It goes without saying that killing an officer or employee of the United States is a punishable offense, but is that murder punishable if committed outside American territory? 18 USC § 1114 makes it illegal to kill or attempt to kill any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties. Federal courts have long avoided reading statutes as applicable on foreign soil, except when Congress clearly indicates as such, by using the canon of statutory interpretation known as the presumption against extraterritoriality. Some courts, however, have used a 1922 Supreme Court decision, United States v. Bowman, to justify applying § 1114 outside American borders.
Can 18 USC § 1114 criminalize killing or attempting to kill an officer or employee of the United States outside the territory of the United States?
The Second and Eleventh Circuits have applied 18 USC § 1114 extraterritorially, concluding that Congress would have intended it to do so. The D.C. Circuit declined to apply the statute extraterritorially, holding firm to the presumption against extraterritoriality.
Second and Eleventh Circuits
The Eleventh Circuit, in United States v. Benitez (1984), held that § 1114 has extraterritorial application. In Benitez, the defendant was convicted of conspiracy to murder DEA agents engaged in the performance of their official duties in Colombia, among other crimes. The court held that “assault and attempted murder of DEA agents is exactly the type of crime that Congress must have intended to apply extraterritorially.” The Eleventh Circuit upheld the district court’s judgment of conspiracy to murder the agents.
The Second Circuit, in United States v. Al Kassar (2011), also held that § 1114 has extraterritorial application. In Al Kassar, three defendants were convicted of conspiring to kill U.S officers in Spain and Romania. The Second Circuit read Bowman to mean “the presumption that ordinary acts of Congress do not apply extraterritorially does not apply to criminal statutes.” § 1114 has no explicit provision for application on foreign soil, therefore, according to Bowman, congressional intent must “be inferred from the nature of the offense.” The court held “the nature of the offense – protecting U.S. personnel from harm when acting in their official capacity – implies an intent that it applies outside of the United States.” The Second Circuit explained that this is because a significant number of those employees perform their duties on foreign soil. The court in Al Kassar affirmed the convictions and sentences.
The Second Circuit affirmed the application of territoriality to § 1114 in United States v. Siddiqui (2012). In Siddiqui, the defendant was convicted of attempted murder of U.S. nationals, officers, and employees, among other crimes. The court held, “we see no basis for expecting Congress to have intended to limit these protections to U.S. personnel acting within the United States only.” The nature of the offense, the court concluded, implies a congressional intent outside U.S. territory. The court in Siddiqui affirmed the convictions and sentence.
The D.C. Circuit, in United States v. Sota (2020), held that because § 1114 does not speak to extraterritorial application, one way or the other, the presumption against territoriality remains firm, and therefore does not apply beyond U.S. territory. In Sota, two defendants were convicted of killing an American law enforcement officer in Mexico, among other crimes. The court determined that the presumption against territoriality remained unrebutted because Congress had not “affirmatively and unmistakably instructed that the statute will” apply abroad. Congress passed § 1114 and nearby § 1116 in a single statute, the Antiterrorism and Effective Death Penalty Act of 1996. § 1116 criminalizes killing a U.S. officer or employee who is otherwise “entitled pursuant to international law to special protection against attack.” The court determined that §§ 1114 and 1116 must be read in pari materia, and therefore, “Congress’s explicit provision for extraterritorial jurisdiction in one provision (§ 1116) militates against inferring any such application for a closely related and nearby provision with no such signal (§ 1114).
The D.C. Circuit also concluded that the Second and Eleventh Circuits are misinterpreting Bowman because Bowman should be not be read so broad such that all criminal statutes can be applied extraterritorially. Instead, the D.C. Circuit asserted that Bowman stands for the notion that the presumption against extraterritoriality is rebutted if the criminal statutes in question would be greatly curtailed by scope and usefulness if limited to a strict territorial jurisdiction. The court in Sota vacated the defendants’ convictions under § 1114.
As of now, it does appear that an individual, especially a foreign national, may be able to avoid punishment for murdering an officer or employee of the United States on foreign soil, if convicted under the jurisdiction of the District of Columbia Circuit. This issue may only get resolved if, unfortunately, someone attempts to murder or does murder an officer or employee of the United States outside of American territory and the Supreme Court takes up the case.
Should the Supreme Court decide on this matter, we may find an interesting and surprising split between Justices. One would typically expect Republican-appointed Justices to side in favor of law and order and interpret § 1114 to apply extraterritorially. However, an intentionalist interpretation, more favored by Democratic-appointed Justices, would lean in favor of expanding the scope of the law beyond American borders, and a strict textualist interpretation would refrain from reading intent and instead focus on the words of the statute which have no reference to international jurisdiction. Nonetheless, this issue is unlikely to reach the Supreme Court any time soon and will probably continue to yield a growing split among the circuits.