Fourth Circuit affirms criminal conviction of U.S.
civilian CIA contractor for causing death of Afghan detainee at U.S. base in
Afghanistan by repeated kicks and beatings, based on recent statutory
extensions of special maritime and territorial jurisdiction federal courts
David Passaro (Defendant) was a civilian Central
Intelligence Agency (CIA) contractor in Afghanistan when he allegedly assaulted
and killed Abdul Wali in 2003 at Asadabad Firebase, Afghanistan. U.S. and
coalition forces had captured the Asadabad Firebase in late 2001 by. Defendant,
a former special forces medic, arrived in 2003, when the base was the target of
rocket attacks. U.S. forces suspected that Afghan national Abdul Wali had
organized those rocket attacks.
Wali surrendered voluntarily and Defendant proceeded to interrogate
him for two days. Defendant’s “techniques” of persuasion included throwing Wali
to the ground; striking him; hitting him with a large flashlight; and kicking
him in the groin. At the end of the second day of mistreatment, Wali collapsed
and died.
A North Carolina federal jury found Defendant guilty of the
fatal assaults. Defendant argues on appeal, inter alia, that the U.S. courts
lacked criminal jurisdiction over alleged assaults at U.S. Army outposts in
Afghanistan. The U.S. Court of Appeals for the Fourth Circuit, however,
affirms.
In this case, the Government based criminal jurisdiction on
the special maritime and territorial jurisdiction statute 18 U.S.C. § 7 (2006).
It extends federal criminal jurisdiction over certain crimes that states have been
traditionally regulating. Territorially, it extends to federal enclaves such as
military bases, federal buildings, national parks, the high seas within U.S.
admiralty and maritime jurisdiction, as well as to offenses committed on
aircraft and spacecraft.
In 2001, Congress added another subsection to § 7 through
the Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107‑56,
§ 804, codified at 18 U.S.C. § 7(9) (2006). It extends special maritime and
territorial jurisdiction to “the premises of United States diplomatic,
consular, military or other United States Government missions or entities in
foreign States, including the buildings, parts of buildings, and land
appurtenant or ancillary thereto or used for purposes of those missions or
entities, irrespective of ownership ...”
The question here is whether this Section enlarges a federal
court’s jurisdiction to crimes allegedly committed at the Asadabad Firebase in
2003. In order to determine the Section’s meaning and congressional intent, the
district court focused on the statutory terms “premises” and “mission.” The
district court then found jurisdiction over the alleged crime committed in
Asadabad in 2003. It reasoned that the U.S. has been conducting a military
mission in Afghanistan since late 2001, and the activities at the Asadabad
Firebase form part of that larger longstanding mission.
The Court of Appeals, however, considers this construction
inadequate. Instead, it construes § 7(9) to apply only to fixed locations by
stressing the importance of the terms “mission” and “premises.” The fact that
Congress placed subsection 9 within § 7 which only refers to more or less fixed
locations supports this interpretation. Congress included “military mission” in
a particular list of missions such as diplomatic, consular, and military
missions, thus indicating that it refers to permanent locations.
The Court then explains. “We turn then to the question of
whether, by June 2003, the ‘premises’ of Asadabad constituted a United States
‘military mission’ so as to render it within the criminal jurisdiction of a
federal district court.”
“Clearly, long‑established and permanent U.S. military bases
abroad, e.g., [the] Naval Air Facility Atsugi in Japan and [the] Ramstein Air
Base in Germany, constitute ‘premises’ of a ‘military mission’ under § 7(9).
These bases are the straightforward ‘military’ analogue to embassies, [as well
as to] the ‘diplomatic’ and ‘consular’ missions plainly within § 7(9)’s scope.”
“On the other hand, we doubt that § 7(9) reaches so broadly
as to encompass any area that U.S. soldiers occupy, no matter how temporary or
mobile their presence. For example, we agree with [Defendant] that § 7(9) would
not reach any piece of Afghan soil on which a soldier ‘pitches his pup tent.’
...”
“In cases that fall between these two extremes, courts must
consider a number of common‑sense, objective factors to determine whether a
particular location qualifies as the ‘premises’ of a United States ‘military
mission’ for purposes of § 7(9). Relevant factors include [1] the size of a
given military mission’s premises, [2] the length of United States control over
those premises, [3] the substantiality of its improvements, [4] actual use of
the premises, [5] the occupation of the premises by a significant number of
United States personnel, and [6] the host nation’s consent (whether formal or
informal) to the presence of the United States. This list surely does not
exhaust every factor relevant to determining § 7(9)’s reach; nor is any
[single] factor a prerequisite for jurisdiction. But these factors do bring to
bear relevant, objective considerations in resolving this question.” [Slip Op.
9‑10]
The Court then applies these elements to the case at bar.
Asadabad in fact does possess all the qualities of a substantially permanent
U.S. base abroad, and thus falls within the ambit of § 7(9). First, as to size,
Asadabad is a substantial facility, covering about 25 acres with a 10‑foot mud
wall around it. Second, by the time Defendant arrived, U.S. forces had
controlled Asadabad for 18 months, thus suggesting a likelihood of permanent
control. Third, as to permanence and substance, U.S. forces improved and
fortified Asadabad by adding buildings, power generators, and plumbing. Fourth,
as further proof of permanence, the U.S. used Asadabad to conduct military
operations just as they would other facilities in Afghanistan and around the
world.
Citation: United States v. Passaro, 577 F.3d 207 (4th Cir.
2009).
**** Patrick Michael Megaro is a partner at Halscott Megaro PA. His primary areas of practice are criminal defense, criminal appeals, post-conviction relief, civil appeals, and civil rights litigation. Attorney Profile at: https://solomonlawguild.com/patrick-michael-megaro; Attorney News at: https://attorneygazette.com/patrick-megaro%2C-esq#ab17a387-a757-4c0f-bc37-81f556fd15ea
