Equal Protection Held Hostage: Ransoming the Constitutionality of the Hostage Taking Act

Victor C. Romero* I. INTRODUCTION In the early 1980s, international and domestic public sentiment against terrorist acts ran high following the 1975 OPEC hostage-taking incident, the Entebbe airport hijacking in 1976, and perhaps most notorious of all, the Iranian Hostage Crisis of 1979.1 In response, many members of the global community became signatories to the 1979 International Convention Against the Taking of Hostages (Hostage Taking Convention or HTC).2 The United States signed on to that agreement, and in 1984, Congress passed enabling legislation entitled the Hostage Taking Act (HTA or the Act)3 as part of a crime control initiative aimed at deterring future terrorist acts. Because Congress was most concerned with conforming to the Hostage Taking Convention and addressing international terrorism, the HTA does not apply in domestic non-governmental hostage-taking cases unless either the hostage-taker or the hostage is a noncitizen.4 Until 1988, the only reported case applying the HTA involved the prosecution of a Lebanese citizen accused of hijacking a Jordanian airliner with U.S. citizens aboard;5 this incident fit the prototypical international terrorist model to which the HTA was originally intended to apply. However, since that initial case, the federal government has found creative ways to invoke the HTA in domestic hostagetaking situations that bear little resemblance to international terrorism and are more akin to garden-variety state-law kidnapping. To date, the Act has been invoked in domestic hostage-taking situations in cases ranging from undocumented immigrant smuggling,6 to alleged underlying drug conspiracies,7 to individual kidnapping cases;8 the common factual link among these actions is that, in each, either the hostage or the hostage-taker was a noncitizen.9 When the HTA has been challenged under an equal protection analysis,10 the federal courts have uniformly held the Act's alienage classification to be a valid exercise of Congress's plenary power over the conduct of foreign relations and to be rationally related to achieving Congress's goals of complying with the Hostage Taking Convention and deterring international terrorism.11 In response, this Article contends that, following the Supreme Court's lead in Adarand Constructors, Inc. v. Penal12 and City of Cleburne v. Cleburne Living Center, Inc.,13 the continuing maltreatment of noncitizens in this country requires that federal alienage classifications be reviewed with the same strict, or at least heightened rational basis, scrutiny applied to state legislation. By subjecting the HTA's alienage classification to more stringent review, courts will likely find that the federal government's proffered rationales of treaty compliance and terrorist deterrence do not satisfy the guarantees of equal protection when invoked in what are otherwise state-law kidnappings. Specifically, noncitizens' equal protection rights are violated when the HTA is applied to purely local kidnappings that bear no relation to Congress's foreign policy goals; leaving such prosecutions unchecked may lead to a two-tier system in which citizen defendants are prosecuted in state court while noncitizens face generally stiffer penalties in federal court on the same facts-facts that should create purely local, not national, interest. As a check on the government's charging power under the Act, this Article suggests the following equal protection safeguard: In domestic non-governmental hostage-taking situations, the HTA should not apply solely on the basis of the hostage-taker's or hostage's alienage absent some other legitimate nexus to foreign relations. Such a requirement will have two salutary effects. First, an international nexus arrangement would act as a check on alienage discrimination; without such a requirement, noncitizens may find themselves haled into federal court in far greater numbers than their citizen counterparts. Such vigilance is especially important because alienage often serves as a proxy for race and the maximum penalty underlying an HTA offense-a sentence of life imprisonment14-functions as a powerful bargaining chip for the federal government against those who are among society's most powerless. …