United States v. Ali Ali

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 19, 2012 Decided June 11, 2013

No. 12-3056

UNITED STATES OF AMERICA,

APPELLANT

v.

ALI MOHAMED ALI, ALSO KNOWN AS AHMED ALI ADAN, ALSO

KNOWN AS ISMAIL ALI,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cr-00106-1)

David B. Goodhand, Assistant U.S. Attorney, argued the

cause for appellant. With him on the briefs were Ronald C.

Machen, Jr., U.S. Attorney, and Elizabeth Trosman, Brenda

J. Johnson, and Elizabeth Gabriel, Assistant U.S. Attorneys.

Peter S. Smith, Assistant U.S. Attorney, entered an

appearance.

Brian C. Brook argued the cause for appellee. With him

on the brief were Matthew J. Peed and Timothy R. Clinton.

Before: BROWN, Circuit Judge, and EDWARDS and

SILBERMAN, Senior Circuit Judges.

2

BROWN, Circuit Judge: Ali Mohamed Ali, a Somali

national, helped negotiate the ransom of a merchant vessel

and its crew after they were captured by marauders in the

Gulf of Aden. Though he claims merely to have defused a

tense situation, the government believes he was in cahoots

with these brigands from the very start. Ali eventually made

his way to the United States, where he was arrested and

indicted for conspiring to commit and aiding and abetting two

offenses: piracy on the high seas and hostage taking.

The government says Ali is a pirate; he protests that he is

not. Though a trial will determine whether he is in fact a

pirate, the question before us is whether the government’s

allegations are legally sufficient. And the answer to that

question is complicated by a factor the district court deemed

critical: Ali’s alleged involvement was limited to acts he

committed on land and in territorial waters—not upon the

high seas. Thus, the district court restricted the charge of

aiding and abetting piracy to his conduct on the high seas and

dismissed the charge of conspiracy to commit piracy.

Eventually, the district court also dismissed the hostage taking

charges, concluding that prosecuting him for his acts abroad

would violate his right to due process. On appeal, we affirm

dismissal of the charge of conspiracy to commit piracy. We

reverse, however, the district court’s dismissal of the hostage

taking charges, as well as its decision to limit the aiding and

abetting piracy charge.

I. BACKGROUND

A. Modern Piracy

Mention “pirates” to most Americans and you are more

likely to evoke Johnny Depp’s droll depiction of Captain Jack

Sparrow than concern about the international scourge of

3

piracy that long ago led most civilized states to declare such

marauders the enemy of all mankind. In unstable parts of the

world, piracy is serious business, and these troubled waters

have seen a resurgence in pirate attacks, both successful and

attempted. See, e.g., INT’L MAR. ORG., MSC.4/ CIRC.180,

REPORTS ON ACTS OF PIRACY AND ARMED ROBBERY AGAINST

SHIPS: ANNUAL REPORT – 2011, at 2 (2012); INT’L MAR.

ORG., MSC.4/CIRC.169, REPORTS ON ACTS OF PIRACY AND

ARMED ROBBERY AGAINST SHIPS: ANNUAL REPORT – 2010, at

2 (2011). Pirate attacks have become increasingly daring, as

well as commonplace, with pirates targeting large commercial

vessels in transit, hijacking these ships, and ransoming the

crews. See W. Michael Reisman & Bradley T. Tennis,

Combating Piracy in East Africa, 35 YALE J. INT’L. L.

ONLINE 14, 16–18 (2009). These predatory activities have

proven especially lucrative in the Gulf of Aden (situated

between the Arabian Peninsula and the Horn of Africa and

bounded by a long stretch of Somalia’s coast), where pirates

can exploit a key trade route undeterred by Somalia’s unstable

government. See Milena Sterio, The Somali Piracy Problem:

A Global Puzzle Necessitating A Global Solution, 59 AM. U.

L. REV. 1449, 1450–51 (2010).

B. Ali’s Offense and Prosecution 1

Ali is a member of Somalia’s Warsengeli clan, 2 which,

together with the Majertein clan, plotted the capture of the

1

The facts are undisputed for the purpose of this appeal, which

concerns only the legal sufficiency of the government’s case. See

United States v. Lattimore, 215 F.2d 847, 849, 851 (D.C. Cir.

1954).

2

According to a previous government filing, Ali’s origins are

not entirely certain, since he has represented himself on prior

occasions sometimes as a Somali national and at other times as a

4

CEC Future, a Danish-owned merchant ship that flew a

Bahamian flag and carried cargo owned by a U.S.

corporation. On November 7, 2008, while the CEC Future

was traveling in the Gulf of Aden on the “high seas”—i.e.,

outside any nation’s territorial waters, RESTATEMENT (THIRD)

OF FOREIGN RELATIONS LAW § 521 cmt. a (1987)—Ali’s

compatriots launched their attack. Wielding AK-47s and a

rocket-propelled grenade, the raiders fired warning shots,

boarded the ship, and seized the crew. They then forced

crewmembers at gunpoint to reroute the ship to Point Ras

Binna, off the coast of Somalia, where, on November 9, Ali

came aboard and assumed the role of interpreter. The ship

traveled that same day to Eyl, a Somali port, and remained at

anchor there until it was ransomed the following January.

Except for a brief period of “minutes” during which the

CEC Future entered the high seas, the ship traversed

exclusively territorial waters while Ali was aboard. Ali

promptly began negotiating with the owners of the CEC

Future, starting with an initial demand of $7 million for the

release of the ship, its crew, and its cargo. Discussions

continued into January 2009, when Ali and the CEC Future’s

owners agreed to a $1.7 million ransom. As payment for his

assistance, Ali also demanded $100,000 (a figure he later

reduced to $75,000) be placed in a personal bank account. On

January 14, the pirates received the agreed-upon $1.7 million,

and two days later Ali and his cohorts left the ship. Ali’s share

amounted to $16,500—one percent of the total ransom less

expenses. He later received his separate $75,000 payment via

wire transfer to the account he had previously specified.

Yemeni national. See Gov’t Mem. & Proffer Supp. Pretrial

Detention 5–6.

5

As it happens, “pirate hostage negotiator” is not the only

line on Ali’s resume. In June 2010, he was appointed Director

General of the Ministry of Education for the Republic of

Somaliland, a self-proclaimed sovereign state within Somalia.

United States v. Ali (“Ali I”), 870 F. Supp. 2d 10, 17 (D.D.C.

2012). When he received an email in March 2011 inviting

him to attend an education conference in Raleigh, North

Carolina, he agreed. Id. Little did he know it was all an

elaborate ruse. For some time, federal prosecutors had been

busy building a case against Ali, charging him via criminal

complaint and later obtaining a formal indictment. When Ali

landed at Dulles International Airport on April 20, 2011, to

attend the sham conference, he was promptly arrested. Id.

A grand jury issued a four-count superseding indictment

against Ali, charging him first with conspiracy to commit

piracy under the law of nations, in violation of 18 U.S.C.

§ 371, which makes it a crime for “two or more persons” to

“conspire . . . to commit any offense against the United

States.” Invoking aiding and abetting liability under 18 U.S.C.

§ 2, Count Two charged Ali with committing piracy under the

law of nations, in violation of 18 U.S.C. § 1651, which

provides, “Whoever, on the high seas, commits the crime of

piracy as defined by the law of nations, and is afterwards

brought into or found in the United States, shall be

imprisoned for life.” Counts Three and Four analogously

charged Ali with conspiracy to commit hostage taking and

aiding and abetting hostage taking, in violation of 18 U.S.C.

§§ 1203 and 2. The hostage taking statute prescribes criminal

penalties for

whoever, whether inside or outside the United

States, seizes or detains and threatens to kill, to

injure, or to continue to detain another person

in order to compel a third person or a

6

governmental organization to do or abstain

from doing any act as an explicit or implicit

condition for the release of the person

detained, or attempts or conspires to do so.

Id. § 1203(a).

Ali filed a motion to dismiss the charges as legally

defective, meeting with partial success. See United States v.

Ali (“Ali II”), 885 F. Supp. 2d 17, 45–46 (D.D.C. 2012).

Beginning with the premise that the definition of piracy under

international law does not encompass conspiratorial liability,

the district court dismissed Count One in full, concluding

§ 1651, which defines piracy in terms of “the law of nations,”

could not ground a conspiracy charge. See id. at 33. The court

similarly refused to interpret § 371, the federal conspiracy

statute, as applying to piracy under the law of nations. So

read, the court said, the statute would contravene international

law in a way Congress never intended. See id. at 33–34. As

for Count Two, the court reasoned piracy under § 1651 and

international law only concerns acts committed on the high

seas and consequently limited Count Two to acts of aiding

and abetting Ali committed while he was on the high seas. See

id. at 32. Finally, the district court declined to dismiss Counts

Three and Four, ruling that Congress intended whatever

conflict exists between international law and extraterritorial

application of § 1203, id. at 35, and that prosecution for

extraterritorial acts of hostage taking satisfied the notice

requirements of due process because Ali’s piracy offenses

already subjected him to the universal jurisdiction of the

United States, id. at 44–45.

The district court reconsidered Counts Three and Four,

however, after learning that the government had no “specific

evidence” Ali had facilitated any acts of piracy while outside

7

territorial waters, and that the CEC Future proceeded on the

high seas only for a matter of minutes while Ali was aboard.

See United States v. Ali (“Ali III”), 885 F. Supp. 2d 55, 58

(D.D.C. 2012). Due process, the court said, is satisfied only if

Ali had some reasonable expectation he could be haled into an

American court. So long as the government could establish

that he had committed piracy on the high seas—a crime over

which all nations may exercise jurisdiction—this expectation

was met. But because Ali’s criminal conduct took place in

territorial waters, he had no notice his actions subjected him

to prosecution in the United States for hostage taking. Thus,

in light of the government’s revelation that it could not show

Ali’s offenses occurred on the high seas, due process

precluded exercising jurisdiction over Counts Three and Four.

Id. at 62.

The government now challenges the district court’s

dismissal of Counts One, Three, and Four, as well as

limitation of Count Two. We have jurisdiction over this

interlocutory appeal because the government challenges an

“order of a district court dismissing an indictment . . . as to

any one or more counts.” 18 U.S.C. § 3731.

II. THE PIRACY CHARGES

In most cases, the criminal law of the United States does

not reach crimes committed by foreign nationals in foreign

locations against foreign interests. Two judicial presumptions

promote this outcome. The first is the presumption against the

extraterritorial effect of statutes: “When a statute gives no

clear indication of an extraterritorial application, it has none.”

Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869, 2878

(2010). The second is the judicial presumption that “an act of

Congress ought never to be construed to violate the law of

nations if any other possible construction remains,” Murray v.

8

Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118

(1804)—the so-called Charming Betsy canon. Because

international law itself limits a state’s authority to apply its

laws beyond its borders, see RESTATEMENT (THIRD) OF

FOREIGN RELATIONS LAW §§ 402–03, Charming Betsy

operates alongside the presumption against extraterritorial

effect to check the exercise of U.S. criminal jurisdiction.

Neither presumption imposes a substantive limit on

Congress’s legislative authority, but they do constrain judicial

inquiry into a statute’s scope.

Piracy, however, is no ordinary offense. The federal

piracy statute clearly applies extraterritorially to “[w]hoever,

on the high seas, commits the crime of piracy as defined by

the law of nations,” even though that person is only

“afterwards brought into or found in the United States.” 18

U.S.C. § 1651. Likewise, through the principle of universal

jurisdiction, international law permits states to “define and

prescribe punishment for certain offenses recognized by the

community of nations as of universal concern.”

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 404;

see United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir.

1991). And of all such universal crimes, piracy is the oldest

and most widely acknowledged. See, e.g., Kenneth C.

Randall, Universal Jurisdiction Under International Law, 66

TEX. L. REV. 785, 791 (1988). “Because he commits

hostilities upon the subjects and property of any or all nations,

without any regard to right or duty, or any pretence of public

authority,” the pirate is “hostis humani generis,” United States

v. Brig Malek Adhel, 43 U.S. (2 How.) 210, 232 (1844)—in

other words, “an enemy of the human race,” United States v.

Smith, 18 (5 Wheat.) U.S. 153, 161 (1820). Thus, “all nations

[may punish] all persons, whether natives or foreigners, who

have committed this offence against any persons whatsoever,

with whom they are in amity.” Id. at 162.

9

Universal jurisdiction is not some idiosyncratic domestic

invention but a creature of international law. Unlike the

average criminal, a pirate may easily find himself before an

American court despite committing his offense on the other

side of the globe. Ali’s situation is a bit more complicated,

though. His indictment contains no straightforward charge of

piracy. Rather, the government accuses him of two inchoate

offenses relating to piracy: conspiracy to commit piracy and

aiding and abetting piracy.

On their face, both ancillary statutes apply generally and

without exception: § 2 to “[w]hoever . . . aids, abets, counsels,

commands, induces or procures” the commission of “an

offense against the United States,” 18 U.S.C. § 2(a) (emphasis

added), and § 371 to persons who “do any act to effect the

object of the conspiracy” to “commit any offense against the

United States,” 18 U.S.C. § 371 (emphasis added). But so

powerful is the presumption against extraterritorial effect that

even such generic language is insufficient rebuttal. See Small

v. United States, 544 U.S. 388 (2005). That leaves both

statutes ambiguous as to their application abroad, requiring us

to resort to interpretive canons to guide our analysis.

Given this ambiguity in the extraterritorial scope of the

two ancillary statutes, we consider whether applying them to

Ali’s actions is consistent with international law. Conducting

this Charming Betsy analysis requires parsing through

international treaties, employing interpretive canons, and

delving into drafting history. Likewise, because the two

ancillary statutes are “not so broad as to expand the

extraterritorial reach of the underlying statute,” United States

v. Yakou, 428 F.3d 241, 252 (D.C. Cir. 2005), we also

conduct a separate analysis to determine the precise contours

of § 1651’s extraterritorial scope. Ultimately, Ali’s assault on

10

his conspiracy charge prevails for the same reason the attack

on the aiding and abetting charge fails.

A. Aiding and Abetting Piracy

We begin with Ali’s charge of aiding and abetting piracy.

Aiding and abetting is a theory of criminal liability, not a

separate offense, United States v. Ginyard, 511 F.3d 203, 211

(D.C. Cir. 2008)—one that allows a defendant who “aids,

abets, counsels, commands, induces or procures” commission

of a crime to be punished as a principal, 18 U.S.C. § 2(a). “All

that is necessary is to show some affirmative participation

which at least encourages the principal offender to commit the

offense, with all its elements, as proscribed by the statute.”

United States v. Raper, 676 F.2d 841, 850 (D.C. Cir. 1982).

From Ali’s perspective, it is not enough that acts of piracy

were committed on the high seas and that he aided and

abetted them. Rather, he believes any acts of aiding and

abetting he committed must themselves have occurred in

extraterritorial waters and not merely supported the capture of

the CEC Future on the high seas.

Ali’s argument involves two distinct (though closely

related) inquiries. First, does the Charming Betsy canon pose

any obstacle to prosecuting Ali for aiding and abetting piracy?

For we assume, absent contrary indication, Congress intends

its enactments to comport with international law. Second, is

the presumption against extraterritoriality applicable to acts of

aiding and abetting piracy not committed on the high seas?

1. Piracy and the Charming Betsy Canon

Section 1651 criminalizes “the crime of piracy as defined

by the law of nations.” Correspondence between the domestic

and international definitions is essential to exercising

11

universal jurisdiction. Otherwise, invocation of the magic

word “piracy” would confer universal jurisdiction on a nation

and vest its actions with the authority of international law. See

Randall, supra, at 795. As a domestic matter, doing so may be

perfectly legal. But because Charming Betsy counsels against

interpreting federal statutes to contravene international law,

we must satisfy ourselves that prosecuting Ali for aiding and

abetting piracy would be consistent with the law of nations.

Though § 1651’s invocation of universal jurisdiction may

comport with international law, that does not tell us whether

§ 2’s broad aider and abettor liability covers conduct neither

within U.S. territory nor on the high seas. Resolving that

difficult question requires examining precisely what conduct

constitutes piracy under the law of nations. Luckily, defining

piracy is a fairly straightforward exercise. Despite not being a

signatory, the United States has recognized, via United

Nations Security Council resolution, that the U.N. Convention

on the Law of the Sea (“UNCLOS”) “sets out the legal

framework applicable to combating piracy and armed robbery

at sea.” S.C. Res. 2020, U.N. Doc. S/Res/2020, at 2 (Nov. 22,

2011); see United States v. Dire, 680 F.3d 446, 469 (4th Cir.

2012). According to UNCLOS:

Piracy consists of any of the following acts:

(a) any illegal acts of violence or detention,

or any act of depredation, committed for

private ends by the crew or the

passengers of a private ship . . . and

directed:

(i) on the high seas, against another

ship . . . or against persons or

property on board such ship . . . ;

12

(ii) against a ship, . . . persons or

property in a place outside the

jurisdiction of any State;

(b) any act of voluntary participation in the

operation of a ship . . . with knowledge

of facts making it a pirate ship . . . ;

(c) any act of inciting or of intentionally

facilitating an act described in

subparagraph (a) or (b).

UNCLOS, art. 101, Dec. 10, 1982, 1833 U.N.T.S. 397, 436.

By including “intentionally facilitating” a piratical act within

its definition of piracy, article 101(c) puts to rest any worry

that American notions of aider and abettor liability might fail

to respect the international understanding of piracy. 3 One

question remains: does international law require facilitative

acts take place on the high seas?

Explicit geographical limits—“on the high seas” and

“outside the jurisdiction of any state”—govern piratical acts

under article 101(a)(i) and (ii). Such language is absent,

however, in article 101(c), strongly suggesting a facilitative

act need not occur on the high seas so long as its predicate

offense has. Cf. Dean v. United States, 556 U.S. 568, 573

(2009) (“[W]here Congress includes particular language in

one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or

exclusion.” (internal quotation marks omitted)). So far, so

good; Charming Betsy poses no problems.

3

As neither party draws support for its position from article

101(b), we need not opine on its meaning here.

13

Ali endeavors nonetheless to impute a “high seas”

requirement to article 101(c) by pointing to UNCLOS article

86, which states, “The provisions of this Part apply to all parts

of the sea that are not included in the exclusive economic

zone, in the territorial sea or in the internal waters of a State,

or in the archipelagic waters of an archipelagic State.” 1833

U.N.T.S. at 432. Though, at first glance, the language at issue

appears generally applicable, there are several problems with

Ali’s theory that article 86 imposes a strict high seas

requirement on all provisions in Part VII. For one thing, Ali’s

reading would result in numerous redundancies throughout

UNCLOS where, as in article 101(a)(i), the term “high seas”

is already used, and interpretations resulting in textual

surplusage are typically disfavored. Cf. Babbitt v. Sweet

Home Chapter of Communities for a Great Or., 515 U.S. 687,

698 (1995). Similarly, many of the provisions to which article

86 applies explicitly concern conduct outside the high seas.

See, e.g., UNCLOS, art. 92(1), 1833 U.N.T.S. at 433 (“A ship

may not change its flag during a voyage or while in a port of

call . . . .”); id. art. 100, 1833 U.N.T.S. at 436 (“All States

shall cooperate to the fullest possible extent in the repression

of piracy on the high seas or in any other place outside the

jurisdiction of any State.”). Ali’s expansive interpretation of

article 86 is simply not plausible.

What does article 86 mean, then, if it imposes no high

seas requirement on the other articles in Part VII of

UNCLOS? After all, “the canon against surplusage merely

favors that interpretation which avoids surplusage,” not the

construction substituting one instance of superfluous language

for another. Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034,

2043 (2012). We believe it is best understood as definitional,

explicating the term “high seas” for that portion of the treaty

most directly discussing such issues. Under this interpretation,

article 86 mirrors other prefatory provisions in UNCLOS. Part

14

II, for example, concerns “Territorial Sea and Contiguous

Zone” and so opens with article 2’s explanation of the legal

status of a State’s territorial sea. 1833 U.N.T.S. at 400. And

Part III, covering “Straits Used for International Navigation,”

begins with article 34’s clarification of the legal status of

straits used for international navigation. 1833 U.N.T.S. at 410.

Drawing guidance from these provisions, article 86 makes the

most sense as an introduction to Part VII, which is titled

“High Seas,” and not as a limit on jurisdictional scope. Cf.

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

133 (2000) (“It is a fundamental canon of statutory

construction that the words of a statute must be read in their

context and with a view to their place in the overall statutory

scheme.” (internal quotation marks omitted)).

Thwarted by article 101’s text, Ali contends that even if

facilitative acts count as piracy, a nation’s universal

jurisdiction over piracy offenses is limited to high seas

conduct. In support of this claim, Ali invokes UNCLOS

article 105, which reads,

On the high seas, or in any other place outside

the jurisdiction of any State, every State may

seize a pirate ship or aircraft, or a ship or

aircraft taken by piracy and under the control

of pirates and arrest the persons and seize the

property on board. The courts of the State

which carried out the seizure may decide upon

the penalties to be imposed . . . .

1833 U.N.T.S. at 437. Ali understands article 105’s preface to

govern the actual enforcement of antipiracy law—and, by

extension, to restrict universal jurisdiction to the high seas—

even if the definition of piracy is more expansive. In fact, Ali

gets it backward. Rather than curtailing the categories of

15

persons who may be prosecuted as pirates, the provision’s

reference to the high seas highlights the broad authority of

nations to apprehend pirates even in international waters. His

reading also proves too much, leaving nations incapable of

prosecuting even those undisputed pirates they discover

within their own borders—a far cry from “universal”

jurisdiction. Article 105 is therefore no indication

international law limits the liability of aiders and abettors to

their conduct on the high seas.

Ali’s next effort to exclude his conduct from the

international definition of piracy eschews UNCLOS’s text in

favor of its drafting history—or, rather, its drafting history’s

drafting history. He points to UNCLOS’s origins in article 15

of the 1958 Geneva Convention on the High Seas, which

closely parallels the later treaty’s article 101. See Geneva

Convention on the High Seas, art. 15, Apr. 29, 1958, 13

U.S.T. 2312, 450 U.N.T.S. 82. Article 15 was based in large

part on a model convention compiled at Harvard Law School

by various legal scholars, see 2 ILC YEARBOOK 282 (1956),

who postulated that “[t]he act of instigation or facilitation is

not subjected to the common jurisdiction unless it takes place

outside territorial jurisdiction.” Joseph W. Bingham et al.,

Codification of International Law: Part IV: Piracy, 26 AM. J.

INT’L L. SUPP. 739, 822 (1932). Ali hopes this latter statement

is dispositive.

Effectively, Ali would have us ignore UNCLOS’s plain

meaning in favor of eighty-year-old scholarship that may have

influenced a treaty that includes language similar to UNCLOS

article 101. This is a bridge too far. Legislative history is an

imperfect enough guide when dealing with acts of Congress.

See Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J.,

concurring in the judgment) (“If one were to search for an

interpretive technique that, on the whole, was more likely to

16

confuse than to clarify, one could hardly find a more

promising candidate than legislative history.”). Ali’s

inferential chain compounds the flaws—and that even

assumes a single intent can be divined as easily from the

myriad foreign governments that ratified the agreement as

from a group of individual legislators. Even were it a more

feasible exercise, weighing the relevance of scholarly work

that indirectly inspired UNCLOS is not an avenue open to us.

Basic principles of treaty interpretation—both domestic and

international—direct courts to construe treaties based on their

text before resorting to extraneous materials. See United

States v. Alvarez-Machain, 504 U.S. 655, 663 (1992) (“In

construing a treaty, as in construing a statute, we first look to

its terms to determine its meaning.”); Vienna Convention on

the Law of Treaties, art. 32, May 23, 1969, 8 I.L.M. 679, 692,

1155 U.N.T.S. 331, 340. Because international law permits

prosecuting acts of aiding and abetting piracy committed

while not on the high seas, the Charming Betsy canon is no

constraint on the scope of Count Two.

2. Piracy and the Presumption Against Extraterritorial Effect

Ali next attempts to achieve through the presumption

against extraterritoriality what he cannot with Charming

Betsy. Generally, the extraterritorial reach of an ancillary

offense like aiding and abetting or conspiracy is coterminous

with that of the underlying criminal statute. Yakou, 428 F.3d

at 252. And when the underlying criminal statute’s

extraterritorial reach is unquestionable, the presumption is

rebutted with equal force for aiding and abetting. See United

States v. Hill, 279 F.3d 731, 739 (9th Cir. 2002) (“[A]iding

and abetting[] and conspiracy . . . have been deemed to confer

extraterritorial jurisdiction to the same extent as the offenses

that underlie them.”); see also Yunis, 924 F.2d at 1091

(analyzing underlying offenses under extraterritoriality canon

17

but conducting no separate analysis with respect to conspiracy

conviction). Ali admits the piracy statute must have some

extraterritorial reach—after all, its very terms cover conduct

outside U.S. territory—but denies that the extraterritorial

scope extends to any conduct that was not itself perpetrated

on the high seas.

We note, as an initial matter, that proving a defendant

guilty of aiding and abetting does not ordinarily require the

government to establish “participation in each substantive and

jurisdictional element of the underlying offense.” United

States v. Garrett, 720 F.2d 705, 713 n.4 (D.C. Cir. 1983). A

defendant could, for example, aid and abet “travel[ing] in

foreign commerce[] for the purpose of engaging in any illicit

sexual conduct with another person,” 18 U.S.C. § 2423(b),

without himself crossing any international border. Cf. Raper,

676 F.2d at 850.

Ali’s argument appears to be more nuanced. Ali claims

the government seeks to use aider and abettor liability to

expand the extraterritorial scope of the piracy statute beyond

conduct on the high seas. Because § 1651 expressly targets

crimes committed on the high seas, he believes Congress

intended its extraterritorial effect—and, by extension, that of

the aiding and abetting statute—to extend to international

waters and no further. And, he claims, our opinion in United

States v. Yakou supports this proposition by deciding that a

foreign national who had renounced his legal permanent

resident status could not be prosecuted for aiding and abetting

under a statute applicable to “‘[a]ny U.S. person, wherever

located, and any foreign person located in the United States or

otherwise subject to the jurisdiction of the United States.’”

428 F.3d at 243 n.1 (quoting 22 C.F.R. § 129.3(a)). But this

language makes clear the intention to limit U.S. criminal

jurisdiction to certain categories of persons—a restriction

18

employing broad aider and abettor liability would have

frustrated. See 438 F.3d at 252. In other words, Yakou spoke

to the sort of defendant Congress had in mind, while § 1651’s

reference to the high seas, in contrast, describes a category of

conduct.

Thus, instead of thwarting some clearly expressed

Congressional purpose, extending aider and abettor liability to

those who facilitate such conduct furthers the goal of

deterring piracy on the high seas—even when the facilitator

stays close to shore. In fact, Yakou distinguished the offense

at issue there from those crimes—like piracy—in which “the

evil sought to be averted inherently relates to, and indeed

requires, persons in certain categories.” Id. In keeping with

that principle, § 1651’s high seas language refers to the very

feature of piracy that makes it such a threat: that it exists

outside the reach of any territorial authority, rendering it both

notoriously difficult to police and inimical to international

commerce. See Eugene Kontorovich, Implementing Sosa v.

Alvarez-Machain: What Piracy Reveals About the Limits of

the Alien Tort Statute, 80 NOTRE DAME L. REV. 111, 152–53

(2004). As UNCLOS § 101(c) recognizes, it is self-defeating

to prosecute those pirates desperate enough to do the dirty

work but immunize the planners, organizers, and negotiators

who remain ashore.

Nor does the Supreme Court’s recent decision in Kiobel

v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013),

change the equation. Reiterating that “[w]hen a statute

provides for some extraterritorial application, the presumption

against extraterritoriality operates to limit that provision to its

terms,’” the Court rejected the notion that “because Congress

surely intended the [Alien Tort Statute] to provide jurisdiction

for actions against pirates, it necessarily anticipated the statute

would apply to conduct occurring abroad.” Id. at 1667

19

(quoting Morrison, 130 S. Ct. at 2883). Ali contends that

§ 1651’s high seas requirement is similarly limiting, and that

the presumption against extraterritoriality remains intact as to

acts done elsewhere.

Even assuming Ali’s analogy to Kiobel is valid, 4 he

overlooks a crucial fact: § 1651’s high seas element is not the

only evidence of the statute’s extraterritorial reach, for the

statute references not only “the high seas” but also “the crime

of piracy as defined by the law of nations.” As explained

already, the law of nations specifically contemplates, within

its definition of piracy, facilitative acts undertaken from

within a nation’s territory. See supra Subsection II.A.1. By

defining piracy in terms of the law of nations, § 1651

incorporated this extraterritorial application of the

international law of piracy and indicates Congress’s intent to

subject extraterritorial acts like Ali’s to prosecution.

Why then does § 1651 mention the high seas at all if “the

law of nations,” which has its own high seas requirements, is

filling in the statute’s content? Simply put, doing so fits the

international definition of piracy—a concept that

encompasses both crimes on the high seas and the acts that

facilitate them—into the structure of U.S. criminal law. To be

convicted as a principal under § 1651 alone, one must commit

piratical acts on the high seas, just as UNCLOS article 101(a)

4

Kiobel and its predecessors stated that courts may not infer

that all applications or provisions in a statute have extraterritorial

effect just because some do. See, e.g., Morrison, 130 S. Ct. at 2883;

Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 455–56 (2007).

These cases do not suggest, as Ali argues, that a statute’s

application to a particular foreign region cannot rebut the

presumption against extraterritoriality as to other unspecified

places.

20

demands. But applying aider and abettor liability to the sorts

of facilitative acts proscribed by UNCLOS article 101(c)

requires using § 1651 and § 2 in tandem. That is not to say

§ 1651’s high seas requirement plays no role in prosecuting

Ali for aiding and abetting piracy, for the government must

prove someone committed piratical acts while on the high

seas. See Raper, 676 F.2d at 849. That is an element the

government must prove at trial, but not one it must show Ali

perpetrated personally. 5

Of course, § 1651’s high seas language could also be read

as Congress’s decision to narrow the scope of the

international definition of piracy to encompass only those

actions committed on the high seas. But Ali’s preferred

interpretation has some problems. Most damningly, to

understand § 1651 as a circumscription of the law of nations

would itself run afoul of Charming Betsy, requiring a

construction in conflict with international law. Ultimately, we

think it most prudent to read the statute the way it tells us to.

It is titled “[p]iracy under law of nations,” after all.

Like the Charming Betsy canon, the presumption against

extraterritorial effect does not constrain trying Ali for aiding

and abetting piracy. While the offense he aided and abetted

must have involved acts of piracy committed on the high seas,

his own criminal liability is not contingent on his having

facilitated these acts while in international waters himself.

B. Conspiracy To Commit Piracy

5

The “high seas” reference may also be Congress’s attempt to

expressly rebut the presumption against extraterritoriality as to

piracy. See Argentine Republic v. Amerada Hess Shipping Corp.,

488 U.S. 428, 440 (1989) (“When it desires to do so, Congress

knows how to place the high seas within the jurisdictional reach of

a statute.”).

21

Though the aiding and abetting statute reaches Ali’s

conduct, his conspiracy charge is another matter. In many

respects conspiracy and aiding and abetting are alike, which

would suggest the government’s ability to charge Ali with one

implies the ability to charge him with both. While conspiracy

is a “separate and distinct” offense in the United States,

Pinkerton v. United States, 328 U.S. 640, 643 (1946), it is

also a theory of liability like aiding and abetting; “[a]s long as

a substantive offense was done in furtherance of the

conspiracy, and was reasonably foreseeable as a necessary or

natural consequence of the unlawful agreement, then a

conspirator will be held vicariously liable for the offense

committed by his or her co-conspirators.” United States v.

Moore, 651 F.3d 30, 80 (D.C. Cir. 2011) (per curiam)

(internal quotation marks omitted).

Yet a crucial difference separates the two theories of

liability. Because § 371, like § 2, fails to offer concrete

evidence of its application abroad, we turn, pursuant to the

Charming Betsy canon, to international law to help us resolve

this ambiguity of meaning. Whereas UNCLOS, by including

facilitative acts within article 101’s definition of piracy,

endorses aider and abettor liability for pirates, the convention

is silent on conspiratorial liability. International law provides

for limited instances in which nations may prosecute the

crimes of foreign nationals committed abroad, and, in

invoking universal jurisdiction here, the government

predicates its prosecution of Ali on one of those theories. And

although neither side disputes the applicability of universal

jurisdiction to piracy as defined by the law of nations,

UNCLOS’s plain language does not include conspiracy to

commit piracy. See, e.g., Ved P. Nanda, Maritime Piracy:

How Can International Law and Policy Address This

Growing Global Menace?, 39 DENV. J. INT’L L. & POL’Y 177,

22

181 (2011) (“It should be noted that the [UNCLOS] definition

does not refer to either an attempt to commit an act of piracy

or to conspiracy relating to such an act, but it does include

voluntary participation or facilitation.”). The government

offers us no reason to believe otherwise, and at any rate, we

are mindful that “imposing liability on the basis of a violation

of ‘international law’ or the ‘law of nations’ or the ‘law of

war’ generally must be based on norms firmly grounded in

international law.” Hamdan v. United States, 696 F.3d 1238,

1250 n.10 (D.C. Cir. 2012) (emphasis added). International

law does not permit the government’s abortive use of

universal jurisdiction to charge Ali with conspiracy. Thus, the

Charming Betsy doctrine, which was no impediment to Ali’s

aider and abettor liability, cautions against his prosecution for

conspiracy.

The government hopes nonetheless to salvage its

argument through appeal to § 371’s text. Though courts

construe statutes, when possible, to accord with international

law, Congress has full license to enact laws that supersede it.

See Yunis, 924 F.2d at 1091. The government suggests

Congress intended to do precisely that in § 371, which

provides that “[i]f two or more persons conspire . . . to

commit any offense against the United States . . . and one or

more of such persons do any act to effect the object of the

conspiracy,” each is subject to criminal liability. Homing in

on the phrase “any offense against the United States,” the

government contends Congress intended the statute to apply

to all federal criminal statutes, even when the result conflicts

with international law. Yet, as we explained above, if we are

to interpret § 371 as supplanting international law, we need

stronger evidence than this. Indeed, the Supreme Court

recently rejected the notion that similar language of general

application successfully rebuts the presumption against

extraterritorial effect. See Kiobel, 133 S. Ct. at 1665 (“Nor

23

does the fact that the text reaches ‘any civil action’ suggest

application to torts committed abroad; it is well established

that generic terms like ‘any’ or ‘every’ do not rebut the

presumption against extraterritoriality.”).

Under international law, prosecuting Ali for conspiracy

to commit privacy would require the United States to have

universal jurisdiction over his offense. And such jurisdiction

would only exist if the underlying charge actually falls within

UNCLOS’s definition of piracy. Because conspiracy, unlike

aiding and abetting, is not part of that definition, and because

§ 371 falls short of expressly rejecting international law,

Charming Betsy precludes Ali’s prosecution for conspiracy to

commit piracy. The district court properly dismissed Count

One.

III. THE HOSTAGE TAKING CHARGES

The linguistic impediments that trouble Counts One and

Two do not beset the charges for hostage taking under 18

U.S.C. § 1203. The statute’s extraterritorial scope is as clear

as can be, prescribing punishments against “whoever, whether

inside or outside the United States, seizes or detains and

threatens to kill, to injure, or to continue to detain another

person in order to compel a third person or a governmental

organization to do or abstain from doing any act.” 18 U.S.C.

§ 1203(a). We also need not worry about Charming Betsy’s

implications, as § 1203 unambiguously criminalizes Ali’s

conduct. Section 1203 likely reflects international law

anyway, as it fulfills U.S. treaty obligations under the widely

supported International Convention Against the Taking of

Hostages, Dec. 17, 1979, 18 I.L.M. 1456, 1316 U.N.T.S. 205.

See United States v. Lin, 101 F.3d 760, 766 (D.C. Cir. 1996).

Nor, as in the case of the federal piracy statute, is there any

uncertainty as to the availability of conspiratorial liability,

24

since the statute applies equally to any person who “attempts

or conspires to” commit hostage taking. 18 U.S.C. § 1203(a).

Faced with this reality, Ali has adopted a different

strategy when it comes to Counts Three and Four, swapping

his statutory arguments for constitutional ones. He relies on

the principle embraced by many courts that the Fifth

Amendment’s guarantee of due process may impose limits on

a criminal law’s extraterritorial application even when

interpretive canons do not. Though this Circuit has yet to

speak definitively, see United States v. Delgado-Garcia, 374

F.3d 1337, 1341–43 (D.C. Cir. 2004) (explaining that, even if

prosecuting the appellants for their extraterritorial conduct

would deprive them of due process, the argument had been

waived through their unconditional guilty pleas), several other

circuits have reasoned that before a federal criminal statute is

given extraterritorial effect, due process requires “a sufficient

nexus between the defendant and the United States, so that

such application would not be arbitrary or fundamentally

unfair.” United States v. Davis, 905 F.2d 245, 248–49 (9th

Cir. 1990) (internal citation omitted); see United States v.

Brehm, 691 F.3d 547, 552 (4th Cir. 2012); United States v.

Ibarguen-Mosquera, 634 F.3d 1370, 1378–79 (11th Cir.

2011); United States v. Yousef, 327 F.3d 56, 111–12 (2d Cir.

2003) (per curiam); United States v. Cardales, 168 F.3d 548,

552–53 (1st Cir. 1999). 6 Others have approached the due

6

Some courts have suggested grouping these decisions into

two categories: those that “look for real effects or consequences

accruing in the United States before they find [a] nexus” and those

that “require only that extraterritorial prosecution be neither

arbitrary nor fundamentally unfair, and are not concerned with

whether a sufficient nexus exists.” United States v. Campbell, 798

F. Supp. 2d 293, 306–07 (D.D.C. 2011). The distinction may be

illusory, with the “nexus” inquiry serving more as a proxy for

whether a particular prosecution is unfair. See id. at 307. For

25

process issue in more cautious terms. See United States v.

Suerte, 291 F.3d 366, 375 (5th Cir. 2002) (assuming, without

deciding, the Due Process Clause constrains extraterritorial

reach in order to conclude no violation occurred); United

States v. Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir.

1993) (accord). Likewise, the principle is not without its

scholarly critics. See, e.g., Curtis A. Bradley, Universal

Jurisdiction and U.S. Law, 2001 U. CHI. LEGAL F. 323, 338

(“[I]t may be logically awkward for a defendant to rely on

what could be characterized as an extraterritorial application

of the U.S. Constitution in an effort to block the

extraterritorial application of U.S. law.”). We need not decide,

however, whether the Constitution limits the extraterritorial

exercise of federal criminal jurisdiction. Either way, Ali’s

prosecution under § 1203 safely satisfies the requirements

erected by the Fifth Amendment. 7

A. Due Process and Extraterritorial Conduct

In support of his due process argument, Ali cites a

panoply of cases concerning personal jurisdiction in the

context of civil suits. It is true courts have periodically

borrowed the language of personal jurisdiction in discussing

the due process constraints on extraterritoriality. But Ali’s

flawed analogies do not establish actual standards for judicial

present purposes, that question is purely academic, as Ali does not

tether his argument to a particular version of the due process

argument.

7

Ali has not cited—and we have not found—any case in

which extraterritorial application of a federal criminal statute was

actually deemed a due process violation. Although that does not

mean such a result is beyond the realm of possibility, it does

suggest Ali’s burden is a heavy one, for he traverses uncharted

territory.

26

inquiry; the law of personal jurisdiction is simply inapposite.

See United States v. Perez Oviedo, 281 F.3d 400, 403 (3d Cir.

2002). To the extent the nexus requirement serves as a proxy

for due process, it addresses the broader concern of ensuring

that “a United States court will assert jurisdiction only over a

defendant who should reasonably anticipate being haled into

court in this country.” United States v. Klimavicius-Viloria,

144 F.3d 1249, 1257 (9th Cir. 1998) (internal quotation marks

omitted). What appears to be the animating principle

governing the due process limits of extraterritorial jurisdiction

is the idea that “no man shall be held criminally responsible

for conduct which he could not reasonably understand to be

proscribed.” Bouie v. City of Columbia, 378 U.S. 347, 351

(1964) (internal quotation marks omitted). The “ultimate

question” is whether “application of the statute to the

defendant [would] be arbitrary or fundamentally unfair.”

United States v. Juda, 46 F.3d 961, 967 (9th Cir. 1995).

United States v. Shi, 525 F.3d 709 (9th Cir. 2008), is

most on point. Shi dealt with a due process challenge to the

defendant’s prosecution under 18 U.S.C. § 2280, which

implements the Convention for the Suppression of Unlawful

Acts Against the Safety of Maritime Navigation, Mar. 10,

1988, 27 I.L.M. 672, 1678 U.N.T.S. 222. See 525 F.3d at

717–24. Because “the Maritime Safety Convention . . .

expressly provides foreign offenders with notice that their

conduct will be prosecuted by any state signatory,” due

process required no specific nexus between the defendant and

the United States. Id. at 723. In other words, the treaty at issue

in Shi did what the International Convention Against the

Taking of Hostages does here: provide global notice that

certain generally condemned acts are subject to prosecution

27

by any party to the treaty. 8 We agree with the Ninth Circuit

that the Due Process Clause demands no more.

That Ali’s Counts Three and Four concern hostage taking

and not piracy in the technical sense does nothing to alter

Shi’s logic. The Ninth Circuit did reason that “the acts with

which Shi is charged constitute acts of piracy” and

“[p]rosecuting piracy was the original rationale for creating

universal jurisdiction.” Id. Yet strictly speaking, Shi was not

charged with piracy but with the separate, albeit analogous,

offense of violence against maritime navigation. See 18

U.S.C. § 2280. And it is the “universal condemnation of the

offender’s conduct,” not some theory of universal jurisdiction,

that drove the Ninth Circuit’s reasoning. 525 F.3d at 723.

That is why the court also cited Martinez-Hidalgo, which

dealt with narcotics trafficking, see 993 F.2d at 1056—an

offense not generally understood to be subject to universal

jurisdiction, see RESTATEMENT (THIRD) OF FOREIGN

RELATIONS LAW § 404. By that standard, hostage taking is

also an offense whose proscription “is a result of universal

condemnation of those activities and general interest in

cooperating to suppress them, as reflected in widely-accepted

8

Interestingly, Shi even offers some insight into our own

Circuit’s precedent. Citing our opinion in United States v. Rezaq,

134 F.3d 1121 (D.C. Cir. 1998), the Ninth Circuit found

particularly relevant our decision to apply an aircraft hijacking

statute to the defendant “without noting any possible due process

concerns.” 525 F.3d at 724. Acknowledging that our silence “may

have stemmed from any number of reasons,” the court found it

“important to note that, like § 2280, the statute in Rezaq was

enacted to implement an international agreement to extradite and to

prosecute perpetrators of widely-condemned conduct.” Id. Rezaq is

not squarely analogous, however, since “hijacking of aircraft,” like

piracy, is a universal jurisdiction offense. See 134 F.3d at 1131;

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 404.

28

international agreements and resolutions of international

organizations.” Id. § 404 cmt. a. Regardless, Shi’s comparison

of § 2280 to piracy was an alternate holding, not a necessary

premise to its conclusion that a treaty may provide notice

sufficient to satisfy due process—a fact even Ali concedes.

See Appellee Br. 37.

Ali also complains that though China was a signatory to

the relevant international agreement in Shi, Somalia is not a

party to the International Convention Against the Taking of

Hostages, 9 meaning his home nation has not consented to

U.S. criminal jurisdiction over its hostage-taking nationals.

True, as a matter of international law, this case may not be so

obvious as those in which “the flag nation has consented to

the application of United States law to the defendants.”

United States v. Angulo-Hernández, 565 F.3d 2, 11 (1st Cir.

2009). But Ali mistakes the due process inquiry for the

customary international law of jurisdiction. “Whatever merit

[these] claims may have as a matter of international law, they

cannot prevail before this court. . . . Our duty is to enforce the

Constitution, laws, and treaties of the United States, not to

conform the law of the land to norms of customary

international law.” Yunis, 924 F.2d at 1091. Whatever due

process requires here, the Hostage Taking Convention

suffices by “expressly provid[ing] foreign offenders with

notice that their conduct will be prosecuted by any state

signatory.” Shi, 525 F.3d at 723. That is what Shi said. It did

not hold that due process depends on the participation of the

defendant’s nation in the agreement.

9

Somalia does not join most other nations in this regard. As of

May 28, 2013, the treaty has 39 signatories and 170 parties. See

United Nations Treaty Collection, International Convention Against

the Taking of Hostages, available at

http://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=XVIII-

5&chapter=18&lang=en.

29

Finally, Ali asserts that “[f]or non-citizens acting entirely

abroad, a jurisdictional nexus exists when the aim of that

activity is to cause harm inside the United States or to U.S.

citizens or interests.” United States v. Al Kassar, 660 F.3d

108, 118 (2d Cir. 2011). In Al Kassar, these interests were

present because “[t]he defendants’ conspiracy was to sell

arms to FARC with the understanding that they would be used

to kill Americans and destroy U.S. property.” Id. There is

good reason to believe that whatever “nexus” due process

might demand is not “jurisdictional” in the proper sense of the

term. See Delgado-Garcia, 374 F.3d at 1343 (“Appellants’ . .

. . assertion is a claim that the due process clause limits the

substantive reach of the conduct elements of 8 U.S.C.

§ 1324(a), not a claim that the court lacks the power to bring

them to court at all.”). But even assuming Al Kassar’s

characterization is right, the decision only tells us when such

2013) (“‘P ⊃ Q’ does not mean ‘¬P ⊃ ¬Q.’”). And in any

a nexus exists, not when it is absent. See New England Power

Generators Ass’n v. FERC, 707 F.3d 364, 370 n.3 (D.C. Cir.

event, this quote from Al Kassar cannot sustain the expansive

construction Ali accords it. Otherwise, the Fifth Amendment

would preclude prosecution even of universal jurisdiction

offenses like piracy.

Al Kassar also states, “Fair warning does not require that

the defendants understand that they could be subject to

criminal prosecution in the United States so long as they

would reasonably understand that their conduct was criminal

and would subject them to prosecution somewhere.” 660 F.3d

at 119. Other courts have made similar statements. See, e.g.,

Martinez-Hidalgo, 993 F.2d at 1056 (“Inasmuch as the

trafficking of narcotics is condemned universally by law-

abiding nations, we see no reason to conclude that it is

‘fundamentally unfair’ for Congress to provide for the

30

punishment of persons apprehended with narcotics on the

high seas.”). While Ali protests that the Second Circuit cannot

have meant what it said, the consequence of a literal reading

is not the limitless prosecutorial power he envisions. Given

presumptions like the Charming Betsy and extraterritoriality

canons, conduct abroad would only be subject to statutes with

clear foreign scope (like § 1203). In fact, since it is those

canons and not the Fifth Amendment that have thus far

restrained such prosecutorial abuse, Ali’s claim that the

government’s position somehow vitiates essential protections

seems dubious.

Lastly, we mention that the district court initially denied

dismissal of Counts Three and Four. See Ali II, 885 F. Supp.

2d at 45 (“Because the hostage taking charges allege the same

high-seas conduct for which Ali is lawfully subject to

prosecution for piracy, and in light of the notice that the

Hostage Taking Convention provides, the Court concludes

that there is nothing fundamentally unfair about Ali's

prosecution under § 1203.”). It was only once the district

court doubted the government’s ability to prove either piracy

count that it decided haling Ali into a U.S. court to answer

charges of hostage taking would violate due process. See Ali

III, 885 F. Supp. 2d at 61–62. Since we have reversed the

district court’s decision narrowing the scope of Count Two,

the logic of Ali II, which allowed Ali’s charges for hostage

taking to proceed, is once again applicable.

B. Miscellaneous Due Process Arguments

For his final salvo, Ali fires a barrage of “Special

Criminal Law Concerns” he claims are relevant to his right to

due process. We respond in kind:

31

• Ali laments the “lack of vicinage” between his alleged

crime and the legal forum set for his prosecution. See

United States v. Cores, 356 U.S. 405, 407 (1958) (“The

provision for trial in the vicinity of the crime is a

safeguard against the unfairness and hardship involved

when an accused is prosecuted in a remote place.”). But

Counts Three and Four introduce no unique detriment to

Ali’s defense beyond that already inherent to his piracy

prosecution. And the sweep of Ali’s argument is

overinclusive, as it would seemingly defeat all

extraterritorial applications of criminal statutes.

• Ali next targets the length of his pretrial detention. While

he is correct that excessive pretrial detention may in

certain circumstances deprive a defendant of his right to a

speedy trial, “courts must still engage in a difficult and

sensitive balancing process.” Barker v. Wingo, 407 U.S.

514, 533 (1972). Beyond stating the length of his

detention, Ali has offered no specifics on how his rights

have been violated or his defense prejudiced.

• Invoking double jeopardy norms, Ali contends his

susceptibility to future prosecution in, say, Denmark or

Somalia renders inappropriate his prosecution in the

United States. Though he acknowledges the Fifth

Amendment’s prohibition on double jeopardy does not

constrain prosecutions by separate sovereigns, see United

States v. Rashed, 234 F.3d 1280, 1282 (D.C. Cir. 2000),

he nonetheless tries to smuggle in the underlying principle

via the Due Process Clause. To invoke the principle of

double jeopardy in order to thwart a well-recognized

exception to the Double Jeopardy Clause is already

strange. Yet even more mystifying is his attempt to make

the point in the first forum to subject him to criminal

charges. It seems such an argument would be more

32

compelling in the next forum (if any) that opts to

prosecute him.

Along with these due process concerns, Ali discusses

principles of international comity. The issue, as well as its

import for due process, is addressed in cursory fashion. No

matter. An amorphous reference to international comity is no

basis for gainsaying the clearly expressed intention of the

United States, by both treaty and statute, to prosecute hostage

takers for their offenses abroad.

IV. CONCLUSION

We affirm the district court’s dismissal of Count One.

We reverse the district court’s narrowing of the scope of

Count Two to acts Ali performed while on the high seas and

reverse dismissal of Counts Three and Four.

So ordered.