United States v. Al-Imam (373 F. Supp. 3d 247, 2019)

CHRISTOPHER R. COOPER, United States District Judge

On September 11 and 12, 2012, a group of Libyan militants attacked U.S. diplomatic and intelligence facilities in Benghazi, Libya. Four Americans died in the attacks, including then-United States Ambassador to Libya J. Christopher Stevens. The United States alleges, in a seventeen-count superseding indictment, that Defendant Mustafa Muhammad Mufta Al-Imam participated in the attacks. Al-Imam has moved to dismiss all but one of the counts. He contends that most of the statutes under which he is charged do not apply to conduct undertaken outside of the United States; that he cannot be prosecuted for eleven of the counts because his capture violated international law; and that six counts must be dismissed because the offenses charged apply only to legally operated federal facilities, which he says excludes the facilities here.

Save for the illegal capture argument, the Court has previously considered and rejected each of Al-Imam's challenges in ruling on a motion to dismiss brought by one of his purported co-conspirators, Ahmed Abu Khatallah, who was convicted in November 2017 of three of the offenses with which Al-Imam is also charged. See Judgment, United States v. Ahmed Abu Khatallah, 14-cr-141, ECF No. 547. Recognizing this obstacle to dismissal, Al-Imam urges the Court to reconsider its prior analysis, particularly with respect to his extraterritorial challenge. But the Court finds no reason to depart from its conclusion in Abu Khatallah. It also finds Al-Imam's capture argument unavailing. Accordingly, and for the reasons that follow, the Court will deny Al-Imam's motion to dismiss with respect to all counts.

I. Background

Muammar Gaddafi seized power in Libya in 1969 and remained its leader until 2011, when a civil war broke out. Indictment ¶ 2. The war erupted in the Libyan coastal city of Benghazi, which was controlled by rebels and served as the base of operations for the rebel-led Transitional National Council ("TNC"). Id. On February 25, 2011, the U.S. Department of State evacuated American personnel from Libya and suspended its operations at the U.S. Embassy in Tripoli. Id. ¶ 3. Less than two months later, in April 2011, the State Department reestablished its presence in the country with the arrival in Benghazi of U.S. Special Envoy J. Christopher Stevens. Id. ¶ 4.

On July 15, 2011, the United States officially recognized the TNC as Libya's governing authority. Id. One month later, Gaddafi was ousted from power and killed. Id. In November 2011, the United States established a diplomatic outpost in Benghazi, known as the U.S. Special Mission ("Mission"), where a contingent of State Department personnel were stationed. Id. ¶ 5. The United States established a second Benghazi facility, this one known as the Annex, where additional U.S. personnel were based. Id. ¶ 6.

In May 2012, the United States dispatched Stevens, now the U.S. Ambassador to Libya, to the Libyan capital of Tripoli. Id. ¶ 7. Ambassador Stevens traveled to Benghazi to visit the Mission compound on September 10, 2012. Id. Stationed at the compound and present during the Ambassador's visit were Information Management Officer Sean Patrick Smith; Assistant Regional Security Officers Scott Wickland and David Ubben; and Security Officers Tyrone Snowden Woods, Glen Anthony Doherty, and Mark Geist. See id. ¶¶ 13-18.

Around 9:45 p.m. on September 11, 2012, approximately twenty men-armed with assault rifles, handguns, and rocket-propelled grenade launchers-attacked the Mission. Id. ¶ 22. After breaching the facility, the attackers set fire to several buildings, causing the deaths of Ambassador Stevens and Sean Smith. Id. The remaining State Department personnel escaped to the Annex, which soon also came under attack, ending in mortar fire that killed Tyrone Woods and Glen Doherty. Id.

Al-Imam was captured in Libya on or about October 29, 2017, during an operation by U.S. armed forces personnel. He was thereafter transported to the District of Columbia to stand trial. A federal grand jury on October 25, 2018 returned a seventeen-count superseding indictment. According to the indictment, the Mission and Annex attacks were carried out, at least in part, by members of the extremist group Ubaydah Ibn Al Jarrah ("UBJ"), whose commander was Abu Khatallah. Indictment ¶ 9. The government alleges that Al-Imam was a close associate of Abu Khatallah and was present for, helped orchestrate, and participated in the attacks. Id. ¶¶ 9-11. According to the indictment, Al-Imam entered the Mission at the direction of Abu Khatallah and took sensitive material, including material that identified the Annex by location and as the evacuation point for Department of State personnel. Id. ¶ 22; Opposition Mot. Dismiss ("Opp.") at 3. Al-Imam then assembled with Abu Khatallah and others to coordinate the attack on the Annex. Id.

The specific charges against Al-Imam are as follows: Count One - Conspiracy to Provide Material Support and Resources to Terrorists Resulting in Death, in violation of 18 U.S.C. § 2339A ; Count Two - Providing Material Support and Resources to Terrorists Resulting in Death, in violation of 18 U.S.C. §§ 2339A and 2; Count Three - Killing of an Internationally Protected Person (Ambassador Stevens), in violation of 18 U.S.C. §§ 1116, 1111 and 2; Counts Four through Six - three counts of Killing Officers and Employees of the United States (Smith, Woods, and Doherty), in violation of 18 U.S.C. §§ 1114, 1111 and 2; Counts Seven through Nine - two counts of Attempting to Kill Officers and Employees of the United States (Wickland, Ubben, and Geist), in violation of 18 U.S.C. §§ 1114, 1113 and 2; Counts Ten through Thirteen - four counts (one for each victim) of Killing a Person in the Course of an Attack on a Federal Facility Involving the Use of a Firearm or a Dangerous Weapon, in violation of 18 U.S.C. §§ 930(c), 1111 and 2; Counts Fourteen and Fifteen - two counts (one for each facility attacked) of Maliciously Damaging and Destroying U.S. Property by Means of Fire and an Explosive Causing Death, in violation of 18 U.S.C. §§ 844(f)(1) and (3) and 2; and Counts Sixteen and Seventeen - two counts (one for each facility attacked) of Willfully and Maliciously Destroying Property within the Special Maritime and Territorial Jurisdiction of the United States and Placing Lives in Jeopardy, in violation of 18 U.S.C. §§ 1363, 7 and 2.

Al-Imam moves to dismiss all but one count, arguing that most of the statutes under which he is charged do not apply extraterritorially, that his capture violated international law such that prosecution on some of the counts is precluded, and that the Mission and Annex facilities were not legally-operated federal facilities and thus fall outside the protection of federal law. The government opposes Al-Imam's motion. The Court held a hearing on the motion on February 15, 2019, and the issues are now ripe for the Court's resolution.

II. Legal Standard

A criminal defendant "may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." Fed. R. Crim. P. 12(b)(1). Pretrial motions may challenge "a defect in the indictment or information," as long as "the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits." Fed. R. Crim. P. 12(b)(3)(B). " 'Because a court's use[ ] [of] its supervisory power to dismiss an indictment ... directly encroaches upon the fundamental role of the grand jury,' dismissal is granted only in unusual circumstances." United States v. Ballestas, 795 F.3d 138, 148 (D.C. Cir. 2015) (quoting Whitehouse v. U.S. Dist. Court, 53 F.3d 1349, 1360 (1st Cir. 1995) ). An indictment "only need contain 'a plain, concise, and definite written statement of the essential facts constituting the offense charged,' " id. at 149, in order "to inform the defendant of the nature of the accusation against him," id. at 148-49 (quoting United States v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001) ) (internal quotation marks omitted). "When considering a motion to dismiss an indictment, a court assumes the truth of those factual allegations." Id. at 149.

III. Analysis

The Court begins with Al-Imam's contention that the federal laws he stands charged with violating do not apply extraterritorially, first recounting its analysis of the arguments in Abu Khatallah, which the parties repeat here, before moving to Al-Imam's critique that the Court's prior reasoning went astray. The Court will then tackle Al-Imam's arguments that his capture precludes the prosecution of certain counts, and that the purportedly unlawful operation of the Benghazi facilities bars the prosecution of other counts.

A. The Extraterritoriality of the Offenses Charged in Counts 1-2 and 4-17

Al-Imam advances extraterritoriality arguments identical to those considered and rejected by this Court in Abu Khatallah. Compare MTD at 11-25 with Mot. Dismiss for Lack of Extraterritorial Jurisdiction (ECF No. 91) at 4-21, United States v. Abu Khatallah, 14-cr-141. The government, for its part, responds just as it did in Abu Khatallah. Compare Opp. at 20-34 with Opp. Mot. Dismiss for Lack of Extraterritorial Jurisdiction, ECF No. 101, at 7-24, United States v. Abu Khatallah, 14-cr-141. Indeed, as both parties acknowledge, their submissions on these Counts are near-verbatim reproductions of the submissions in Abu Khatallah. Therefore, the Court reproduces its Abu Khatallah analysis here, though modified to address Al-Imam rather than Abu Khatallah and to exclude arguments appearing in Abu Khatallah's reply memorandum that Al-Imam does not advance here. United States v. Abu Khatallah, 151 F.Supp.3d 116, 123-38 (D.D.C. 2015) ; United States v. Abu Khatallah, 168 F.Supp.3d 210, 214 (D.D.C. 2016) (addressing § 1363 counts after supplemental briefing).

1. Generally Applicable Principles of Extraterritoriality

The Supreme Court has repeatedly-and quite recently-insisted that "[w]hen a statute gives no clear indication of an extraterritorial application, it has none." Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 133 S.Ct. 1659, 1664, 185 L.Ed.2d 671 (2013) (quoting Morrison v. Nat'l Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 2878, 177 L.Ed.2d 535 (2010) ). Phrased slightly differently, "there must be present the affirmative intention of the Congress clearly expressed." Id. (quoting Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 147, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957) ). "[C]ongressional silence" on extraterritoriality therefore "means no extraterritorial application," Morrison, 130 S.Ct. at 2881, as does a merely "plausible" showing of intended extraterritorial application, EEOC v. Arabian American Oil Co., 499 U.S. 244, 250, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (" Aramco"). Phrases like "clear indication" and "convincing indication," Small v. United States, 544 U.S. 385, 391, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005), suggest that the required quantum of proof is significantly more than a preponderance. And the burden of making the necessary affirmative showing is on the party seeking to apply a statute extraterritorially. Aramco, 499 U.S. at 250, 111 S.Ct. 1227. Importantly, the Supreme Court has instructed courts to "apply the presumption in all cases " in which an extraterritorial offense is alleged. Morrison, 130 S.Ct. at 2881 (emphasis added).

The presumption against extraterritoriality is a "canon of construction ... rather than a limit upon Congress's power to legislate." Morrison, 130 S.Ct. at 2877. The canon rests on a defeasible assumption about congressional intent-that "Congress ordinarily legislates with respect to domestic, not foreign matters." Id. This assumption may or may not be factually correct in individual cases. But the presumption is meant to relieve judges from having to "guess anew in each case" by "divining what Congress would have wanted if it had thought of the situation before the court." Id. at 2881. Congress is on notice that courts apply the presumption across the board, which ensures a "stable background against which Congress can legislate with predictable effects." Id. Regardless of what Congress actually intends, the predictable effect of not clearly authorizing extraterritorial application will be no extraterritorial application. Of course, Congress remains free to modify statutes that courts have construed not to apply abroad (as it has done before). Id. at 2883 n.8.

Aside from administrability and predictability concerns, the presumption against extraterritoriality is also rooted in ideas of institutional competence and the separation of powers. Its robust application "protect[s] against unintended clashes between our laws and those of other nations which could result in international discord." Kiobel, 133 S.Ct. at 1664 (quoting Aramco, 499 U.S. at 248, 111 S.Ct. 1227 ). Displacement of the presumption means that aliens can be sued (or prosecuted) and tried in American courts for acts committed in their home countries, even if their acts were perfectly lawful there. The political branches alone are equipped to make "such an important policy decision where the possibilities of international discord are so evident." Id. (quoting Benz, 353 U.S. at 147, 77 S.Ct. 699 ). The presumption against extraterritoriality therefore precludes judges from inferentially triggering such "significant foreign policy implications" in the absence of deliberate congressional choice. Id. at 1665. But whether this concern permeates any individual case is irrelevant: The "presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law." Morrison, 130 S.Ct. at 2877-78.

So strong is the presumption, the Supreme Court has said, that geographically unbounded terms like "every" and "any" fail to rebut it. Kiobel, 133 S.Ct. at 1665 ; Small, 544 U.S. at 388, 125 S.Ct. 1752 ; Foley Bros. v. Filardo, 336 U.S. 281, 287, 69 S.Ct. 575, 93 L.Ed. 680 (1949). Even statutory definitions of commerce that specifically refer to "foreign commerce" do not "definitely disclose an intention to give ... extraterritorial effect." Aramco, 499 U.S. at 251, 111 S.Ct. 1227. Perhaps most strikingly, Kiobel very recently held that the Alien Tort Statute ("ATS") "does not imply extraterritorial reach" even though it permits actions by "alien[s]" for "violation[s] of the law of nations." Kiobel, 133 S.Ct. at 1663, 1665. That was true even though one such violation (piracy) "typically occurs ... beyond the territorial jurisdiction of the United States." Id. at 1667. The two other paradigmatic law-of nations violations contemplated by the ATS-"violation of safe conducts" and "infringement of the rights of ambassadors," id. at 1666 -could easily occur abroad and are creatures of international relations. Yet they, too, fail to displace the presumption against extraterritoriality. Id.

The Supreme Court has slightly diluted the presumption's potency by conceding that it is "not ... a 'clear statement rule.' " Morrison, 130 S.Ct. at 2883. A statute need not say "this law applies abroad"; "[a]ssuredly context can be consulted as well." Id.; see also Small, 544 U.S. at 391, 125 S.Ct. 1752 (recognizing "statutory language, context, history, or purpose" as proper tools for rebutting the presumption); Foley, 336 U.S. at 286, 69 S.Ct. 575 (concluding that a statute's legislative history revealed a "concern with domestic labor conditions"). Any indication of congressional intent is very likely material, regardless of its source. Yet context, purpose, legislative history, and statutory structure are unavailing unless they amount to a "clear indication" of intended extraterritoriality. Kiobel, 133 S.Ct. at 1664. According to the Supreme Court, this sometimes-multifaceted inquiry is neither "complex" nor "unpredictable in application." Morrison, 130 S.Ct. at 2878. And the D.C. Circuit very recently explained that contextual evidence tending to displace the presumption must be traceable to the statutory text. See Validus Reinsurance, Ltd. v. United States, 786 F.3d 1039, 1047 (D.C. Cir. 2015) ("[C]ourts must find clear and independent textual support-rather than relying on mere inference-to justify the nature and extent of each statutory application abroad.") (quoting Keller Found./Case Found. v. Tracy, 696 F.3d 835, 845 (9th Cir. 2012) ).

2. Harmonizing the Apparent Civil/Criminal Divide

As detailed above, the modern Supreme Court has instructed lower courts to apply the presumption "in all cases." Morrison, 130 S.Ct. at 2881. Such insistence on across-the-board uniformity seems to foreclose doctrinal tests that would allow the presumption to be more easily rebutted in certain kinds of cases. Nonetheless, a nearly century-old chestnut of extraterritoriality doctrine- United States v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922) -sits uneasily with Aramco, Morrison, and Kiobel. In practice, Bowman requires a lesser evidentiary showing of congressional intent to permit the extraterritorial application of certain kinds of federal criminal statutes. Its application may well require judges to "guess anew in each case," Morrison, 130 S.Ct. at 2881, often under a shroud of empirical uncertainty. Yet the Supreme Court has not yet attempted to reconcile the stability-serving values undergirding recent civil decisions like Morrison and Kiobel with the reality that Bowman is "not easy to administer." Id. at 2879. Because Bowman remains binding on the lower courts, this Court must assume that satisfying Bowman is one way of "clear[ly] indicati[ng]" a federal statute's extraterritorial reach, id. at 2878 -even if Bowman itself requires no "affirmative" evidence of a deliberate congressional decision to permit overseas applications. Kiobel, 133 S.Ct. at 1664.

a. The Facts and Holding of United States v. Bowman

The defendants in Bowman had allegedly conspired to defraud the Emergency Fleet Corporation-all of whose stock was owned by the United States-on board a ship approaching Brazil. Bowman, 260 U.S. at 95, 43 S.Ct. 39. The crux of the indictment was that the defendants had made (and conspired to make) a "false or fraudulent claim" against a "corporation in which the United States of America is a stockholder." Id. at 96, 100 n.1, 43 S.Ct. 39. Neither party disputed that all relevant actions had occurred outside American soil. If Bowman had never been decided, faithful application of recent Supreme Court precedents might well dictate a finding of no extraterritoriality on these facts alone. For the mere statutory reference to "any corporation in which the United States of America is a stockholder," id. at 100 n.6, 43 S.Ct. 39, would not rebut the presumption any more than statutory language encompassing "every contract," "any court," "any person," or "any civil action." Foley Bros., 336 U.S. at 287, 69 S.Ct. 575 ; Small, 544 U.S. at 387, 125 S.Ct. 1752 ; Morrison, 130 S.Ct. at 2881 ; Kiobel, 133 S.Ct. at 1665.

The Bowman Court took a starkly different approach, however. It began its analysis by observing that "the necessary locus [of proscribed activity], when not specially defined, depends upon the purpose of Congress as evinced by the description and nature of the crime." Id. at 97, 43 S.Ct. 39. Bowman postulated two broad types of crimes for these purposes. First were "[c]rimes against private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson, embezzlement and frauds of all kinds." Id. at 98, 43 S.Ct. 39. These offenses principally "affect the peace and good order of the community," and so must seemingly be committed within the political community that they disturb. Id. If Congress intends to punish such crimes extraterritorially, "it is natural for [it] to say so in the statute, and failure to do so will negative the purpose of Congress in this regard." Id.

But a different rule of construction applies to "criminal statutes which are, as a class, not logically dependent on their locality for the Government's jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated." Id. For these offenses, "to limit their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home." Id. Congress "has not thought it necessary" to explicitly enable their overseas application, instead "allow[ing] it to be inferred from the nature of the offense." Id.

The Bowman Court held that the charged crime fell comfortably within this second category. The statute had been amended in 1918 to encompass false claims harmful to corporations in which the United States owned stock. Id. at 101, 43 S.Ct. 39. The Court found that this provision "was evidently intended to protect the Emergency Fleet Corporation," which was "expected to engage in, and did engage in, a most extensive ocean transportation business" that serviced "every great port of the world open during [World War I]." Id. at 101-02, 43 S.Ct. 39. Two key factors informed the Court's decision: that Congress had sought to stifle "frauds upon the Government," and-because of background assumptions about the Emergency Fleet Corporation's worldwide business-that those frauds were likely to occur "on the high seas and in foreign ports and beyond the land jurisdiction of the United States." Id.

Bowman also supplemented its holding (if only in dictum) with a list of six other federal crimes whose nature commanded an inference of extraterritorial application. Because Bowman has been entirely absent from the Supreme Court's modern extraterritoriality decisions, these six crimes are important data points for understanding Bowman's underlying rationale. The Court noted that all six appeared in a chapter of the U.S. Code entitled "Offenses against the operations of the Government," id. at 98-99, 43 S.Ct. 39 ; each crime had evidently been designed to forestall some tangible or intangible harm to the U.S. Government. In asserting that each of the following offenses would apply extraterritoriality, the Court also commented on the statutes' anticipated geographic reach:

(1) A consul's knowingly certifying a false invoice. "Clearly the locus of this crime as intended by Congress is in a foreign country...." Id. at 99, 43 S.Ct. 39.

(2) Forging or altering a ship's papers. "The natural inference from the character of the offense is that the sea would be a probable place for its commission." Id.

(3) Enticing desertions from the naval service. Congress must have "intend[ed] by this to include such enticing done aboard ship on the high seas or in a foreign port, where it would be most likely to be done." Id.

(4) Bribing an officer of the U.S. civil, military, or naval service to violate his duty or to aid in committing a fraud on the United States. The Court concluded that it would "hardly [be] reasonable to construe this not to include offenses" directed at consuls, ambassadors, and military officers "in a foreign country or on the high seas." Id.

(5) Defrauding the United States in the disposition of property captured as prize. "This would naturally often occur at sea, and Congress could not have meant to confine it to the land of the United States." Id.

(6) Stealing or embezzling property of the United States furnished or intended to be used for military or naval service. "It would hardly be reasonable to hold that" Congress did not intend to punish offenses against U.S. military property located "in foreign countries, in foreign ports or on the high seas." Id. at 100, 43 S.Ct. 39.

In sum, for statutes whose geographic reach is ambiguous, satisfying Bowman first requires proof that a criminal offense directly harms the U.S. Government. Bowman also suggested that the presumption against extraterritoriality cannot be rebutted inferentially unless the enacting Congress very likely envisioned, and can be assumed to have authorized, a considerable number of extraterritorial applications. Yet whether Bowman's preconditions are satisfied is hardly a mechanical inquiry. Bowman left open the key question of how many foreseeable extraterritorial applications are necessary to warrant the inference that Congress "clearly" intended to allow prosecutions for acts occurring overseas. Its treatment of two statutory examples suggested that the number of expected extraterritorial offenses must outweigh domestic ones-that the former must be "probable" or "most likely." Id. at 99, 43 S.Ct. 39. But Bowman's fifth example pointed toward a looser "locus" test for extraterritoriality-that the crime "would naturally often occur" abroad. Id. The D.C. Circuit's resolution of this issue in favor of the latter formulation must guide this Court's analysis of Al-Imam's extraterritoriality challenges.

b. The D.C. Circuit's Application of Bowman : United States v. Delgado-Garcia

Along with other lower courts, the D.C. Circuit has sought to reconcile modern extraterritoriality doctrine's across-the-board, rule-like rigor with the more flexible and individualized inquiry required in criminal cases by Bowman. Its reading of Bowman precludes two possible approaches to this case: (1) to proceed as if the Supreme Court has overruled Bowman sub silentio and apply only the restrictive test outlined in Aramco, Morrison, and Kiobel; or (2) to assume that federal crimes designed to prevent harm to the U.S. Government necessarily satisfy Bowman (and so apply extraterritorially) absent a clear indication to the contrary.

The defendants in United States v. Delgado-Garcia, 374 F.3d 1337, 1339 (D.C. Cir. 2004), were charged with (in the court's words) "conspiring to induce aliens illegally to enter the United States" and "attempting to bring illegal aliens into the United States," in violation of 8 U.S.C. § 1324(a). All relevant conduct occurred outside the United States. Id. The defendants moved to dismiss the indictment, claiming that § 1324(a) does not apply extraterritorially because the statute is silent on its geographic reach. The Delgado-Garcia court disagreed, citing "specific textual evidence" and "contextual factors" as affirmative evidence that Congress intended for § 1324(a) offenses to be prosecutable regardless of where they might occur. Id. at 1344-45. The court situated its analysis firmly within the framework established by Bowman, deeming it a "persuasive precedent" for the Government's position. See id. at 1346.

According to Delgado-Garcia, the generally worded statute at issue in Bowman applied abroad "because the Emergency Fleet Corporation ... 'was expected to engage in, and did engage in, a most extensive ocean transportation business.' " Delgado-Garcia, 374 F.3d at 1346 (emphasis added); see also id. ("Because of this expectation, the Court reasoned, many persons who commit the crime of defrauding a U.S. corporation would do so overseas, and therefore the statute had extraterritorial application." (emphasis added) ).

The Government's reading of Bowman echoes Judge Rogers's dissenting opinion in Delgado-Garcia. She understood Bowman to mean that when Congress "protect[s] the United States government from harm," it generally must be assumed to have done so "irrespective of [the harm's] origin." Id. at 1355 (Rogers, J., dissenting). For such crimes, in other words, "it is obvious that in declaring them to be crimes Congress intends to prohibit them everywhere." Id. at 1354. The majority rejected this line of reasoning, concluding that it "is for Congress, not this Court," to decide whether particular acts would "harm the United States government even if [they were] completed abroad." Id. at 1346 (majority opinion) (alteration in original) (quoting id. at 1355 (Rogers, J., dissenting) ). The Delgado-Garcia majority offered a different explanation of what it means for federal criminal offenses to be "not logically dependent on their locality"-that they "have many obvious extraterritorial applications." Id. at 1346-47.

Delgado-Garcia held that both § 1324(a) crimes charged in the indictment met this standard (and thus applied extraterritorially). After explaining that the statute satisfied Bowman's "harm" prong because it sought to protect the integrity of U.S. borders, id. at 1345, the court shifted to a lengthy discussion of Bowman's "locus" element. Reasoning purely from the text and structure of § 1324(a), the court found that the crimes of attempting to bring an unauthorized alien into the United States and conspiring to encourage or induce illegal immigration both "applie[d] to much extraterritorial conduct." Id. at 1347. First, because "[b]ringing' someone suggests ... physical proximity" to the person sought to be brought, "many [failed] attempts to bring someone into the United States will occur outside the United States." Id. And second, the court reasoned that it would be "much easier" to conspire to encourage or induce illegal immigration "outside the United States, in proximity to those who carry out the plot." Id. at 1348. The conspiracy provision therefore "contemplates application to much extraterritorial conduct." Id.

In this Circuit, then, Bowman is satisfied when (1) a federal criminal offense directly harms the U.S. Government, and (2) enough foreseeable overseas applications existed at the time of a statute's enactment (or most recent amendment) to warrant the inference that Congress both contemplated and authorized prosecutions for extraterritorial acts. Delgado-Garcia's "locus" inquiry specifically asks whether a statute "ha[s] many obvious extraterritorial applications," id. at 1347, or whether offenders "will often be outside the United States," id. As long as such a likelihood existed when the statute was passed-whether because of the nature of the offense (as in Delgado-Garcia ), contingent facts about the United States's presence abroad, or some combination thereof-courts may properly infer a congressional intent to permit extraterritorial uses. This process yields the necessary "clear indication of an extraterritorial application." Morrison, 130 S.Ct. at 2878. It is not enough, as the Government suggests, that a statute seek to protect U.S. interests that "lie, or may very well lie, outside the United States." Opp. Mot. Dismiss ("Opp."), ECF No. 53, at 20. Nor may judges attempt to divine "what Congress would have wanted if it had thought of the situation before the court." Morrison, 130 S.Ct. at 2881. With these principles in mind, the Court now turns to Al-Imam's individual statutory challenges.

3. Al-Imam's Statutory Challenges

Al-Imam contends that five of the statutes under which he is charged do not apply extraterritorially.

a. 18 U.S.C. § 1114 : Murder and Attempted Murder of Officers and Employees of the United States

Counts Four through Six charge Al-Imam with murder in violation of 18 U.S.C. § 1114 ; counts Seven through Nine charge him with attempted murder in violation of § 1114. That statute reads, in full:

Whoever kills or attempts to kill any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance, shall be punished-

(1) in the case of murder, as provided under section 1111 ;

(2) in the case of manslaughter, as provided under section 1112; or

(3) in the case of attempted murder or manslaughter, as provided in section 1113.

Section 1114 does not explicitly reference extraterritorial application, so such prosecutions must be justified by Bowman, if at all. The Court does not doubt-nor does Al-Imam contest-that § 1114 targets a form of harm suffered directly by the U.S. Government. Under Delgado-Garcia, then, just one question remains: Did § 1114"have many obvious extraterritorial applications" when it was enacted (or most recently amended)?

Cautious of its institutional limitations in resolving an issue of this nature, the Court answers affirmatively. The parties have not informed the Court as to when § 1114 was either originally enacted or last amended. That law appears to have remained in its current form since being amended as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 727(a), 110 Stat. 1214. Nor have the parties provided concrete information on the number of U.S. officers and employees working and residing abroad, either in 1996 or today. The Government asserts (though without substantiation) that "[t]he United States government has over one hundred thousand officers and employees stationed abroad." Opp. at 21. Al-Imam has not questioned this estimate. Because a purely territorial statute cannot become extraterritorial as a result of changing conditions-only a deliberate congressional choice can rebut the presumption-present-day figures matter only insofar as they indirectly reflect what conditions either obtained when a statute was passed or were understood to be likely to exist in the future.

Here, the Court is satisfied that § 1114"ha[d] many obvious extraterritorial applications" when the law was last amended in 1996-enough to have put Congress on notice of the issue of extraterritoriality and to permit an inference under Bowman that the law was intended to reach conduct undertaken outside the United States. It is widely known that then, as now, large numbers of U.S. diplomats and Foreign Service Officers, military servicemembers, members of the intelligence community, and other government personnel served the United States's interests abroad. Executive and legislative officials (and their staff) also frequently traveled-and obviously still do-outside the United States in the course of performing their official duties. See also United States v. Al Kassar, 660 F.3d 108, 118 (2d Cir. 2011) ("[A] significant number of [U.S.] employees perform their duties outside U.S. territory."). Such U.S. employees and officials could obviously be killed while engaging in or on account of performing their official duties. Under Delgado-Garcia, this is enough to conclude that Congress authorized extraterritorial prosecutions under § 1114. Al-Imam may well be correct that "nothing in the statute suggests an international focus," MTD at 13, whereas the Delgado-Garcia court found the relevant statute to be "fundamentally international ... in focus and effect," 374 F.3d at 1345. Yet Bowman still allows an inference that Congress intended to authorize overseas prosecutions for crimes enacted in the wake of purely domestic incidents. Under Delgado-Garcia, a criminal offense whose most natural or obvious applications are domestic can still be prosecuted abroad if the law had "many obvious extraterritorial applications" at the time of enactment. Id. at 1346-47.

Al-Imam nonetheless argues that a comparison between § 1114 and § 1116, which criminalizes the murder of internationally protected persons, reveals that Congress did not intend for § 1114 to apply extraterritorially. MTD at 12-13. Both statutes were amended in 1996; whereas § 1116 broadened the "internationally protected person" category to reach "any other representative, officer, employee, or agent of the United States Government," § 1114 remained generally worded and geographically ambiguous. Id. at 12. As a result, Al-Imam claims, § 1116's amendment "would have been unnecessary if Congress had intended § 1114 to apply to the extraterritorial killing of all [U.S.] officers and employees." Id. at 5-6. The Court is not persuaded. To qualify as an internationally protected person, one must be, "at the time and place concerned[,] ... entitled pursuant to international law to special protection against attack." 18 U.S.C. § 1116(b)(4)(B). Such an element is missing from § 1114. Section 1116"appl[ies] to a relatively small subset of the broad class of United States employees and officers covered by Section 1114." United States v. Bin Laden, 92 F.Supp.2d 189, 203 (S.D.N.Y. 2000). Such modest overlap between the two statutes is not enough to upend the method of analysis called for by Delgado-Garcia.

Other statutes not cited by Al-Imam lend some credence to his position that "when Congress intend[s] a homicide statute to apply extraterritorially, it specifically state[s] so." MTD at 12. One of them, 18 U.S.C. § 1751, criminalizes (among other things) assassinating the President, Vice President, or President-elect. This statute would seem to satisfy Bowman rather easily. Yet it specifically clarifies that "[t]here is extraterritorial jurisdiction over the conduct prohibited by this section." Id. § 1751(k). A similar law prohibiting the killing of members of Congress, cabinet heads, Supreme Court Justices, and directors of specified intelligence agencies also explicitly permits prosecutions for extraterritorial conduct. 18 U.S.C. § 351(i). On the other hand, a number of federal criminal statutes designed to prevent harm to the Government that would frequently occur abroad are expressly limited to domestic offenses. Congress apparently understood that Bowman would otherwise apply in these instances, but for some reason chose to limit its operation. Such criminal offenses include discriminating against persons wearing the uniform of the armed forces, 18 U.S.C. § 244 ; commencing or facilitating an expedition against a friendly nation, 18 U.S.C. § 960 ; and enlisting "to serve in armed hostility against the United States," 18 U.S.C. § 2390. The Court therefore declines to demand clear statements of extraterritorial application in this case-essentially, to render Bowman toothless-merely because some criminal statutes have not relied on Bowman to signal their geographic reach.

The D.C. Circuit's recent refusal to permit a Bivens cause of action to remedy harm inflicted extraterritorially does not change the Court's analysis. In Meshal v. Higgenbotham, 804 F.3d 417 (D.C. Cir. 2015), the D.C. Circuit offered the following hypothetical in declining to recognize the asserted implied private right of action: "If Congress had enacted a general tort cause of action applicable to Fourth Amendment violations committed by federal officers (a statutory Bivens, so to speak), that cause of action would not apply to torts committed by federal officers abroad absent sufficient indication that Congress meant the statute to apply extraterritorially." Id. at 425 (citing Morrison, 130 S.Ct. at 2877 ). That statement fully coheres with this Court's analysis. Bowman and Delgado-Garcia continue to govern whether the presumption has been rebutted for criminal statutes. Under current law, satisfying Bowman furnishes a "sufficient indication that Congress meant the statute to apply extraterritorially." Id. Nor is this Court the first to hold that § 1114 reaches abroad under Bowman. See Al Kassar, 660 F.3d at 118 ; Bin Laden, 92 F.Supp.2d at 202 ; United States v. Benitez, 741 F.2d 1312, 1317 (11th Cir. 1984).

For the foregoing reasons, the Court will deny Al-Imam's motion as to Counts Four through Nine, which charge him with violating 18 U.S.C. § 1114.

b. 18 U.S.C. § 930(c) : Killing a Person in the Court of an Attack on a Federal Facility Involving the Use of a Firearm or Other Dangerous Weapon

Counts Ten through Thirteen charge Al-Imam with violating 18 U.S.C. § 930(c). Section 930 provides, in relevant part:

(c) A person who kills any person ... in the course of an attack on a Federal facility involving the use of a firearm or other dangerous weapon, or attempts or conspires to do such an act, shall be punished as provided [elsewhere].

* * *

(g) As used in this section:

(1) The term "Federal facility" means a building or part thereof owned or leased by the Federal Government, where Federal employees are regularly present for the purpose of performing their official duties.

Because § 930 is silent on its geographic reach, Bowman must again guide the Court's extraterritoriality analysis. Bowman's "harm" test is clearly satisfied here-the act of killing someone in the course of an attack on a federal facility directly harms the U.S. Government. The remaining question is whether § 930(c) offenses are "not logically dependent on their locality," meaning that the provision had "many obvious extraterritorial applications" when it was enacted (or most recently amended). Delgado-Garcia, 374 F.3d at 1346-47.

Al-Imam points out that § 930(c) was added to 18 U.S.C. § 930 as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 60014, 108 Stat. 1796. He argues that because some other provisions of this omnibus legislation expressly permitted prosecutions for conduct abroad, Congress cannot be said to have clearly authorized the extraterritorial use of § 930(c). MTD at 15. Al-Imam further claims that the "obvious focus" of this statute is "Federal facilities within U.S. territory," id. at 16, for " § 930(c) was passed as part of a series of laws targeting murder committed by escaped prisoners, murder of state or local officials assisting federal law enforcement officials, the protection of court officers and jurors, and the retaliatory killings of witnesses, victims, and informants." Reply in Support of Mot. Dismiss ("Reply"), ECF No. 54, at 9.

Yet a criminal statute whose legislative history and neighboring provisions are bereft of foreign references may still apply extraterritorially if Bowman's "harm" and "locus" elements (as understood by Delgado-Garcia ) are both satisfied. Again, the Government has not provided a concrete figure for or independently substantiated how many federal facilities exist outside the United States. But it has assured the Court that they number in the "hundreds." Opp. at 25. Al-Imam does not contest this approximation. Cf. Bin Laden, 92 F.Supp.2d at 201-02 (observing that "a significant number of Federal facilities are located outside the United States"). The Court notes that embassies, consulates, and other diplomatic missions would seem to be fairly encompassed within § 930(g)(1)'s definition of "Federal facility," as would the component structures of military bases. Such structures were no doubt similarly prevalent when § 930(c) was enacted in 1994. The Government also asserts that "many [Federal facilities abroad] are in more dangerous areas than Federal facilities within the United States," which presumably alerted Congress to the likelihood of attacks on overseas facilities for reasons apart from those facilities' sheer numerosity. Opp. at 25. The Court hesitates to impute an ignorance of these conditions to the enacting Congress. Accordingly, the Court joins the Southern District of New York in concluding that § 930(c) applies extraterritorially under Bowman, because that law had many foreseeable extraterritorial applications at the time of enactment. See Bin Laden, 92 F.Supp.2d at 201-02. The Court will therefore not dismiss Counts Ten through Thirteen for lack of extraterritoriality.

c. 18 U.S.C. § 844(f)(1) & (3) : Maliciously Damaging and Destroying U.S. Property by Means of Fire and an Explosive Causing Death

Counts Fourteen and Fifteen charge Al-Imam with violating 18 U.S.C. §§ 844(f)(1) & (3). Sections 844(f)(1) and (3) provide:

(f)(1) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof, or any institution or organization receiving Federal financial assistance, shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.

* * *

(3) Whoever engages in conduct prohibited by this subsection, and as a result of such conduct directly or proximately causes the death of any person, including any public safety officer performing [his] duties, shall be subject to the death penalty, or imprisoned for not less than 20 years or for life, fined under this title, or both.

As with § 1114 and § 930(c), § 844(f) contains no provision explicitly authorizing extraterritorial use. The Court will therefore analyze § 844(f)'s geographic reach under the Bowman framework. Damaging or destroying U.S. property unquestionably harms the U.S. Government. So again, the remaining issue is whether § 844(f) had "many obvious extraterritorial applications" at the time of its enactment or most recent amendment. Delgado-Garcia, 374 F.3d at 1347.

The Court answers in the affirmative. Statutory "Federal facilities"-buildings owned or leased by the U.S. Government, where federal employees are regularly present for the purpose of performing their official duties-are but a subset of "personal or real property in whole or in part owned or possessed by, or leased to, the United States, or any department or agency thereof." 18 U.S.C. § 844(f)(1). The enacting Congress cannot have envisioned considerably fewer overseas applications of a more expansive category of crimes. Because the Court has already concluded that Bowman permits extraterritorial prosecutions under § 930(c), the Government may necessarily proceed under § 844(f), as well. Again, the Southern District of New York has held likewise. See Bin Laden, 92 F.Supp.2d at 198.

Al-Imam insists that § 844(f)"does not have an international focus." MTD at 16. For all the Court can tell, he is correct. Al-Imam explains that § 844(f) was "indisputably passed to expand federal authority over bombings of domestic properties during the Vietnam War." Reply at 10. The Government offers no reason to doubt this account of the historical forces driving § 844's passage. But Al-Imam misunderstands the import of Delgado-Garcia's application of Bowman. To be sure, Delgado-Garcia characterized § 1324(a)'s border-control provisions as "fundamentally international ... in focus and effect." Delgado-Garcia, 374 F.3d at 1345. Delgado-Garcia could have interpreted Bowman to mean that an offense is not logically dependent on its locality when it will likely be committed overseas more often than not, just as the court believed that § 1324(a) crimes would be. Yet the D.C. Circuit articulated a more permissive standard for satisfying Bowman's "locus" element: whether a criminal statute "ha[s] many obvious extraterritorial applications." Id. at 1347. A prohibition can have many obvious extraterritorial applications even if it is most readily and naturally deployed domestically.

Nor is it material that § 844(f) prohibits the damaging or destruction of "any institution or organization receiving Federal financial assistance," the great majority of which are presumably located domestically. Section 844 clearly targets a vast range of destructive behavior undertaken within the territorial United States. But its independently operative provisions that protect U.S. property could foreseeably be applied abroad in a great number of situations; this must have been known when the statute was modified in 2002, as well. As a result, the Court will deny Al-Imam's motion as to Counts Fourteen and Fifteen.

d. 18 U.S.C. § 2339A : Providing Material Support and Resources to Terrorists Resulting in Death (and Conspiring to Do the Same)

Count One charges Al-Imam with conspiring to violate 18 U.S.C. § 2339A ("the material-support statute"), and Count Two charges him with a substantive violation of that statute. As with each of the offenses discussed above, § 2339A does not explicitly authorize extraterritorial prosecutions. Section 2339A provides, in relevant part (with only potentially applicable predicate offenses listed below):

(a) Offense. Whoever provides material support or resources or conceals or disguises the nature, location, source, or ownership of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, a violation of section ... 844(f) ..., 930(c), ... 1114, 1116, ... [or] 1363, ... or in preparation for, or in carrying out, the concealment of an escape from the commission of any such violation, or attempts or conspires to do such an act, shall be fined under this title, imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life.

Section 1116 (corresponding to Count Three) explicitly authorizes extraterritorial prosecutions; the other four offenses (corresponding to Counts Four through Seventeen) do not. Al-Imam therefore moves to dismiss Counts One and Two insofar as they charge him with providing (or conspiring to provide) material support for violations of §§ 844(f), 930(c), 1114, and 1363.

Al-Imam and the Government agree that § 2339A is an ancillary crime that applies extraterritorially to the extent that an associated substantive offense does. Deciding whether to dismiss an ancillary offense for lack of extraterritoriality requires no new analysis when the geographic reach of any predicate crimes has already been determined. The Court therefore incorporates by reference its earlier holdings and denies Al-Imam's motion as to Counts One and Two. The Government may continue to proceed under § 2339A insofar as it charges Al-Imam with providing (or conspiring to provide) material support for a violation of §§ 844(f), 930(c), 1114, or 1116.

e. 18 U.S.C. § 1363 : Maliciously Destroying or Injuring Property Within the Special Maritime and Territorial Jurisdiction of the United States

In the Court's initial motion-to-dismiss ruling in Abu Khatallah, the Court reserved judgment on the extraterritorial application of § 1363 issue and ordered supplemental briefing. After reviewing the parties' submissions, the Court concluded that the alleged conduct, if proved, occurred within the special maritime and territorial jurisdiction of the United States ("SMTJ") as defined in 18 U.S.C. § 7(9) and therefore found that it had jurisdiction over the § 1363 charges. The following analysis is cribbed, with slight modifications to address Al-Imam's reply arguments, from the Court's opinion in Abu Khatallah, 168 F.Supp.3d at 211.

Congress defined two distinct crimes in 18 U.S.C. § 1363. The first entails "willfully and maliciously destroy[ing] or injur[ing] any structure, conveyance, or other real or personal property, or attempt[ing] or conspir[ing] to do such an act" within the SMTJ. A person who commits that crime may be imprisoned for up to five years. The second involves the same conduct where the targeted "building [is] a dwelling" or where the act results in "the life of any person be[ing] placed in jeopardy." A person who commits that crime may be imprisoned for up to twenty years.

Al-Imam disagrees with this analysis of the statute. As he sees it, "the enhanced form of § 1363 involves 'jeopardy' to the life of a person, without thereby being transformed into a crime against a person." Reply at 19. Rather, Al-Imam contends that § 1363 defines a single property crime concerned with buildings or property within special maritime and territorial jurisdiction. This position is untenable, however, in light of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). There, the Court held that any fact that "expose[s] the defendant to a greater punishment than that authorized by the jury's guilty verdict" is an "element" that must be submitted to a jury and proved beyond a reasonable doubt. Id. at 494, 120 S.Ct. 2348. The endangerment of a person's life is a "fact that, by law, increases the penalty" under § 1363, and is therefore "an 'element' [of a crime] that must be submitted to the jury and found beyond a reasonable doubt." Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013). The government recognizes as much. The crime with which Al-Imam is charged, therefore, has the following elements: (1) willfully and maliciously destroying or injuring any structure, conveyance, or other real or personal property, or attempting or conspiring to do such an act, (2) within the SMTJ, (3) where the destroyed or injured building is a dwelling or where the act results in the life of any person being placed in jeopardy.

As a threshold matter, the Court finds that the government is not legally precluded from presenting evidence under 18 U.S.C. § 7(9) in support of the second element. In other words, to demonstrate that the conduct at issue occurred within the SMTJ, the government may show that, "[w]ith respect to offenses committed by or against a national of the United States," 18 U.S.C. § 7(9), the Special Mission and Annex constituted "the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign states," id. § 9(A), or that they were "residences in foreign States," id. § 9(B).

To prove that the offense was "committed ... against a national of the United States" under § 7(9), the government seeks to show, inter alia , that Al-Imam "placed the lives of United States nationals in danger" as a result of his conduct. Indictment Count Sixteen ¶ 2; id. Count Seventeen ¶ 2. The question for the Court, then, is whether the crimes charged in Counts Sixteen and Seventeen constitute offenses "committed ... against a national of the United States." 18 U.S.C. § 7(9). The Court concludes that they do. Where the government seeks to satisfy its burden as to an element of a crime by showing that a person's life was endangered, and that person is a U.S. national, the offense is necessarily one "committed ... against a national of the United States." 18 U.S.C. § 7(9). Prosecution under § 1363-for an offense "committed ... against a national of the United States"-is therefore appropriate where the government alleges and seeks to prove that, in the course of maliciously destroying and injuring dwellings and property within the SMTJ, a defendant placed the lives of U.S. nationals in danger.

Al-Imam's objections on this point are unavailing. In his view, he has not been charged with committing a crime against a U.S. national-or any person, for that matter-because § 1363 simply defines a property crime that can be committed only ..., if there has been damage, or the intent to damage, a building," and which has the "unambiguous statutory purpose" of protecting "[b]uildings or property within special maritime and territorial jurisdiction." Def's Suppl. Br., Abu Khatallah, 14-cr-141 ("Abu Khatallah's Suppl. Br."), ECF No. 141, at 10. Yet the government has charged Al-Imam with a crime that includes as one of its elements the endangerment of human life and that carries a maximum penalty fifteen years greater than when no life is placed in jeopardy. That crime is most assuredly concerned with protecting people, not just buildings or property.

In addition, Al-Imam claims, "[p]lacing a life in jeopardy is not an offense against a person under federal law. The word 'offense' necessarily means a chargeable offense under U.S. federal law; if an 'offense' against a U.S. national could be any conceivable offense-criminal or otherwise- § 7(9) would be rendered meaningless." Id. at 11. Al-Imam is surely correct that the word "offense" refers to a chargeable offense under U.S. federal law, and that an "offense against a national of the United States" cannot mean any conceivable offense. But this argument misses the mark. The government does not contend-and this Court does not hold-that "[p]lacing a life in jeopardy is," on its own, "an offense against a person under federal law." Id. Nor does the Court hold that any criminal act that results in harm or the risk of harm to a U.S. national constitutes an "offense against a national of the United States." Rather, the Court concludes that when placing a life in jeopardy satisfies an element of a crime with which a person is charged, the charged offense is necessarily one "committed ... against a national of the United States." 18 U.S.C. § 7(9).

Lastly, Al-Imam argues that when Congress placed within the SMTJ "offenses committed ... against a national of the United States," id., it meant to import the common-law meaning of the term "crimes against the person," which "include only those offenses that, by their nature, are likely to involve the intentional use or threat of physical force against another person," Abu Khatallah's Suppl. Br. at 11-12 (emphasis added) (citing United States v. Trejo-Galvan, 304 F.3d 406 (5th Cir. 2002) (holding that the misdemeanor of driving under the influence of alcohol did not constitute a "crime against the person" under the common-law definition of that term) ). Although Congress may "intend[ ] to incorporate the well-settled meaning of the common-law terms it uses," United States v. Castleman, 572 U.S. 157, 134 S.Ct. 1405, 1410, 188 L.Ed.2d 426 (2014) (quoting Sekhar v. United States, 570 U.S. 729, 133 S.Ct. 2720, 2724, 186 L.Ed.2d 794 (2013) ), Congress has not used such a term here. Instead, it spoke of "offenses committed by or against a national of the United States," 18 U.S.C. § 7(9) -broad language that encompasses crimes involving U.S. nationals, either as perpetrators or victims.

Al-Imam counters that this interpretation leads to "the absurd conclusion that ... the government would have jurisdiction to prosecute ... even when the perpetrator was not aware that a U.S. person was present and a life could be endangered." Abu Khatallah's Suppl. Br. at 12. How can it be, Al-Imam asks, that "[w]hether a building is within special territorial jurisdiction" is "wholly contingent upon the arbitrary presence of a U.S. person and the degree of risk posed to that person at the time of the injury to the building"? Id. But such a result is far from absurd. The federal Hostage Taking Act, for example, prohibits (in part) seizing or detaining a person anywhere in the world for the purpose of compelling a governmental organization to take or not take some action. The Act "authoriz[es] assertion of U.S. jurisdiction where 'the offender or the person seized or detained is a national of the United States.' " United States v. Yunis, 924 F.2d 1086, 1090 (D.C. Cir. 1991) (quoting 18 U.S.C. § 1203(b)(1)(A) ); see also id. (finding it sufficient that "two of the passengers on Flight 402 were U.S. citizens ") (emphasis added). In such an instance, the victim's U.S. "citizenship [or status as a U.S. national] is an element of the offense that the government ha[s] to prove beyond a reasonable doubt." United States v. Clarke, 767 F.Supp.2d 12, 64 (D.D.C. 2011), aff'd sub nom. United States v. Straker, 800 F.3d 570 (D.C. Cir. 2015). The offender's knowledge of the victim's nationality is irrelevant. See Yunis, 924 F.2d at 1096. Similarly, federal law prohibiting destruction of aircraft expressly provides for jurisdiction when, inter alia , "a national of the United States was on board, or would have been on board, the aircraft." 18 U.S.C. § 32(b). Federal jurisdiction in that scenario may indeed be "wholly contingent upon the arbitrary presence of a U.S. person," Abu Khatallah's Suppl. Br. at 12, a reflection of Congress's intent to "confer[ ] jurisdiction based on the characteristics of the victim regardless of the offender's knowledge thereof," Opp. at 33.

This understanding is consistent with the well-established principle that courts need not infer an unwritten mens rea element with respect to factual circumstances that are "sufficient to confer jurisdiction on the federal courts." United States v. Feola, 420 U.S. 671, 676 n.9, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). In Feol