clinic i want to think the court for the opportunity to have oral argument in this case because the issue before this court is a pure legal issue the parties agree on all the relevant facts and the parties even agree on the legal principles that govern the case the only diploid of disagreement is on how those legal principles apply to those  law is not something that can that gives congress the ability to domesticate ordinary street crime like the government is attempting to do in this case the parties agree that nothing in the record indicates that mr know well had any political motive or knew he was targeting an american citizen when he committed this kidnapping in haiti the person he kidnapped was in fact residing in haiti had haitian identification documents and nothing in the record shows any nexus to the united states for this crime whatsoever the government's position is that notwithstanding those facts this crime can first of two arguments although i think that they run together and you link them but the first thing i would read you to say is that there was a requirement  prosecution to show that mr noel had knowledge of his hostages citizenship right under the circumstances of this particular case what is there about this statute that suggests that they had to know from talk about twelve o three that the defendant had to know that the hostage he had se in fact an american hostage your honor the reason that that's a required under the fact of this case is because this is a statute that does in fact apply extraterritorial i don't want to statute applies extraterritorial e jurisdiction must comport with due process the government agrees with that as they say on page fifteen and i think all of that is right all i'm asking is and you may be right anyway that you need a sufficient nexus to be found somewhere but what i don't understand is why the defendant had to know the victim hostage was an american because the reason i raise is just to cut right to the chase is it seemed to me that in order to was stablish the elements of the offense there has to be a seizing or detaining of a person there's no question about that here there has to be a threat to kill injure or continue to detain you've got that and there has to be demand on a third party or the government to comply with the demands in exchange for release all of that is is present and it seems to me the fo element in the case that is to say that the hostage be an american citizen is a jurisdictional conferring element no more no less and that being the case i do not understand why the defendant would have to know the hostage was an american your honor we don't contend that would be a in every single prosecution however the reason that in this case that must be the rule is because of footnote nine in united states versus fiola which very clearly says that if congress in that case of course involved an assault on a federal agent and the supreme court said that the defendant did need to know that the agent was a federal agent but footnote nine says that congress were only seeking were it were only seeking to deter assaults in general and not a that interfere with the united states government's operation then the statute would not be constitutional and so in this case because it's not like the cases the government cites the government relies on three cases neal none of those cases involve anything that could be called ordinary street crime ali involved a somali pirate taking a ship and negotiating ransom for the ship the ship was a danish ship it involved all sorts of international implications there were u s people on the ship maria was the murder of a dea agent and neil was an assault on a cruise ship that came and left from california so all of those cases are different in that they have a nexus not only to the united states but in the case of morello direct interference with united states government operation why isn't this more like i'm just about this fourth element which is plainly jurisdictional and i will get to whether or not they can exercise troops to action seems to me to be arguably a separate but related question first issue was did he have to know the victim was in fact an american national rather than the haitian or something something like that why isn't this like kidnapping where the courts have said and we've said more than once that knowledge of crossing the state line is not an essential element of the kidnapping offense the requirement that an offender cross the state lines simply furnishes a basis for the exercise of jurisdiction because in this case the defendant doesn't have to know that he's crossed the state line in order to meet the jurisdictional recorder because in this case your honor the requirement is not only touristic tional and the supreme court has said in beulah that there is a difference between jurisdictional elements that are exclusively jurisdictional and jurisdictional elements that are not only jurisdictional in this case it's not only jurisdictional because we know that part twelve o three b two of the statute excludes from its from its scope the exact same kidnapping that happened in this case except if the if mr noel had been an american citizen who kidnapped another american citizen in the united states that and this statute wouldn't apply so congress wasn't trying to exercise full authority under either universal jurisdiction or the passive personality principle or even the to go to the length that international law would permit congress had a very limited  the question in open a slightly different way wouldn't the next is or notice requirement be satisfied for due process purposes where it can be shown that the extraterritorial application of the law comports with the treaty itself and with international law no your honor this is not a no me tell me why not because this is not a notice issue the due process issue is not just about did you know what you were doing was illegal that is dicked from the d c circuit in the ali case but the case is very different because it's premised on universal jurisdiction moreover ali who was a somali pirate came to the united states and so was prosecuted under twelve o three b one b not be when i say so he was found in the united states and because piracy is a metal is punishable by universal jurisdiction of course it's like the classic universal jurisdiction crime there you could the only concern for the d c circuit in that case would have been notice but the due process inquiry in an extra territorial statute case is not limited to notice it's did you know you would be prosecuted in the united states not me ask the question again in a slightly different case just looking to international law to the extent that we can as a source under the passive personality or victim theory you know what i'm referring to in this respect would in a state have prescriptive jurisdiction over anyone no let me finish anywhere who injures one of its nationals that is to say jurisdiction itself is grounded on the nationality of the victim no your honor that's not correct and  subject to the passive personality principle and that ordinary crimes don't qualify the passive personality principle applies in cases of an international perspective was he kidnapped and let me let me rephrase it so if i hear what you're saying and i may have misunderstood if indeed a foreign defendant national seizes and kidnaps an american national for political reasons terrorism whatever but still unbeknownst to him that the target victim is an american national it's an act of international terror would that the kidnapping on foreign soil are they person unbeknownst to the defendant is an american national where the kidnapping is for money the kidnapping is for a political purpose why why do i care one animates what the motive is of the defend in simply asking the question of whether there's a jurisdiction pampas a bad purpose no purpose which might be more general motive and that's the distinction that i'm because seems to me what you're going to his motive because here i've missed maybe i got that wrong no i think you're correct your hon but i think the so there's so for example that the case that your honor is hypothetically discussing is united states vs units from the d c circuit in one thousand nine hundred one and in that case it involved an airplane hijacking and there's no reason to believe that the hijackers knew there were any americans on board the plane there were but they may not have known that the differences in cases like that universal jurisdiction applies and when universal jurisdiction applies it's not an ordinary street crime because universal jurisdiction never applies to ordinary street crime and neither does the passive personality principle and all of these precedents make that very clear what is your best case that number one that street crime as opposed to terrorist political intent matters what's the best case and secondly does any such case hold is in any case holding in the hostage taking because ordinary street crimes is on page twelve fifty six can't be punished under congress's power to define offenses under international law so completely forecloses turning ordinary street crime in a foreign country into an international law climb with blizzard her toto does not allow that whatsoever and so it incorporates floors it incorporates all these cases we're talking about the government  time is more than up so i have a question because it seems to me the first analysis is one of statutory interpretation of the statute do you agree with that the first question a statutory interpretation just characterize the nature of the argument yes you're not statutory interpretation of what is it the parties agree on this the law is that whenever a statute applies extraterritorial e ok the due process concern that prosecutions not be arbitrary are fundamentally unfair and different courts say a different way but but that's the test must be satisfied it only applies to extra territorial statutes when they're use extra territorially but in order for a federal court to exercise jurisdiction just like the federal officer statue you didn't have to know the person was a federal officer you still have a nexus here that there was a us citizen so why doesn't that satisfy that extra territorial concern because the federal officer statute was territorial it wasn't extra territories and that's how you just english right so in the cases the government sites like lynn and lew were kidnappings in america so those were also territorial applications of twelve o three so they don't implicate this case or to answer my question you're over i just want to know how you analyze a kindly thank you good morning mr coke and good morning may please the court jonathan cohen on behalf of the united states respectfully this is not a case involving customary international law under bill as like under maria which was a street level kidnapping crime of broad in a foreign country and ali which involved the hostage taking out in the hostage convention both maria and ali held that a treaty not universal jurisdiction but a treaty give global notice that this crime could be prosecuted and the united etc you don't have to know for jurisdictional purposes that the victim is in america exactly so now if that he is an american your second argument is the one i really would like you to help me with is that you get over the home due process and nexus because of the treaty itself that is the underpinning of twelve o three yes your honor is both the d c circuit the fourth circuit held in the rio and ali dram a treaty can give global notice that the that a person who commits a prescribed dots will be subject to prosecution in signatory countries without having notice that they will be prosecuted in a particular country and mari on page one fifty seven it says fair warning does not require that the defendant understand it could be subject to part criminal prosecution in the united states so long as they would reasonably understand that their contact was criminal and would subject them to prosecution somewhere then cites the brehm case in the d c circuit which was the basis of the d c s a leak case which held that the international protected persons convention alone would give notice sufficient to satisfy due process maria was tell specifically what i will find in the treaty itself that will answer the question the treaty which entered into by the united states s five paragraph one d in article ten all concerned ways that a signatory country should properly get jurisdiction when its citizens are kidnapped for any purpose including for ransom third parties or governments not just governments and it deals with the jury ways that the government should be able to establish jurisdiction to prosecute those cases the i p p treaties in the rio jurisdiction requirements are almost identical  and this is the i'm sorry the fourth circuit held that that street level crime satisfy due process it was a perfect example this you have to use the the passive personality principle and apply it to the treaty to get satisfy to satisfy due process concerns because it's no trap for the unwary to know that you might be subject to prosecution for committing an obvious criminal act like kidnapping is a gainst that is that while that's true an act that is in the nature of terrorism is not truthful an act that is in the nature of a street crime i haven't read the full  yet but i gather you say that is such a case it involves a major street crime yes you're on the facts and maria involved a group of people in columbia who when they saw someone who looked like they won't be wealthy entering a it's both a piracy case and a hostage act and hostage convention case it wasn't terrorism in the sense of any political ideology or government targeting it's purely i mean it's theft on a grand scale you're seizing a vessel against the law of nations the question in bell is accurate colorado is whether drug trafficking was against the law of nations as a constitutional matter did congress have the numerated power to assert m d m e a jurisdiction under the law of nations clause that's what i was i could thought it was about in this case so the foundation is plainly different there absolutely it was conceded in the know well ok but so let's not only the foundation the analytical approach they are was whether or not under the law under international law either at the time of the constitution or currently drug trafficking which universal a crime was i said it wasn't because some countries now criminalized but that was about the why is it reasonable to exercise jurisdiction in a case such as this where you're talking about exercising extraterritorial jurisdiction over a purely street crime on foreign soil committed by a foreign defendant who had no knowledge that the victim was an american and there is no apparent link that i can see to were on the united states as an mar address is and what i would be addresses is that there is no unfairness in being hauled into an american court when it happens to be implicating me let me come at it this way i was looking at the restatement talking about exercising this kind of jurisdiction and asking what is and what is not reasonable and what might go into the the next in the in the calculation among other things you'd look at the link i suppose between the activity on foreign soil to the territory of the regulating state what's the link if any but tween kidnapping american national or foreign soil for money in the united states other than that the victim is an american i mean it is that the victim that's the beginning in the end of the state is the u s interest and that's the reason countries or far as it got what kinds of crimes fall within the extraterritorial application and what not well in new adapting is what else textually would be included that's a difficult question the ninth circuit to try to address to stand why it's irrelevant in court here yes because the proposition you're asserting runs the risk of opening the door to the extraterritorial application in american prosecution of a multitude of serious but disparate street crimes that occur on foreign soil that have nothing in the world to do with the united states other than that the victim happens to be an american and that's unbeknown to the defendant the limiting principle that the ninth for war crimes are within and what crimes are without it would look at the text itself the texas  hostage up to the text of the prince the process of personality print well respected let's take it both ways ok as to the hostage act clearly both the convention excludes cases for example where there is the hostage convention would exclude cases where there is a kidnapping in one country by members of that country of victims in that country the hostage act requires either that the kidnapper be a foreign national all sophisticated serious crime i mean do you accept that this is just a street crime here and the hostage taking i mean i would not use that phrase i think this is you know any time someone is seized as a person and taken hostage and whatever the demand is it's not a pickpocket it's and threaten to kill or detain a less money is paid or any other demand it doesn't have to be money on doesn't have to be made so other demand some other type of man might satisfy it i mean it could be a demand of demand release somebody near prison away won't release this person i mean yes there could be a demand that's more terrorist it could be a demand for any other action commercial or otherwise but you know this is a more serious crime that we have to decide anything other than this crime would qualify i mean just that it's only been presented in this case i mean if the court is interested i'm happy to try and find what would the limiting principle be the ninth circuit said that when it is a crime specifically addressed by the united states in international law context for example here where you're supported by the by the hostage convention that's a limiting principle but it didn't in the ninth circuit neal case ultimately need to decide what you know completely inclusive list of crimes would satisfy i can say for example that this court has recognized that sex trafficking crimes in foreign countries that don't even involve u citizens could you know that was the best in case so we know there are all kinds of extraterritorial of applications of u s law that have been upheld under both statutory and constitutional grounds by this court but as you say what's presented here is a statute that identical and there or it was would you want to call it a street level crime or would recognize the weight of seizing a person in that case the person was actually killed but the kidnapping itself was prosecuted merely because he looked like a wealthy person who they could get something for and happened to that he was a u s official the jurisdictional fact that he was a your u s official with not something that he that the government needed to prove the defendant knew and the merino court cited the fact of the implementation of the treaty as grounds for showing that that satisfy due process concerns and as the d c circuit held a newly and a fourth circuit maria one brand treaties alone can provide that certain that global knowledge and actually he said his complaint is not just about notice but the treaty could give you notice but the treaty also he said the other thing that his concern is that he did know he would be hailed in the kohut anywhere but the treaty itself say that that a person could be brought to trial in any one of the countries that is a signatory to the  the treaty yes or are in fact the treaty says the article ten paragraph four that you should treat the crime for jurisdictional purposes as if it occurred in the care or tory of any country who is able to establish proper jurisdiction under article five of the treaty such as when its citizens are kidnapped and the case that it doesn't matter whether the country of origin of the defendant was a signatory but here what is haiti is signatory you kno honor actually i'm sorry i don't know the answer to that question the treaty was submitted i believe its signatory list was included so i hope that would answer your question and i apologize for not having that on my top of my head but as to the specific question of whether it's arbitrary or unfair to be hauled into united states maria oh and only directly address the un you know whether it's arbitrary to be hauled into court in the united states and both found that there was no due process in somalia had not signed i don't know but the full ticket gays again your honor i don't immediately recall that but given the state of somalia and certainly the lawlessness of the the region where the seizure final question time is short but to what extent is your argument turn at least in part on the application of the passive personality principle in this context i think is an additional helpful factor but it is not a so there's there's a lot of confusion about exactly how all this works so let me try to start with a lousy occur tato the reason this case is relevant and controlling is because belies occur tato sets out the three sources of power that congress has to act extra territorially piracy clause offenses clause felonies clause piracy covers universal jurisdiction it covers things like hijacking an airplane the offenses clause covers things that are punishable under customary international law which would include for example the kidnapping of a terrorist sort of situation and the felonies clause only punishes conduct on the high seas which isn't implicated here so we're left with the offenses clause and this court said that the offens clause is limited by the by international law itself and what this court said on page twelve forty nine is whether the offense as defined is an offense against the law of nations depends on the thing done not on any declaration to that effect by congress so the question is not whether the treaty gave notice that you could be prosecuted anywhere the question is whether the treaty gave notice that a normal everyday kidnapping that happens in haiti all the time in mexico all the time regular street crime would whether a person who sets out to just commit a regular everyday kidnapping and a third world poor country would know that he is violating an international treaty and there is no indication in the record that that is satisfied and that has to be satisfied because this is not a statute passed under the interstate commerce clause or necessary improper clause or any of the usual things that we're used to in federal court this is a statute passed under a very limited power and that power is limited to customary international law and an ordinary kidnapping is not against the law of nations how do we know that we know that because united states versus florida said so and united states versus floor is approved extensively and  circuit said private crime is not part of customary international law murder of one private party by another although universally prescribed by the domestic law of all countries is not actionable as a violation of customary international law because the nations of the world have several not mutual concern so while down to a simple example a kidnapper who kidnaps an american national for money and nothing more nothing less is without the jurisdiction of the united states extrude territorially whereas a kidnapper who is a terrorist and kidnaps an american again no motive would be the critical distinction yes to circumstances i gave you yes and morello on page one fifty seven explains what i understand that we don't like to have on complicated things it be better to have a bright line rule but this isn't an area of law amenable to bright line rules were real on one fifty seven said it is not arbitrary to prosecute a defendant in the united states if his actions affected significant american interests that's why murdering a dea agent in the back of a taxi cab is in fact punishable in the united states even if you didn't know it was a dea agent why because the interests of the nation are significant and unless this was this court wants to be the very first court to ever read the word significant right out of that alice's and domesticate every crime against any american anywhere in the world because there is no limiting principle to this because in fact it's not real the crime here is hostage taking the crime isn't ready it isn't assault it isn't our own property it's kidnapping and that falls within the ambit of twelve o three and the underlying treaty so we're limited to begin with with this particular statute which is dealing with a particular kind of crime which is pegged to a particular treaty right yes you are in context not by taking words and parts of the statute out of context and in context b one described three crimes each of those gives the united states properly read a significant interest in prosecuting hostage taking but that is not present as applied in this case if the exact same crime had happened and mr know well had kidnapped his victim to as your daughter said get the united states to release some prisoner or extend the t s p for haitian immigrants for some political purpose then now we're talking about significant u s interest the the court in lynn identified two specific interests that are prosecute that congress can further with this power to defy the customary international offices foreign policy and immigration ok so if i understand it before this statute can be applied to the extra territorial application of the hostage taken for perper kidnap for the purposes of money and the person is an american you've got to show something more and the something more you have to show is a significant interest and significant cannot be satisfied simply because it was an american you need something more something different like animation for a terrorist purpose so simple as that one hundred percent correct your honor or a do you let me ask the question in this way what significance is and he ought we to attach to the actual who treaty itself from talking about the article five and things like like that among other things it says the jurisdiction has to be established with respect to a hostage who is a national of that state if the state considers it appropriate congress promulgated twelve zero three zero then it says that the underlying treaty or convention says each state party shall take such measures as may be necessary to establish its jurisdiction over hostage taking offenses under the treaties that the treaty itself recognizes that in implementing state may do this yes or so the only question is why can't this state do just that because congress lacks the power to do that there is no clause in the constitution that allows congress to make a domestic and you seem to me your argument has morphed just read your reply brief which addresses this more than your i just read your first brief i don't get this argument the first see in the reply brief for sure but let me assure you two questions let's assume the government proved he knew this was an american that's why he was doing it ok as i take it your argument would be no different it doesn't matter if the defendant knew this was an american your argument here is congress lack the power to do it i think if somebody asked i know if he knew that this was an american it and yes you could prosecute you could i believe so this is about this ok that this case that is not is i'm stand there's no doubt here because i'm trying to understand your constitutional argument you're really trying to make a constitutional argument when you go to the offenses clause you're saying they didn't have the power to enact this statute was out amends roya is that what you're saying what i'm saying let me answer the first part first and the second part so this goes back to what judge marcus was saying about motive i think if a foreigner deliberately targets  hostage was an american even if the purpose was simply money nothing more i think that's as far as congress can possibly go yes so if that's what you had if the defendant knew that the victim was an american concede that there is jurisdiction i would concede that's arguable yes i would say that the united states can say significant american interest and implicated so the question is here where they didn't know he didn't know that he was an american whether there was some other source or basis that's why we're looking at the treaty that's why we're looking at these principles of international law questions of pass a personality at center your congress congress only has so many powers and a treaty can expand the powers under the constitution so whatever the treaty says congress has to punish offenses understand mary international law and that's not this case so i don't know what source of power the united states thinks congress can prosecute this crime under but i don't know of any thanks it's just interesting to me that whether or not congress had the power to do this depends because i didn't put the men try on the statue now it's going to depend upon what the defendant knew i mean that's always how do you know whether to prosecute or not because you may not in the event based on the evidence the government just you don't profit you don't prosecute it until you know you don't have all the evidence of the time you prosecute the government has to have probable to follow up on you know play at this out i'm an american citizen mike governments you know she might have her video to do we know whether she revealed it here in the record shows no reason to suspect that he had ok so let's take the next scenario just to play this out suppose the victim during the course of the hostage taking and it continues tells him i'm an american citizen and he continues to do it and demand the money would that be ok i think that's a jury question  what either the defendant believed it whether he'd withdrew whether he made an effort to say i don't want to mess with the united states i want to withdraw from this right this moment it's a jury question at that point that's what not for ok that's why whether the statue applies the not to me it's just hard to say it depends on the