Nathan Lewin: America should prosecute terrorists freed in Shalit swap

Hundreds attend the funerals of four Israelis murdered in a Hamas ambush near Hebron. (Flash 90)

It is a federal crime to kill a national of the United States, even on foreign soil; US law prescribes death or extended imprisonment for those convicted.

Under duress growing out of Hamas’s capture and refusal to release Gilad Shalit, the Israeli government agreed to release 1,027 convicted criminals, including a significant number who participated in bombings or other terrorist acts that deliberately killed civilians.

Much has been written since the release of the first group bemoaning the fact that these murderers are likely to kill again and that, at the very least, they will not suffer the punishment they deserve.

Many of the actual and intended victims of terrorist acts such as the August 2001 bombing of the Sbarro restaurant in Jerusalem, the March 2003 bus bombing in Haifa, and the September 2003 bombing of Jerusalem’s Cafe Hillel, were citizens of the United States. Little attention is being paid to provisions of American law that declare that the murder or maiming of American citizens, even “outside the United States,” are criminal acts punishable in United States courts by death or life imprisonment.

The Antiterrorism Act of 1990, reenacted in 1992, now Section 2332 of the United States Criminal Code, made it a federal crime to “kill a national of the United States, while such national is outside the United States,” and it prescribed “death or imprisonment for any term of years or for life, or both” as the penalty if the killing technically constitutes “murder,” and a term of up to 10 years if it is only “voluntary manslaughter.” Conspirators in such a crime can get up to 20 years’ imprisonment.

In 1994 Congress passed another law that made it a federal crime to use an explosive bomb “against a national of the United States while such national is outside of the United States.” And a federal law enacted in 2002 covers “bombings of places of public use” and makes it a federal offense under American law to deliver, place, discharge, or detonate “an explosive or other lethal device in, into, or against a place of public use” or “a public transportation system” with the intent to cause death or serious bodily injury. The law covers an offense that is committed outside the United States if “a victim is a national of the United States.” The punishment is the same as provided in the 1994 law – death or life imprisonment “if death results.”

THESE AND other similar extraterritorial criminal provisions of American law have been invoked by federal prosecutors in US courts in cases growing out of bombings in the Philippines, in Colombia, in Kenya, and in Tanzania. The Department of Justice has never seen fit to prosecute Hamas terrorists in United States courts for killing American citizens in bombings aimed at Israeli targets.

American prosecutors may have failed to enforce federal law in these cases because they relied on the Israeli criminal justice system to arrest, try and punish the perpetrators.

Punishment under Israel’s judicial system has now been frustrated by Hamas’ demands following the illegal coercion of the Shalit captivity. The response of the United States Department of Justice should now be to indict, extradite and put to trial in United States courts any of the released criminals who violated American criminal law.

A primary candidate is Ahlam Tamimi, the unrepentant woman who drove a suicide bomber to a Sbarro in Jerusalem, where he succeeded in killing 15 people and wounding 130, including many Americans. Israeli judges sentenced her to 16 terms of life imprisonment as a conspirator in the murders. As a beneficiary of the Shalit exchange, she is now free in Jordan.

As of March 1995, Jordan has an extradition treaty with the United States covering any offense, like murder, that “is punishable under the laws in both Contracting States by deprivation of liberty for a period of more than one year or by a more severe penalty.” And a conspiracy to commit such an offense is explicitly covered by Article 2(2) of the 1995 treaty.

If she is formally charged in the United States with violating Section 2332 and her extradition is requested, could Jordan avoid turning Tamimi over to US authorities for criminal prosecution? The treaty excludes “political offenses,” but even an Arab country could not claim that the Hamas mass killing in Jerusalem was a “political offense.” At the very least, Jordan should be put to that test.

Another candidate for federal indictment, extradition, and trial in the United States is Ibrahim Dar Musa, who participated in planning the bombing at Jerusalem’s Café Hillel in which US citizens David Applebaum and his daughter, Nava, who was to be married the following day, were killed in September 2003. The 1994 and 2002 laws could be invoked against Dar Musa. Indictments of either of these criminals or others responsible for the death or maiming of Americans who have been released or may be released as part of the bargain for Shalit’s return to Israel would vindicate American law and bring to fruition Congress’s intention to punish killers of US citizens on foreign soil with life imprisonment.

The writer is a Washington attorney who was a federal prosecutor and served as a deputy assistant attorney-general in the US Department of Justice.