District Judge Lewis A. Kaplan
Defendant was charged with conspiring to kill Americans by bombing the U.S. embassies in Kenya and Tanzania. Captured in Libya by the U.S. Army’s Delta Force, he was purportedly forcibly removed and interrogated by U.S. intelligence agents, during which time he could not communicate with his family or representatives of Libya’s government. Rather than responding to claims that defendant was not informed of his rights under the United Nations Charter and Hague Convention, the government asserted that the indictment’s dismissal—on grounds that apprehension and treatment violated the Ker-Frisbie doctrine, the Posse Comitatus Act, and international treaties—was inappropriate. The court denied dismissal, finding defendant’s claim of entitlement to relief under United States v. Toscanino mistaken. His lawyer did not allege torture or brutality, nor asserted outrageous conduct of the sort asserted in Toscanino. In addition to noting that no authority supports an indictment’s dismissal for violating the Posse Comitatus Act, the court found the U.N. Charter and Hague Convention cannot protect defendant from prosecution. Neither treaty is self executing, enforceable in U.S. courts, nor provides for the indictment’s dismissal.