Gregory S. McNeal is Senior Fellow in Counterterrorism and International Law and Assistant Director of the Institute for Global Security Law and Policy at the Case Western Reserve University School of Law.
Brian J. Field is a Research Fellow in Counterterrorism with the Institute for Global Security Law and Policy, and a J.D. 2007 candidate at Case Western Reserve University School of Law.
The United States government is actively engaged in a search for individuals believed to have killed American citizens and destroyed American property. As most of these individuals live openly in foreign states hostile to the United States, achieving extradition often proves impossible. Despite repeated diplomatic efforts to secure the transfer of these terrorists to America, many continue to operate in foreign states under the protection of the host country's continued denial of the terrorist's presence within their borders. For example, Imad Fayez Mugniyah-head of security for the Lebanese group Hizballah, and listed on the Federal Bureau of Investigation's (FBI) most wanted list-is wanted by the United States for his role in the hijacking of TWA Flight 847.1 Despite substantial evidence presented by the United States indicating that Mugniyah is in Lebanon, the Lebanese Government has persistently argued otherwise.2 Further, the United States has consistently pursued the extradition from Lebanon of Mohammad Ali Hamadi, who spent eighteen years in a German prison for his role in the TWA hijacking, only to have the request repeatedly denied.3
The problem of bringing these individuals to justice is further complicated by the fact that the United States is rarely able to pinpoint their precise location. Terrorists typically reside in host countries where it is nearly impossible to find them amongst citizens of those countries. Thus, the broad question is what tools are available to the U.S. government if it was to actually find a terrorist's location? Considering the inherent difficulty in finding that individual again, and the strong likelihood that leaving the individual to his own devices will yield further attacks on the United States, what ought the U.S. President do to preserve the peace and safety of American citizens? Specifically, are the options of the U.S. military restricted by international law trends? Not at all.
The government of the United States must be permitted to breach another nation's sovereignty in an effort to defend its citizens from future attacks. This Article addresses these questions by specifically discussing whether a terror suspect who was forcibly abducted may be prosecutedPage 493 by the United States despite possible territorial violations under the doctrine of male captus, bene detentus.4 The Article directly addresses whether territorial sovereignty can trump an effort to capture a terrorist who is planning future attacks.
This topic is not only germane to today's world as the conflict with terrorism is ongoing, but more specifically, both the Bush Administration's unwillingness to tolerate uncooperative nations and its determination to eliminate terrorism suggest that forcible abductions are likely to be the most effective and common means of carrying out the government's duty to defend its citizenry.5 Based on the likelihood that such acts will become more common, it is now our burden to determine if such actions are legally permissible, and if so, under what legal regime.
As Thomas Jefferson opined:
A strict observance of the written laws, is doubtless one of the highest duties of a good citizen: but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property, and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.6
At the very core of this question are the United States' interests in enforcing its own laws and protecting American citizens. Juxtaposed against these interests is the process of balancing the considerations of other nations' rights, as well as international human rights.7 This question becomes even more complex when one attempts to determine the practical limitations of a nation's adherence to the rule of law in a dynamically changing and dangerous environment.8
Prior to entering the specific discussion of extraterritorial kidnappings, it is necessary to discuss the general facts on the subject. On September 11, 2001 the United States was forced into the world of terrorism in a way never before imagined. The U.S. government responded in the halls of Congress, the White House, the courts, and the Armed Forces. Shortly after the September 11th attacks, a coalition formed by the United States demanded that the Taliban turn over Osama bin Laden.9 Upon the failure of the Taliban to produce bin Laden, this U.S.-led coalition used military force to overthrow the Taliban in Afghanistan. This was consistent with President Bush's September 12th commitment that the United States would no longer distinguish between the perpetrators of the terrorist attacks and those who harbor them.10The Taliban government was overthrown in less than two months by this coalition.11 This conflict, and the ensuing search for members of Al Qaeda throughout South Asia, forced the Administration to address the question of how best to deal with captured terror suspects.
On November 13, 2001 the President issued an executive order which asserted the authority to establish and use military commissions to try terrorism suspects captured by the United States.12 The military commissions were designed to be conducted unilaterally by the United States military under a more lenient procedural system than typical in domestic courts.13 As time has progressed, more procedural safeguards have been added by the administration.14
These procedural developments give rise to essential questions of both U.S. domestic law as well as the development of the international community's response to terrorism. David Cole articulates the main line of criticism, noting that the Justice Department's practices, taken together, amount to a policy of "lock up first, ask questions later, and presume that an alien is dangerous until the FBI has a chance to assurePage 495 itself that the individual is not."15 However, while these criticisms of the initial detention process contain elements of truth, it must be kept in mind that the government was thrust into a situation for which planning was impossible.
The cases against "enemy combatants"16 from the Guantanamo Bay military commissions have raised many new and dynamic legal questions. Specifically, the U.S. government must find new applications for existing law regarding the treatment of enemy combatants, the acceptable methods of punishment, the necessary procedures to guarantee fairness, and the proper forums for objections. The specific question this Article addresses arises when the United States wants to capture and prosecute a "kingpin" terrorist. This kingpin is no run-ofthe-mill messenger of the terrorist organization, but is, rather, an individual of greater rank, such as the aforementioned head of security for Hizballah. Because of his higher rank, the United States has a greater interest in his capture. In order to capture the "kingpin," the government may find it necessary to enter the sovereign territory of a foreign state.
Is such capture and subsequent detention acceptable under domestic and international law? The way the United States finally resolves this issue of extraterritorial abduction will have a profound impact on issues of national security, human rights, and international law in general. If an enemy combatant raises the defense that the U.S. government lacks jurisdiction because of an improper abduction, the Government's strongest argument will be the male captus, bene detentus doctrine consistent with the following analysis.
It is clear that the "kingpin" terrorist will never physically come into an American court's jurisdiction voluntarily. Thus, when this suspected terrorist is located beyond the physical jurisdiction of the court, a major problem arises. Under domestic and international law, what methods of gaining jurisdiction are available to the United States in such a situation? One option that the United States has considered in the past, and must do again, is extraterritorial abduction. However, if the United States were to exercise this option and extraterritorially abduct a person to try him or her in the United States, a jurisdictional conflict may arise. The enemy combatant may raise the argument that the use ofPage 496 extraterritorial kidnapping strips the U.S. government of jurisdiction because of the breach of another nation's sovereignty during the abduction. The U.S. government, in exercising extraterritorial abduction, has four pillars on which to claim its authority: (1) customary international law, (2) international rules, (3) decisions from U.S. courts, and (4) decisions from foreign courts.