“GPW”), to which the United States is a signatory. Significantly, Article 87 of the GPW admonishes that combatants “may not be sentenced ... to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts.” GPW, art. 87. Similarly, Article 99 provides that “[n]o prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed.” GPW, art. 99. These Articles, when read together, make clear that a belligerent in a war cannot prosecute the soldiers of its foes for the soldiers’ lawful acts of war. The inclusion of the lawful combatant immunity doctrine as a part of the GPW is particularly important here given that the GPW, insofar as it is pertinent here, is a self-executing treaty to which the United States is a signatory. It follows from this that the GPW provisions in issue here are a part of American law and thus binding in federal courts under the Supremacy Clause. This point, which finds support in the cases, is essentially conceded by the government. Moreover, the government does not dispute that this immunity may, under appropriate circumstances, serve as a defense to criminal prosecution of a lawful combatant. Importantly, this lawful combatant immunity is not automatically available to anyone who takes up arms in a conflict. Rather, it is generally accepted that this immunity can be invoked only by members of regular or irregular armed forces who fight on behalf of a state and comply with the requirements for lawful combatants. Thus, it is well-established that the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. Ex Parte Quirin, 317 U.S. 1, 30-31, 63 S.Ct. 2, 87 L.Ed. 3 (1942) (footnote omitted). The GPW also reflects this distinction between lawful and unlawful combatants, with only the former eligible for immunity from prosecution. See GPW, art. 87, 99. Thus, the question presented here is whether Lindh is a lawful combatant entitled to immunity under the GPW. The starting point in the analysis of Lindh’s immunity claim is recognition that the President has unequivocally determined that Lindh, as a member of the Taliban, is an unlawful combatant and, as such, may not invoke lawful combatant immunity. On February 7, 2002, the White House announced the President’s decision, as Commander-in-Chief, that the Taliban militia were unlawful combatants pursuant to GPW and general principles of international law, and, therefore, they were not entitled to POW status under the Geneva Conventions. This presidential determination, according to the government, is significant, indeed decisive, because the President, as the “Commander in Chief of the Army and Navy of the United States,” has broad constitutional power to issue such a determination. Moreover, in the current conflict, he has also been “authorized” by Congress “to use all necessary and -appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” Authorization for Use of Military Force, Pub.L. No. 107-40, § 2, 115 Stat. 224 (2001). Thus, the government argues, the decision of the President to use force against the Taliban and al Qaeda, as endorsed by Congress, represents the exercise of the full extent of his constitutional presidential authority. It follows, the government contends, that the President’s determination that Taliban members are unlawful combatants was made pursuant to his constitutional Commander-in-Chief and foreign affairs powers and is therefore not subject to judicial review or second guessing because it involves a quintessentially nonjusticiable political question. This argument, while not without appeal, is ultimately unpersuasive. Because the consequence of accepting a political question argument is so significant — judicial review is completely foreclosed— courts must subject such arguments to searching scrutiny, for it is central to the rule of law in our constitutional system that federal courts must, in appropriate circumstances, review or second guess, and indeed sometimes even trump, the actions of the other governmental branches. At a minimum, this scrutiny requires careful consideration of whether the circumstances that trigger the application of the political question doctrine are present here. Thus, it is difficult to see, except at the highest level of abstraction, a textually demonstrable constitutional commitment regarding this issue. Moreover, it is difficult to see why the application of the GPW’s lawful combatant immunity doctrine to Lindh’s case involves a lack of judicially discoverable and manageable standards. Indeed, the contrary appears to be true. The presence of any remaining factors is also doubtful. To sum up briefly then, while it may be argued that some of the triggering circumstances for a political question are present to some degree here, others plainly are not and thus the government’s political question argument is ultimately unpersuasive. Understandably and appropriately, therefore, courts have recognized that treaty interpretation does not implicate the political question doctrine and is not a subject beyond judicial review. This, however, does not end the analysis, for it remains important to determine the precise nature of judicial review that is appropriate here, including, in particular, what, if any, respect or effect should be afforded the President’s determination that Lindh and the Taliban are not lawful combatants entitled to lawful combatant immunity. The answer to this question may be found both in settled caselaw and in sound principle. Thus, courts have long held that treaty interpretations made by the Executive Branch are entitled to some degree of deference. This result also finds support in the principles underlying the Chevron doctrine, which holds that deference to an agency’s reasonable interpretation of an ambiguous statute is appropriate where the agency has been charged with administering the statute. The rationale of Chevron is that a statutory ambiguity is essentially a delegation of authority by Congress to the responsible agency to resolve the ambiguity. By analogy, treaty interpretation and application warrants similar Chevron deference to the President’s interpretation of a treaty, as American treaty-makers may be seen as having delegated this function to the President in light of his constitutional responsibility for the conduct of foreign affairs and overseas military operations. It is important to recognize that the deference here is appropriately accorded not only to the President’s interpretation of any ambiguity in the treaty, but also to the President’s application of the treaty to the facts in issue. Again, this is warranted given the President’s special competency in, and constitutional responsibility for, foreign affairs and the conduct of overseas military operations. It is also crucial to be precise regarding the nature of the deference warranted. Conclusive deference, which amounts to judicial abstention, is plainly inappropriate. Rather, the appropriate deference is to accord substantial or great weight to the President’s decision regarding the interpretation and application of the GPW to Lindh, provided the interpretation and application of the treaty to Lindh may be said to be reasonable and not contradicted by the terms of the treaty or the facts. It is this proviso that is the focus of the judicial review here of the President’s determination that Lindh is an unlawful combatant under the GPW. The GPW sets forth four criteria an organization must meet for its members to qualify for lawful combatant status: i. the organization must be commanded by a person responsible for his subordinates; ii. the organization’s members must have a fixed distinctive emblem or uniform recognizable at a distance; iii. the organization’s members must carry arms openly; and iv. the organization’s members must conduct their operations in accordance with the laws and customs of war. See GPW, art. 4(A)(2). Nor are these four criteria unique to the GPW: they are also established under customary international law and were also included in the Hague Regulations of 1907. See Hague Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539 (Hague Regulations). In the application of these criteria to the case at bar, it is Lindh who bears the burden of establishing the affirmative defense that he is entitled to lawful combatant immunity, ie., that the Taliban satisfies the four criteria required for lawful combatant status outlined by the GPW. On this point, Lindh has not carried his burden; indeed, he has made no persuasive showing at all on this point. For this reason alone, it follows that the President’s decision denying Lindh lawful combatant immunity is correct. In any event, a review of the available record information leads to the same conclusion. Thus, it appears that the Taliban lacked the command structure necessary to fulfill the first criterion, as it is manifest that the Taliban had no internal system of military command or discipline. As one observer noted, “there is no clear military structure with a hierarchy of officers and commanders while unit commanders are constantly being shifted around,” and the Taliban’s “haphazard style of enlistment ... does not allow for a regular or disciplined army.” Kamal Matinuddin, The Taliban Phenomenon: Afghanistan 1994-97 59 (1999). Thus, Lindh has not carried his burden to show that the Taliban had the requisite hierarchical military structure. Similarly, it appears the Taliban typically wore no distinctive sign that could be recognized by opposing combatants; they wore no uniforms or insignia and were effectively indistinguishable from the rest of the population. The requirement of such a sign is critical to ensure that combatants may be distinguished from the non-combatant, civilian population. Accordingly, Lindh cannot establish the second criterion. Next, although it appears that Lindh and his cohorts carried arms openly in satisfaction of the third criterion for lawful combatant status, it is equally apparent that members of the Taliban failed to observe the laws and customs of war. See GPW, art. 4(A)(2). Thus, because record evidence supports the conclusion that the Taliban regularly targeted civilian populations in clear contravention of the laws and customs of war, Lindh cannot meet his burden concerning the fourth criterion. In sum, the President’s determination that Lindh is an unlawful combatant and thus ineligible for immunity is controlling here (i) because that determination is entitled to deference as a reasonable interpretation and application of the GPW to Lindh as a Taliban; (ii) because Lindh has failed to carry his burden of demonstrating the contrary; and (in) because even absent deference, the Taliban falls far short when measured against the four GPW criteria for determining entitlement to lawful combatant immunity. IY. Lindh argues that Counts Six through Nine of the Indictment should be dismissed because they charge violations of regulations that were promulgated in excess of the statutory authority provided by the parent legislation, the International Economic Emergency Powers Act (“IEE-PA”). 50 U.S.C. § 1701 et seq. Specifically, these four counts charge Lindh with “Contributing Services to al Qaeda,” “Supplying Services to the Taliban,” and conspiraey to do each of these, all in violation of, respectively, 31 C.F.R. §§ 545.204, 545.206, 595.204, 595.205 (collectively, the “Regulations”). Simply put, Lindh contends that IEEPA does not authorize the promulgation of the Regulations to proscribe the conduct alleged in the Indictment. More particularly, Lindh argues that IEEPA cannot be construed to authorize promulgation of any regulations prohibiting his voluntary and noncommercial donation of services to the Taliban and al Qaeda. The IEEPA is a relatively recent addition to this country’s arsenal of sanctions to be used against hostile states and organizations in times of national emergency. For much of the twentieth century, this county’s sanctions programs were governed by the Trading with the Enemy Act (hereafter “TWEA”), enacted in 1917. As amended in 1933, TWEA granted the President broad authority “to investigate, regulate, ... prevent or prohibit ... transactions” in times of war or declared national emergencies. See 50 U.S.C. app. § 5(b); see also Dames & Moore v. Regan, 453 U.S. 654, 672, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981). Congress changed this statutory scheme in 1977 to limit TWEA’s application to periods of declared wars, but created IEEPA to provide the President similar authority for use during other times of national emergency. See Senate Rep. No. 95-466 at 2, reprinted in 1977 U.S.C.C.A.N. 4540, 4541; see also Regan v. Wald, 468 U.S. 222, 227-28, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984); United States v. Arch Trading Co., 987 F.2d 1087, 1093 (4th Cir.1993) (“IEEPA ... was drawn from and constitutes an extension of the [TWEA].”). Specifically, the language of IEEPA vests the President with the power to prescribe regulations to regulate, direct and compel, nullify, void, prevent or prohibit any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person.... 50 U.S.C. § 1792(a)(1)(B). This power includes the authority to prescribe “definitions, as may be necessary for the exercise of the authorities granted by this chapter.” 50 U.S.C. § 1704. In January 1995, President Clinton, exercising his IEEPA authority, issued Executive Order 12947, declaring a national emergency to deal with the extraordinary threat posed by foreign terrorists who disrupt the Middle East peace process. See 60 Fed.Reg. 5079 (1995). In Section 1 of that Order, the President prohibited “any transaction or dealing by United States persons ... in property or interests in property of the persons designated in or pursuant to this order ..., including the making or receiving of any contribution of funds, goods, or services to or for the benefit of such persons.” 60 Fed.Reg. 5079. And Section 4 of the Order empowered the Secretary of the Treasury “to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to [the President] by IEEPA as may be necessary to carry out the purposes” of the Order. 60 Fed.Reg. 5080. Thereafter, the Treasury Department, via the Office of Foreign Assets Control (“OFAC”), promulgated, inter alia, 31 C.F.R. § 595.204, which, in relevant part, repeated the mandate of Executive Order 12947 regarding the prohibition on “the making or receiving of any contribution of funds, goods, or services” to or for the benefit of terrorists designated in, or pursuant to, the Executive Order. 31 C.F.R. § 595.204. OFAC also promulgated a regulation prohibiting conspiracy to commit such an act. See 31 C.F.R. § 595.205. Then, in August 1998, President Clinton added al Qaeda to the list of terrorists subject to sanctions under the Order. See Executive Order 13099, 63 Fed.Reg. 45167 (1998). In July 1999, again drawing upon his IEEPA authority, President Clinton issued Executive Order 13129, declaring a national emergency to deal with the threat posed by the Taliban. Specifically, the President found that the actions of the Taliban in Afghanistan in allowing territory there to be used as a safehaven and base of operations for Usama bin Laden and al Qaeda constituted an unusual and extraordinary threat to the national security and Foreign policy of the United States. See 64 Fed.Reg. 36759 (1999). Presidents Clinton and Bush subsequently determined, in June 2000 and in June 2001, that the national emergency with respect to the Taliban would continue. See 65 Fed.Reg. 41549 (2000); 66 Fed. Reg. 35363 (2001). In Section 2 of Executive Order 13129. President Clinton prohibited “any transaction or dealing by United States persons ... in property or interests in property blocked pursuant to this order, ... including the making or receiving of any contribution of funds, goods, or services to or for the benefit of the Taliban.” 64 Fed.Reg. 36759. In Section 5 of the Order, he empowered the Secretary of the Treasury “to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to [the President] by IEE-PA as may be necessary to carry out the purposes” of the Order. Responding to this direction, the Secretary of the Treasury, again through OFAC, promulgated the Taliban sanctions regulations, which repeat, in relevant part, Executive Order 13129, and prohibit “the making or receiving of any contribution of funds, goods, or services to or for the benefit of the Taliban,” bar the supply of “services” by a U.S. person to the Taliban, and explain that the ban on “services” to the Taliban applies to services “performed on behalf of the Taliban.” Despite the breadth of the Regulations and Executive Orders issued pursuant to IEEPA. Lindh asserts that IEEPA does nothing more than permit the President to freeze the assets of a foreign state or foreign national and prohibit certain international financial transactions during times of a declared national emergency. Lindh argues, moreover, that neither the plain meaning of IEEPA, nor its legislative history, indicate that it provides a basis for the wide-ranging regulations here in issue. Thus, Lindh argues, the Regulations he is charged with violating, namely, 31 C.F.R. §§ 545.204, 545.206, 595.204, 595.205, exceed IEEPA’s statutory grant of power. The straightforward question presented, therefore, is whether the Regulations are within the scope of IEEPA. As this is a question of statutory construction, analysis must begin “as always with the language of the statute.” And, “when a statute is plain on its face, a courts inquiry is at an end.” Only when a statute’s plain meaning is ambiguous is it appropriate to consider its structure and purpose to resolve an ambiguity and determine the statute’s meaning. See United States v. Clifford, 197 F.Supp.2d 516, 519 (E.D.Va. 2002). The IEEPA language in issue is as follows: the President may, under such regulations as he may prescribe, by means of instructions, licenses, or otherwise— (A) investigate, regulate, or prohibit— (i) any transactions in foreign exchange, (ii) transfers of credit or payments between, by, through or to any banking institution, to the extent that such transfers or payments involve any interest of any foreign country or a national thereof, (iii) the importing or exporting of currency or securities; and (B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest; by any person, or with respect to any property, subject to the jurisdiction of the United States. 50 U.S.C. § 1702. This language manifestly sweeps broadly, as courts have consistently recognized in according deference to various sanctions programs under IEE-PA and TWEA. On the question presented — whether the statute authorizes issuance of the Regulations — the statute’s plain language is dispositive. Specifically, the dispositive language authorizes regulation and prohibition of the “use ..., or dealing in, or exercising any right, power, or privilege with respect to, ... any property” in which any “foreign country or national” has an interest. This sweeping language provides ample authority for the issuance of the Regulations and also easily reaches Lindh’s alleged conduct. This conduct — which includes, for example, attending Taliban and al Qaeda training camps, using and transporting Taliban and al Qaeda weapons and ammunition, and using Taliban and al Qaeda transportation and residence facilities — plainly involves “use” of Taliban and al Qaeda “property.” And, given the breadth of the common dictionary meanings of “use,” “dealing,” “transactions” and “property,” there is similarly no doubt that Lindh’s provision of combatant services to the Taliban and al Qaeda also falls within the IEEPA and the Regulations. Although IEEPA’s plain language is clearly broad enough to authorize the Regulations, the same result would obtain even were the IEEPA deemed ambiguous. In that event, under settled Chevron principles, the President’s and the Treasury Secretary’s determinations as to the proper scope and construction of the IEEPA are entitled to deference unless, as is not true here, those determinations are unreasonable or contrary to the statutory language. The D.C. Circuit put this point well in connection with upholding the validity of related OFAC regulations: By section 1704 of the Emergency Powers Act the President may “issue such regulations, including regulations prescribing definitions, as may be necessary for the exercise of the authorities granted by this chapter.” ... The President delegated his power to define the statutory terms to the Secretary of the Treasury, and OFAC exercises the delegated power on the Secretary’s behalf. By these provisions OFAC has received the authority to administer the statute, so that we must give effect to OFAC’s regulations unless they contradict express statutory language or prove unreasonable. Consarc Corp. v. Iraqi Ministry, 27 F.3d 695, 701 (D.C.Cir.1994) (citations omitted). Similarly, the OFAC regulations here in issue must be given effect as they neither contradict the IEEPA, nor are they unreasonable. Lindh’s conduct falls within the ambit of the IEEPA for yet another reason. The IEEPA contains only two express exceptions, neither of which covers Lindh’s conduct. This feature of IEEPA calls into play the settled principle that “[w]here Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.” TRW v. Andrews, 534 U.S. 19, 122 S.Ct. 441, 447, 151 L.Ed.2d 339 (2001). This principle operates to defeat Lindh’s efforts to limit the IEEPA’s reach by implying an exclusion for the donation of services in a noncommercial setting to foreign terrorist organizations. Such services are clearly within the broad sweep of the statute’s plain language. Lindh seeks to avoid the result reached here by arguing that IEEPA concerns only commercial or economic conduct. In support, he cites the statute’s title and the fact that many cases involving IEEPA and TWEA address solely economic or commercial activity. This argument, while not implausible, is again contradicted by the statute’s sweeping broad language. As noted, the plain dictionary meanings of statutory terms like “transaction,” “dealing,” “use,” and “property” do not limit them use to commercial transactions; these terms are sufficiently broad to cover the conduct alleged here, including the donations of combatant services. Lindh also argues unpersuasively that the D.C. Circuit’s decision in American Airways Charters, Inc. v. Regan, 746 F.2d 865, 871-74 (D.C.Cir.1984) precludes the result reached here. There, the court held that under the TWEA the Executive Branch could require a license before execution of a transaction reaching assets of a designated Cuban national, but that it lacked the authority to condition the bare formation of an attorney-client relationship on advance governmental approval. This decision is easily distinguishable from the instant case; it is rooted in constitutional due process concerns arising from the formation of the attorney-client relationship and the ability of a person to choose his or her counsel; it does not address the IEE-PA’s scope or the question whether that scope is ample authorization for the Regulations in issue. Equally unpersuasive is Lindh’s claim that because the statutory authority of IEEPA is at best ambiguous, the rule of lenity calls for dismissal. Where, as here, “[t]he fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity.” See PGA Tour, Inc. v. Martin, 532 U.S. 661, 689, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001). Rather, such wide applicability demonstrates breadth. See id. Indeed, IEEPA is simply not an ambiguous statute, and, accordingly, the rule of lenity is inapplicable here. See Clifford, 197 F.Supp.2d at 522. In summary, because the IEEPA’s expansive plain language furnishes ample authority for the promulgation of the Regulations, this motion to dismiss must be denied. V. Lindh next argues that Counts Eight and Nine of the Indictment, which charge Lindh with providing and conspiring to provide prohibited services to the Taliban, should be dismissed because he is the victim of impermissible selective prosecution, in violation of his right to equal protection under the Fifth Amendment. Specifically, Lindh argues (i) he is the first to be prosecuted or criminally investigated under 31 C.F.R. §§ 545.204, 545.206(a), 545.206(b), despite the fact that others appear to have violated these Regulations; and (ii) his selection for prosecution under the Regulations is based on his exercise of First Amendment rights. Should dismissal not be apparent on the existing record, Lindh seeks an evidentiary hearing to demonstrate the validity of his claim. In directing that the Executive Branch “take Care that the Laws be faithfully executed,” the Constitution clearly confers broad prosecutorial discretion on that Branch. As a result of this constitutional delegation of authority, a “presumption of regularity” attaches to the Executive Branch’s prosecutorial decisions, and “in the absence of clear evidence to the contrary, courts presume that [the President, Attorney General, and the United States Attorneys] have properly discharged their official duties.” United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (quoting United States v. Chemical Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926)). Ordinarily, the decision whether to prosecute, whether to bring particular charges, or whether to bring a case before a grand jury rests entirely in the discretion of the Executive Branch. See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); see also Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985) (holding that prosecutive decisions are “particularly ill-suited to judicial review” because an evaluation of prosecutive factors is not “susceptible to the kind of analysis courts are competent to undertake”). Yet, this discretion is neither limitless nor wholly immune from judicial scrutiny; claims of selective prosecution must be judicially examined and prosecu-torial decisions found by courts to be infected by impermissible discriminatory purposes and effects that violate equal protection are subject to dismissal. See Armstrong, 517 U.S. at 465, 116 S.Ct. 1480. Significantly, claims of selective prosecution are not easily established. Such a claim “is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.” Id. at 463, 116 S.Ct. 1480. To prevail on a selective prosecution claim based upon equal protection. Lindh bears the heavy burden of showing both that the government’s prosecution policy had a discriminatory effect and that it was motivated by a discriminatory purpose. In other words, to overcome the presumption of regularity that attaches to prosecutorial decisions and to establish a prima facie case of impermissible selective prosecution, a defendant must show “clear evidence” of both “discriminatory effect” and “discriminatory, purpose.” Id. at 465, 116 S.Ct. 1480. This standard is intended to be both “demanding” and “rigorous.” United States v. Olvis, 97 F.3d 739, 743 (4th Cir.1996) (internal quotation marks and citations omitted). Even to obtain discovery — relief Lindh seeks here in the alternative — a defendant must meet a “correspondingly rigorous standard,” namely, showing “some evidence” of “the existence of the essential elements of the defense.” Armstrong, 517 U.S. at 468, 116 S.Ct. 1480 (quoting United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)). This evidentiary threshold is “intended to be ‘a significant barrier to the litigation of insubstantial claims,”’ because “discovery ‘imposes many of the costs presented when the Government must respond to a prima facie case of selective prosecution.’ ” In this case, Lindh has neither demonstrated the essential elements of a selective prosecution claim, nor met the rigorous evidentiary standard for obtaining discovery on such a claim. To surmount the first hurdle in the selective prosecution analysis, Lindh must establish a discriminatory effect by showing that similarly situated individuals outside of the protected group were not prosecuted. See Armstrong, 517 U.S. at 465, 116 S.Ct. 1480; United States v. Hastings, 126 F.3d 310, 315 (4th Cir.1997). Such a showing is an “absolute requirement.” Armstrong, 517 U.S. at 467, 116 S.Ct. 1480. In this respect, Lindh claims he is in a protected class of persons that has exercised its First Amendment rights by associating with the Taliban for religious reasons. He therefore claims he is the victim of selective prosecution because the government has chosen not to prosecute others who provided services to the Taliban for non-religious reasons, but to prosecute him for providing services for religious reasons. Specifically, Lindh seeks to compare his prosecution to the non-prosecution of the following five entities: Telephone Systems International (TSI), Unocal, the University of Nebraska at Omaha (UNO), Laili Helms, and Abdul Hakim Mojahid. Lindh’s argument fails on two grounds. First, Lindh fails to show that the two individuals, Helms and Mojahid, associated with the Taliban for non-religious reasons. Accordingly, on this record, Lindh has not shown that they are outside his protected class. Second, it is apparent that none of the entities Lindh identifies are similarly situated to him. As the Fourth Circuit has noted, “defendants are similarly situated when their circumstances present no distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them.” Olvis, 97 F.3d at 744. In Olvis, the Fourth Circuit rejected the selective prosecution claims of two African-American defendants charged with conspiring to distribute crack cocaine who alleged they were similarly situated to white co-conspirators who had been granted immunity or not been prosecuted. See id. The Fourth Circuit held that the district court erred by considering only the relative culpability of the conspirators and failing to “take into account several factors that play important and legitimate roles in prosecutorial decisions,” namely i. offers of immunity to a defendant; ii. strength of evidence against a defendant; iii. a defendant’s role in the crime; iv. whether a defendant is being prosecuted by another jurisdiction; v. a defendant’s candor and willingness to plead guilty; vi. the amount of resources required to convict a defendant; vii. the extent of prosecutorial resources; viii. the potential impact of a prosecution on related investigations and prosecutions; and ix. prosecutorial priorities for addressing specific types of illegal conduct. See id. Thus, the government is clearly entitled to establish “prosecutorial priorities for addressing specific types of illegal conduct” and to make prosecutorial decisions based on those priorities. Olvis, 97 F.3d at 744. Based on legitimate prosecu-torial factors, Lindh’s circumstances are plainly distinguishable from the purported circumstances of TSI, Unocal, UNO, Helms, and Mojahid. Indeed, the nature of the combatant services Lindh provided to the Taliban is, by itself, a distinction sufficient to justify his prosecution over TSI, Unocal, UNO, Helms, and Mojahid: none of these entities swore allegiance to jihad, trained at an al Qaeda or Taliban camp, or traveled to the front lines and there engaged in combat on behalf of al Qaeda or the Taliban. Simply put, the five entities cited by Lindh are not similarly situated to him. Lindh’s selective prosecution claim fails not simply because he is unable to show a discriminatory effect, but also because he cannot show a discriminatory purpose. To establish that this prosecution was motivated by a discriminatory purpose, Lindh must show “that the decision to prosecute was ‘invidious or in bad faith.’ ” Olvis, 97 F.3d at 743 (quoting Berrios, 501 F.2d at 1211). Lindh relies on three factors to support his claim of discriminatory purpose: (i) the allegations in the Complaint; (ii) the IEEPA’s legislative history; and (iii) “the high-level decisionmaking that led to [the defendant’s] prosecution.” None of these factors demonstrate the requisite discriminatory purpose. To be sure, the allegations in the Complaint and the Indictment chronicle Lindh’s conversion to Islam, his religious studies in Yemen and Pakistan, his voluntary association with the Taliban, and his oath of allegiance to jihad. Yet, none of this proves, as Lindh suggests, that the government prosecuted him because of his religious association. Instead, these allegations do nothing more than provide a chronology and context to explain how Lindh came to be on the battle front in Afghanistan and to supply services and support to the Taliban and al Qaeda. Discriminatory purpose cannot be inferred from a recitation of historical facts that merely provide context for criminal charges. Here, nothing in the Complaint or the Indictment suggests that Lindh’s religious reasons for providing services to the Taliban motivated the government’s decision to charge him with the offenses set out in Counts Eight and Nine. To the contrary, the serious offenses with which he is charged, ie., conspiracy to murder U.S. nationals and aiding foreign terrorist states and organizations, are manifestly the reasons for his prosecution, not his religious affiliation. Given the gravity of the allegations, there is every reason to believe that Lindh would have been prosecuted even had he been, say, a Presbyterian, a Scientologist, or an atheist. Lindh argues that legislative history reflects that the IEEPA and the Regulations promulgated thereunder were intended to prohibit solely commercial or economic conduct. From this, Lindh argues that the extension of the IEEPA and the Regulations to cover his conduct can only be explained by his selective prosecution claim. As noted elsewhere, however, the IEEPA and its Regulations are not limited to commercial transactions, as Lindh argues, but are more than ample in scope to cover the conduct alleged in the Indictment. There is, in short, no basis in the IEEPA’s legislative history to support an inference that his prosecution was undertaken for a discriminatory purpose. Lindh also argues that because the President, the Attorney General, and other high-level officials were involved in the decision to prosecute him, his prosecution was somehow selective. Yet, simply because these decisions were allegedly made by high-level officials does not mean that these persons had a discriminatory purpose or intent. The inference Lindh advocates — that the involvement of high-level officials in the prosecution decision means that the decision was infected with disc