During and in Relation To: How the Ninth Circuit Rewrote a Statute in the Case of the Millennium Bomber

• Publication year: 2008
• Citation: Vol. 32 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 32, No. 2WINTER 2009

NOTE

During and In Relation To: How the Ninth Circuit Rewrote a Statute in the Case of the Millennium Bomber

By Peter A. Talevich(fn*)

"Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver to all intents and purposes, and not the person who first wrote or spoke them."(fn1)

I. Introduction

Courts are often faced with difficult issues of statutory construction, forced to discern sometimes confusing and conflicting legislation that may sweep more broadly or cut more narrowly than what Congress intended or what the Constitution will tolerate. In interpreting such statutes, the Supreme Court has long spoken of restraint in establishing the proper judicial role by deferring to legislative policy choices.(fn2) Thus, when a statute is plain on its face and is intended to address the very conduct at issue, a court is not free to read more into the statute to address its own notions of fairness.(fn3) In United States v. Ressam,(fn4) however, the Ninth Circuit Court of Appeals ran afoul of this principle-providing an example of the judiciary overstepping its role in statutory construction by inferring an unwritten element into an explosives statute. Not surprisingly, the United States Supreme Court announced that it had reversed the Ninth Circuit by an 8-1 margin on May 19, 2008.(fn5)

The 2007 appeal before the Ninth Circuit, which followed the conviction of so-called Millennium Bomber, Ahmed Ressam, was expected to center around the government's contention that the twenty-two year sentence handed down was unreasonably low.(fn6) Ressam, however, cross-appealed and argued that his conviction for carrying an explosive(fn7) during the commission of a felony (lying to customs officials) required the government to prove not only a temporal link between the carrying of the explosive and the underlying felony, but also a "relational element" between the two.(fn8) This relational element would have required the jury to find that Ressam carried the explosive "in relation to"(fn9) giving false statements to the customs official. The jury was not instructed to find this element at trial. Because two other circuits had already rejected the argument that the explosives statute required a relational element,(fn10) Ressam's claim appeared to have little chance of success.

But early in the government's oral argument, the judges on the Ninth Circuit panel made clear that the explosives statute, and not the sentencing issue, was their first priority. One of the panel judges asked the government's attorney to address the explosives issue rather than sentencing. Referring to a prior case that had held that the federal firearms statute contained an implicit relational element,(fn11) she stated, "I don't understand how we are free in this circuit to say [that the statute does not contain a relational element]."(fn12) Indeed, when the decision was announced in January 2007, the court had not only reserved the sentencing issue for another day but went further by reversing Ressam's conviction on the explosives charge.(fn13)

In reversing part of Ressam's conviction, the Ninth Circuit's method of analyzing the explosives statute, 18 U.S.C. § 844(h)(2), erred at three key points. First, the court failed to conduct a satisfactory plain-language analysis of the statute.(fn14) This analysis would have concluded that the phrase "carries an explosive during the commission of a felony" has a plain meaning that includes no requirement that the explosive facilitate the felony.(fn15) Second, although an analysis of congressional intent and legislative history is unnecessary when a statute is plain on its face,(fn16) the statute's history only further confirms its lack of a relational element.(fn17) Although Congress added an explicit relational element to the crime of carrying a firearm during a felony,(fn18) it did not add the same element to the explosives statute.(fn19) This was a policy choice made in recognition of the different dangers presented by explosives and fire arms, not an inadvertent omission.(fn20) Third, the Ninth Circuit incorrectly relied on United States v. Stewart(fn21) a case that had read a relational element into the firearms statute.(fn22) This reliance was misplaced because Stewart's method of inquiry had been undermined by rules of statutory construction articulated by the Supreme Court.(fn23)

The existence or nonexistence of a relational element has a significant effect on the scope of the explosives statute.(fn24) Read without a relational element, the statute could have the effect of harshly criminalizing conduct where the explosives were incidentally present and unrelated to the underlying felony,(fn25) a consequence Congress surely did not intend.(fn26) Conversely, the presence of a relational element would have the effect of decriminalizing conduct in which the explosive presented a significant and indiscriminate danger(fn27)-falling directly within the class of harm addressed by the statute-but did not actually further the underlying felony. These two conflicting goals of the statute only further indicate that the judgment of a statute's breadth and harshness are inherently policy-related and must be resolved by Congress rather than the courts.

This Note analyzes the facts of the Ressam case and the legal analysis applied to it by both the Ninth Circuit and the Supreme Court. Part II discusses the intriguing history of the Ressam case.(fn28) Part III examines the Ninth Circuit's reasoning in Ressam and shows why the Supreme Court was correct in reversing the improperly decided case. Part IV discusses the possible scope of the explosives statute under each interpretation-without or with a relational element. Finally, Part V concludes by commenting on the future of the explosives statute in light of the Supreme Court's decision, as well as the future of Ahmed Ressam.

II. The High Profile Capture, Trial, and Sentencing of Ahmed Ressam

Ahmed Ressam waits in the Federal Maximum Security Prison at Florence, Colorado(fn29) for the resolution of his legal issues, almost nine years after his capture. This Part discusses Ressam's plot to attack the United States, which ended with his arrest at the United States-Canada border, his conviction on nine federal charges, and his ultimate hope of avoiding a lengthy prison sentence through a sympathetic judge and an unprecedented statutory interpretation.

A. Ahmed Ressam's Plot Against America

In February 1994, Ressam, an Algerian, entered North America for the first time-and was immediately detained at Mirabel Airport in Montreal, where he admitted to using a false passport to enter Canada.(fn30) Seemingly headed for deportation, Ressam attempted to gain political asylum by claiming he had been tortured by Algerian police(fn31) but missed his immigration court date and remained in the country.(fn32) Later, Ressam was caught shoplifting from a department store and ordered to leave the country, but the departure date came and went-and he stayed.(fn33)

By mid-1995, Ressam was moving beyond petty theft and immigration violations to more dangerous activities.(fn34) He began to associate with Fateh Kamel, a former mujahia(fn35) in Afghanistan and Bosnia.(fn36) Ressam joined a radical mosque and surrounded himself with fellow disaffected immigrants.(fn37) Although Canadian and French authorities were aware of Ressam and his fellow sympathizers, they generally viewed the group as "more pathetic than dangerous."(fn38)

Far from being pathetic, by March 1998, Ressam planned to travel to Afghanistan to train at a terrorist camp, but he first needed the Canadian passport that would allow him to travel with ease.(fn39) Ressam had little difficulty obtaining this identification: he stole a blank baptismal certificate from a Catholic parish and forged the priest's signature.(fn40) Then, he paid an acquaintance to pick up his passport.(fn41) His new name: Benni Antoine Noris.(fn42)

Under his new name, Ressam traveled to Pakistan and met with top al Qaeda leader Abu Zubaydah.(fn43) He then attended a terrorist training camp in Khalden, Afghanistan, for six months.(fn44) Recruits at these camps learned about combat and terrorist techniques and heard lectures from veterans of groups such as Hamas, Hizbollah, and Islamic Jihad.(fn45) Around this time, Abu Doha, the ringleader of Ressam's Algerian training group, visited Osama bin Laden in Kandahar and told him that a cell was ready to wage jihad in the United States.(fn46) Ressam, meanwhile, followed up his initial training at a more specialized camp akin to "terrorist graduate school," focusing on explosives.(fn47)

Having effectively received an advanced degree in terrorism, Res-sam traveled back through Los Angeles International Airport (LAX) in February 1999, where he envisioned the devastation an attack would have on the busy airport.(fn48) Although he briefly considered detonating a vehicle bomb in a Jewish neighborhood in Montreal,(fn49) Ressam focused on attacking LAX.(fn50)

To carry out his attack, Ressam and an associate first checked into a motel in Vancouver, British Columbia on November 17, 1999, where they would manufacture the necessary explosives.(fn51) During this time, Ressam became very ill, having contracted...