Palestinian inmates greeted in east Jerusalem after release.
(photo credit: Marc Israel Sellem)
Under duress growing out of Hamas’s capture and refusal to release Gilad
Schalit, the Israeli government agreed to release 1027 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
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’
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
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.
Israel’s judicial system has now been frustrated by Hamas’ demands following the
illegal coercion of the Schalit 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
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 Schalit exchange, she is now free in Jordan.
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.
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 that 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 Schalit’s return to Israel would
vindicate American law and bring to fruition Congress’ intention to punish
killers of US citizens on foreign soil with life imprisonment.
is a Washington attorney who was a federal prosecutor and served as a Deputy
Assistant Attorney General in the United States Department of Justice.