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Defendants Motion to Dismiss for Lack of Jurisdiction

VIEWS: 214 PAGES: 50

									     Case 1:08-cr-00360-RMU           Document 34        Filed 01/13/2009      Page 1 of 3



                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
UNITED STATES OF AMERICA             )
                                    )
            v.                       )              No. 1:08-cr-360-RMU
                                    )
PAUL ALVIN SLOUGH,                   )
NICHOLAS ABRAM SLATTEN,              )
EVAN SHAWN LIBERTY,                  )
DUSTIN LAURENT HEARD, and            )
DONALD WAYNE BALL,                  )
                                    )
                  Defendants.        )
____________________________________)


        DEFENDANTS’ MOTION TO DISMISS FOR LACK OF JURISDICTION

       Pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B) and Local Criminal Rule 47,

Defendants, through counsel, respectfully move to dismiss the indictment for lack of jurisdiction.

A motions hearing on this matter is set for February 17, 2009 at 10:15 AM. A supporting memo-

randum of points and authorities and proposed order are filed herewith.

Dated: January 13, 2009


                                             Respectfully submitted,

                                                /s/ Mark J. Hulkower
                                             Mark J. Hulkower (No. 400463)
                                             Bruce C. Bishop (No. 437225)
                                             Michael J. Baratz (No. 480607)
                                             Steptoe & Johnson LLP
                                             1330 Connecticut Avenue, N.W.
                                             Washington, D.C. 20036-1795
                                             (202) 429-3000

                                             Counsel for Defendant Paul A. Slough
Case 1:08-cr-00360-RMU   Document 34     Filed 01/13/2009     Page 2 of 3



                                 /s/ Thomas G. Connolly
                              Thomas G. Connolly (No.420416)
                              Steven A. Fredley (No. 484794)
                              Harris, Wiltshire & Grannis LLP
                              1200 Eighteenth Street, N.W., Suite 1200
                              Washington, D.C. 20036
                              (202) 730-1300
                              Counsel for Defendant Nicholas A. Slatten

                                 /s/ William Coffield
                              William Coffield (No. 431126)
                              Coffield Law Group LLP
                              1330 Connecticut Ave. N.W. Suite 220
                              Washington, D.C. 20036
                              (202) 429-4799
                              Counsel for Defendant Evan S. Liberty

                                 /s/ David Schertler
                              David Schertler (No. 367203)
                              Danny Onorato (No. 480043)
                              Veronica R. Jennings (No. 981517)
                              Schertler & Onorato, L.L.P.
                              601 Pennsylvania Avenue NW
                              North Building - 9th Floor
                              Washington, D.C. 20004-2601
                              (202) 628-4199
                              Counsel for Defendant Dustin L. Heard

                                /s/ Steven J. McCool
                              Steven J. McCool (No. 429369)
                              Mallon & McCool, LLC
                              1776 K Street, N.W., Suite 200
                              Washington, D.C. 20006
                              Counsel for Defendant Donald W. Ball




                                 2
      Case 1:08-cr-00360-RMU          Document 34        Filed 01/13/2009       Page 3 of 3



                                  CERTIFICATE OF SERVICE

       I hereby certify that on this 13th day of January 2009, I caused the foregoing
Defendants’ Motion to Dismiss for Lack of Jurisdiction, Memorandum of Points and Authorities
in Support, Declaration of Mark J. Hulkower with accompanying exhibits and Proposed Order to
be filed with the Clerk of the Court using the CM/ECF system, which will send notification of
such filing to:


Kenneth C. Kohl
Jonathan M. Malis
United States Attorney’s Office
for the District of Columiba
555 Fourth Street, NW
Washington, DC 20530
ken.kohl@usdoj.gov
jonathan.m.malis@usdoj.gov




                                               /s/ Mark J. Hulkower
                                             Mark J. Hulkower
                                             Steptoe & Johnson LLP
                                             1330 Connecticut Avenue, NW
                                             Washington, DC 20036
   Case 1:08-cr-00360-RMU        Document 34-2   Filed 01/13/2009     Page 1 of 44



                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
UNITED STATES OF AMERICA             )
                                    )
            v.                       ) No. 1:08-cr-360-RMU
                                    )
PAUL ALVIN SLOUGH,                   )
NICHOLAS ABRAM SLATTEN,              )
EVAN SHAWN LIBERTY,                  )
DUSTIN LAURENT HEARD, and            )
DONALD WAYNE BALL,                  )
                                    )
                  Defendants.        )
____________________________________)

        MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
       DEFENDANTS’ MOTION TO DISMISS FOR LACK OF JURISDICTION

Mark J. Hulkower (No. 400463)                Thomas G. Connolly (No. 420416)
Bruce C. Bishop (No. 437225)                 Steven A. Fredley (No. 484794)
Michael J. Baratz (No. 480607)               Harris, Wiltshire & Grannis LLP
Steptoe & Johnson LLP                        1200 Eighteenth Street N.W., Suite 1200
1330 Connecticut Ave. N.W.                   Washington, D.C. 20036
Washington, D.C. 20036                        (202) 730-1300
(202) 429-3000                               Counsel for Defendant Nicholas A. Slatten
Counsel for Defendant Paul A. Slough

William Coffield (No. 431126)                David Schertler (No. 367203)
Coffield Law Group LLP                       Danny Onorato (No. 480043)
1330 Connecticut Ave. N.W. Suite 220         Veronica R. Jennings (No. 981517)
Washington, D.C. 20036                       Schertler & Onorato, LLP
(202) 429-4799                               601 Pennsylvania Avenue N.W.
Counsel for Defendant Evan S. Liberty        North Building – 9th Floor
                                             Washington, D.C. 20004-2601
                                             (202) 628-4199
                                             Counsel for Defendant Dustin L. Heard
Steven J. McCool (No. 429369)
Mallon & McCool, LLC
1776 K Street, N.W., Suite 200
Washington, D.C. 20006
Counsel for Defendant Donald W. Ball

Dated: January 13, 2009
      Case 1:08-cr-00360-RMU                       Document 34-2                  Filed 01/13/2009               Page 2 of 44



                                                  TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
STATEMENT OF FACTS ..............................................................................................................4
          A.         Facts Pled By the Government ................................................................................4
          B.         Facts Relevant to Jurisdiction Under the Military
                     Extraterritorial Jurisdiction Act ...............................................................................6
                     1.         The State Department WPPS II Contract.....................................................6
                     2.         The Blackwater Independent Contractor Service Agreement .....................7
                     3.         State Department Letters of Authorization ..................................................8
ARGUMENT...................................................................................................................................9
Because Defendants’ Contract Employment Supported the Department of State, Not the
      Department of Defense, Their Conduct in a Foreign Sovereign Country Does Not Fall
      Within American Jurisdiction Under the Military Extraterritorial Jurisdiction Act............9
I.        Governing Legal Principles .................................................................................................9
          A.         Dismissal For Lack of Jurisdiction Is Appropriate On a Pretrial
                     Motion to Dismiss....................................................................................................9
          B.         The Military Extraterritorial Jurisdiction Act ........................................................12
II.       The Military Extraterritorial Jurisdiction Act Does Not Cover the Defendants, Whose
          Contract Employment by the State Department Did Not Support the Mission of the
          Department of Defense Overseas.......................................................................................17
          A.         The Plain Language of the Military Extraterritorial Jurisdiction Act Does Not
                     Reach the Defendants ............................................................................................17
          B.         The Military Extraterritorial Jurisdiction Act, a Criminal Statute, Must Be
                     Construed Strictly ..................................................................................................24
          C.         The Sparse Legislative History of the Military Extraterritorial Jurisdiction Act
                     Does Not Support Extraterritorial Jurisdiction Here .............................................26
                     1.         Legislative History Cannot Be Used to Broaden the Reach of an
                                Unambiguous Criminal Statute..................................................................26
                     2.         If Relevant, the Legislative History of the Military Extraterritorial
                                Jurisdiction Act Demonstrates the Absence of Jurisdiction ......................28
          D.         Even if the Act Were Somehow Ambiguous, the Rule of Lenity Would Apply...33
CONCLUSION..............................................................................................................................36




                                                                     i
     Case 1:08-cr-00360-RMU                     Document 34-2               Filed 01/13/2009              Page 3 of 44




                                            TABLE OF AUTHORITIES

                                                                                                                        Page(s)
CASES

Alliance for Democracy v. F.E.C., 362 F. Supp. 2d 138 (D.D.C. 2005) .......................................12

Almendarez-Torres v. United States, 523 U.S. 224 (1998) ...........................................................29

Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) ................................32

Arlington Cent. Sch. Dist. v. Murphy, 548 U.S. 291 (2006) ....................................................17, 18

Bancoult v. McNamara, 445 F.3d 427 (D.C. Cir. 2006)..................................................................9

Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002)......................................................................18

Barr v. Matteo, 360 U.S. 564 (1959) .............................................................................................20

Bell v. United States, 349 U.S. 81 (1955) ......................................................................................34

Bifulco v. United States, 447 U.S. 381 (1980) ...............................................................................27

Caminetti v. United States, 242 U.S. 470 (1917)...........................................................................17

Conn. Nat’l Bank v. Germain, 503 U.S. 249 (1992)......................................................................17

Crandon v. United States, 494 U.S. 152 (1990) ......................................................................27, 35

Dodd v. United States, 545 U.S. 353 (2005)............................................................................17, 18

EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991) ..............................................................13, 32

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005)..............................................27

Fasulo v. United States, 272 U.S. 620 (1926) ...............................................................................25

Foley Bros. v. Filardo, 336 U.S. 281 (1949) .................................................................................13

Garcia v. United States, 469 U.S. 70 (1984) .................................................................................28

Hartford Underwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1 (2000)..........................17, 26

Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192 (D.C. Cir. 1992) ..............................................12

Hughes Aircraft Co. v. Jacobson, 525 U.S. 432 (1999) ................................................................17

Hughey v. United States, 495 U.S. 411 (1990) ........................................................................27, 35
                                                                ii
         Case 1:08-cr-00360-RMU                      Document 34-2                 Filed 01/13/2009              Page 4 of 44



    Judicial Watch v. U.S. Senate, 340 F. Supp. 2d 26 (D.D.C. 2004)..................................................9

    Kowal v. MCI, 16 F.3d 1271, 1276 (D.C. Cir. 1994) ....................................................................11

    Ladner v. United States, 358 U.S. 169 (1958) ...............................................................................36

    Lamie v. U.S. Trustee, 540 U.S. 526 (2004) ..................................................................................17

*   McBoyle v. United States, 283 U.S. 25 (1931) ........................................................................25, 26

    McNally v. United States, 483 U.S. 350 (1987) ......................................................................25, 33

    Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67 (2d Cir. 1998) ............................................20

    Ratzlaf v. United States, 510 U.S. 135 (1994) .........................................................................27, 35

    Rewis v. United States, 401 U.S. 808 (1971) .................................................................................35

    Robinson v. Shell Oil Co., 519 U.S. 337 (1997) ............................................................................18

    Rubin v. United States, 449 U.S. 424 (1981) .................................................................................17

    Russell v. United States, 369 U.S. 749 (1962) ...............................................................................11

    Sale v. Haitian Ctrs. Council, 509 U.S. 155 (1993) ......................................................................13

    Scheidler v. N.O.W., 537 U.S. 393 (2003) .....................................................................................35

    Simpson v. United States, 435 U.S. 6 (1978) .................................................................................35

    Small v. United States, 544 U.S. 385 (2005) .................................................................................13

*   Smith v. United States, 507 U.S. 197 (1993) ...........................................................................13, 32

    Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)............................................................9

    Tanner v. United States, 483 U.S. 107 (1987) ...............................................................................36

    Taylor v. FDIC, 132 F.3d 753 (D.C. Cir. 1997) ............................................................................11

    Tenet v. Doe, 544 U.S. 1 (2005) ......................................................................................................9

    Train v. City of New York, 420 U.S. 35 (1975)..............................................................................26

    United States v. Anderson, 59 F.3d 1323 (D.C. Cir. 1995) ...........................................................34

    United States v. Barnes, 295 F.3d 1354 (D.C. Cir. 2002) .......................................................26, 28

*   United States v. Bass, 404 U.S. 336 (1971) .......................................................................24, 33, 34


                                                                      iii
         Case 1:08-cr-00360-RMU                   Document 34-2               Filed 01/13/2009             Page 5 of 44



* United States v. Bowman, 260 U.S. 94 (1922)...............................................................................14

    United States v. Campos-Serrano, 404 U.S. 293 (1971) ...............................................................25

    United States v. Delgado-Garcia, 374 F.3d 1337 (D.C. Cir. 2004) ..............................................14

*   United States v. Dransfield, 913 F. Supp. 702 (E.D.N.Y. 1996) .............................................10, 12

    United States v. Enmons, 410 U.S. 396 (1973)..............................................................................35

*   United States v. Gatlin, 216 F.3d 209 (2d Cir. 2000) ....................................................................13

    United States v. Granderson, 511 U.S. 39 (1994) .........................................................................35

    United States v. Hess, 124 U.S. 483 (1888)...................................................................................11

    United States v. Laton, 352 F.3d 286 (6th Cir. 2003)....................................................................28

    United States v. Logan, 453 F.3d 804 (7th Cir. 2006) ...................................................................27

*   United States v. McGoff, 831 F.2d 1071 (D.C. Cir. 1987).................................................26, 27, 28

*   United States v. Naegele, 367 B.R. 1 (D.D.C. 2007)...............................................................10, 12

    United States v. Nofziger, 878 F.2d 442 (D.C. Cir. 1989) .............................................................34

    United States v. Oakar, 111 F.3d 146 (D.C. Cir. 1997).................................................................12

    United States v. Oregon, 366 U.S. 643 (1961) ..............................................................................28

    United States v. R.L.C., 503 U.S. 291 (1992) ................................................................................27

    United States v. Resnick, 299 U.S. 207 (1936) ..............................................................................25

    United States v. Ron Pair Enters., 489 U.S. 235 (1989)................................................................17

    United States v. Santos, 128 S. Ct. 2020 (2008) ............................................................................34

    United States v. Singleton, 182 F.3d 7 (D.C. Cir. 1999)................................................................35

*   United States v. Syring, 522 F. Supp. 2d 125 (D.D.C. 2007) ............................................10, 11, 12

    United States v. Universal C.I.T. Credit Corp., 344 U.S. 218 (1952) ...........................................34

*   United States v. Villanueva-Sotelo, 515 F.3d 1234 (D.C. Cir. 2008) ..............17, 18, 26, 28, 29, 35

* United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820) .....................................................24, 26

*   United States v. Yakou, 428 F.3d 241 (D.C. Cir. 2005)...........................................................10, 12


                                                                  iv
         Case 1:08-cr-00360-RMU                           Document 34-2                   Filed 01/13/2009                 Page 6 of 44



    United States v. Yunis, 924 F.2d 1086 (D.C. Cir. 1991), aff’g 681 F. Supp. 896 (D.D.C.
       1988) ........................................................................................................................................14

    Wilson v. Libby, 535 F.3d 697 (D.C. Cir. 2008) ..............................................................................9

    United States v. Espy, 145 F.3d 1369 (D.C. Cir. 1998) .................................................................12

*   Zaimi v. United States, 476 F.2d 511 (D.C. Cir. 1973) ...........................................................25, 34



    ACTS

    Pub. L. No. 106-523, § 2(a), 114 Stat. 2448, 2491 ............................................................15, 29, 31



    STATUTES

    18 U.S.C. § 7..................................................................................................................................13

    18 U.S.C. § 666..............................................................................................................................10

    18 U.S.C. § 924(c)(1).....................................................................................................................15

    18 U.S.C. § 1112(b) .......................................................................................................................15

    18 U.S.C. § 1113............................................................................................................................15

    18 U.S.C. § 1346............................................................................................................................25

    18 U.S.C. § 3236............................................................................................................................14

    18 U.S.C. § 3238..............................................................................................................................5

    18 U.S.C. § 3261................................................................................................................2, 5, 6, 15

*   18 U.S.C. § 3267....................................................................................2, 3, 5, 6, 11, 15, 16, 18, 29

    22 U.S.C. §§ 4801, et seq. .............................................................................................................19

    22 U.S.C. § 4802............................................................................................................................19

    Omnibus Diplomatic Security and Antiterrorism Act of 1986, Pub. L. No. 99-399; 22
      U.S.C. §§ 4801, et seq. (1986))................................................................................................19




                                                                            v
     Case 1:08-cr-00360-RMU                          Document 34-2                   Filed 01/13/2009                 Page 7 of 44



LEGISLATIVE MATERIALS

S. Amend. 2084, 110th Cong. (July 11, 2007) (proposed amendment to H.R. 1585 §
    876(c)(1)); Vol. 153 Cong. Rec. S9043 (daily ed. July 11, 2007) ......................................3, 32



RULES

Fed. R. Civ. P. 12(b)(1)............................................................................................................ 11-12

Fed. R. Crim. P. 12(b)(2) ......................................................................................................... 10-11

Fed. R. Crim. P. 12(b)(3)(B).................................................................................................... 10-11



BOOKS AND ARTICLES

Glenn R. Schmitt, Closing the Gap in Criminal Jurisdiction Over Civilians
   Accompanying the Armed Forces Abroad—A First Person Account of the Creation of
   the Military Extraterritorial Jurisdiction Act of 2000, 51 Cath. U. L. Rev. 55, 72
   (2001).......................................................................................................................................13

H. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196
   (1967).......................................................................................................................................24



MISCELLANEOUS

Congressional Budget Office, Contractors’ Support of U.S. Operations in Iraq
   (Aug. 2008) ..........................................................................................................................3, 31

Department of State, Report of the Secretary of State’s Panel on Personal Protective
   Services in Iraq, Oct. 2007 ..................................................................................................3, 23

Government Accountability Office, REBUILDING IRAQ: Actions Needed to Improve
   Use of Private Security Providers, Report to Congressional Committees, GAO-05-
   737 (July 2005) ........................................................................................................................22

U.S. Department of State Foreign Affairs Manual Volume 12—Diplomatic Security at 2
   (12 FAM 010) ..........................................................................................................................19

United States Department of Defense, “DoD 101,” available at http://www.defenselink.
   mil./pubs/dod101/dod101.html ..................................................................................................3




                                                                       vi
    Case 1:08-cr-00360-RMU               Document 34-2            Filed 01/13/2009          Page 8 of 44



United States Department of State, “FY 2007-2012 Department of State and USAID
   Strategic Plan,” available at
   http://www.state.gov/s/d/rm/rls/dosstrat/2007/html/82950.htm ................................................2




                                                      vii
    Case 1:08-cr-00360-RMU           Document 34-2         Filed 01/13/2009       Page 9 of 44



                                        INTRODUCTION

       Using unprecedented tactics, the United States Department of Justice has charged

American civilians defending their lives in a foreign war zone with criminal offenses under U.S.

law. Compounding the unprecedented nature of this prosecution, the Government has charged

State Department security contractors with 30-year-mandatory-minimum firearm offenses for

using firearms selected and issued by the U.S. Government, which the State Department

required them to carry. Most fatally to its effort to break new ground in extraterritorial

prosecution, the Government has based jurisdiction over conduct that occurred in wartime Iraq

on a statute that by its plain terms does not apply to these Defendants.

       Donald Ball, Dustin Heard, Nicholas Slatten, Paul Slough, and Evan Liberty are young

American men—distinguished, decorated veterans of the U.S. military—engaged by Blackwater

USA to provide protection to U.S. State Department personnel deployed in Iraq. On September

16, 2007, a massive car bomb detonated near an Iraqi government building outside the Green

Zone where an American civilian was visiting under the protection of a Blackwater security

detail operating under the command of the U.S. Embassy’s Regional Security Officer, part of the

Department of State. The Defendants are members of a second Blackwater detail (“Raven 23”),

also under State Department command, that responded to facilitate the safe return of the

American civilian and her Blackwater protectors.

       Raven 23 proceeded to Nisur Square, also outside the Green Zone and near the scene of

the explosion, to secure the traffic circle there and allow the safe passage of the first Blackwater

detail. Shortly after Raven 23 entered Nisur Square, it was threatened by what its members

perceived to be a vehicle borne improvised explosive device, i.e., a car bomb attack. Raven 23

became engaged in a two-way firefight in which it is alleged that several Iraqi non-combatants

were killed or wounded. The disputed circumstances of that firefight are at the heart of this case.
                                                  1
   Case 1:08-cr-00360-RMU           Document 34-2         Filed 01/13/2009       Page 10 of 44



       This Court need not resolve any dispute regarding the Nisur Square firefight, however,

for a simple reason: the statute on which the Government relies for extraterritorial jurisdiction

plainly does not reach the Defendants in this case. That statute, the Military Extraterritorial

Jurisdiction Act, 18 U.S.C. §§ 3261 et seq. (2006), extends the reach of American criminal laws,

which ordinarily do not apply beyond U.S. borders, to cover contractors who work for the De-

partment of Defense or whose work for another federal agency supports the mission of the

Department of Defense overseas. 18 U.S.C. § 3267(1)(A)(ii)(II).

       The Defendants here do not fall within the plain and unambiguous terms of the Military

Extraterritorial Jurisdiction Act, because their contractual work did not support the mission of the

Department of Defense. Their contractual mission—performed pursuant to a contract with the

State Department, under the supervision of State Department officers—is to provide armed

protection to civilian State Department personnel. Although Department of State personnel

must travel and work in dangerous, hostile areas of Iraq, and consequently need armed protec-

tion, the mission of the State Department—to “[c]reate a more secure, democratic, and prosper-

ous world for the benefit of the American people and the international community”1—is very

different from the Defense Department’s mission “to provide the military forces needed to deter

war and to protect the security of our country.”2 The specific contract work at issue here—the

provision of diplomatic security—is a diplomatic, not military, function.




       1
          United States Department of State, “FY 2007-2012 Department of State and USAID
Strategic Plan,” available at http://www.state.gov/s/d/rm/rls/dosstrat/2007/html/82950.htm
(“State Strategic Plan”) (attached hereto as Exhibit 1 to the Declaration of Mark J. Hulkower
(“Hulkower Decl.”)).
        2
          United States Department of Defense, “DoD 101,” available at http://www.defenselink.
mil./pubs/dod101/dod101.html (attached hereto as Ex. 2 to the Hulkower Decl).


                                                 2
   Case 1:08-cr-00360-RMU           Document 34-2          Filed 01/13/2009       Page 11 of 44



       Indeed, after Congress amended the Military Extraterritorial Jurisdiction Act in 2004 to

reach contractors of non-Defense agencies whose work “relates to supporting the mission of the

Department of Defense overseas,” 18 U.S.C. § 3267(1)(A)(ii)(II), the nonpartisan Congressional

Budget Office concluded that the Act’s explicit coverage of contractors supporting the mission

of the Department of Defense would not reach security contractors working for the Department

of State.3 Similarly, a blue-ribbon panel assembled by Secretary of State Condoleeza Rice and

led by Ambassador Patrick F. Kennedy that reviewed the provision of personal protective ser-

vices in Iraq after the Nisur Square firefight concluded that it was “unaware of any basis for

holding non-Department of Defense contractors accountable under US law,” including the Mili-

tary Extraterritorial Jurisdiction Act.4 Prior to the Nisur Square incident, then-Senator Obama

had sponsored a new amendment to the Military Extraterritorial Jurisdiction Act that, had it

passed, would have expressly extended U.S. criminal law to any federal contractors performing

work in wartime Iraq.5 That failed amendment reflects congressional understanding that at the

time of the Nisur Square incident (and still today), the Military Extraterritorial Jurisdiction Act

did not (and does not) reach contractors like the Defendants whose employment in Iraq sup-

ported the mission of a government department other than the Department of Defense.

       Because the Defendants’ contractual employment supported the Department of State, not

the Department of Defense, the Defendants are not covered by the Military Extraterritorial Juris-


       3
          See Congressional Budget Office, Contractors’ Support of U.S. Operations in Iraq 24
(Aug. 2008) (quoted infra at 31).
        4
          See Department of State, Report of the Secretary of State’s Panel on Personal Protec-
tive Services in Iraq, Oct. 2007, at 5, 7 (the “Kennedy Report”) (Principal Finding No. 4). A full
copy of the Kennedy Report is attached hereto as Exhibit 19 to the Hulkower Declaration.
        5
          S. Amend. 2084, 110th Cong. (July 11, 2007) (proposed amendment to H.R. 1585 §
876(c)(1)); Vol. 153 Cong. Rec. S9043 (daily ed. July 11, 2007) (attached hereto as Ex. 20 to the
Hulkower Decl.).


                                                  3
   Case 1:08-cr-00360-RMU            Document 34-2        Filed 01/13/2009       Page 12 of 44



diction Act. That Act is the exclusive jurisdictional hook alleged in the Indictment for applying

American criminal law to reach undisputedly extraterritorial conduct. Because the Military

Extraterritorial Jurisdiction Act does not confer jurisdiction over the offenses alleged in the

Indictment, the Indictment must be dismissed.

                                     STATEMENT OF FACTS

       The Defendants vigorously dispute the allegations in the Indictment, and will prove their

innocence at trial if called upon to do so. Even taking the factual allegations in the Indictment as

true, however, as a matter of law this Court does not have jurisdiction here under the Military

Extraterritorial Jurisdiction Act.

       A.      Facts Pled By the Government

       The Defendants are subcontractors of Blackwater Worldwide, which was contracted by

the United States Department of State to provide personal security services for State Department

personnel in the Republic of Iraq. Indictment ¶ 1.a; see also Gov. Omnibus Resp. to Def. Mot.

for Prob. Cause Hrg., at 4 (“Gov. Resp.”) (quoted infra).6 The Indictment charges the Defen-

dants with fourteen counts of manslaughter (Counts 1-14, Indictment at 2-3), nineteen counts of

attempted manslaughter (Counts 15-34, Indictment at 3-5), and one count of using a firearm

during and in relation to a crime of violence (Count 35, Indictment at 5-6).

       The charges in the Indictment arise out of a firefight that occurred on September 16, 2007

at the Nisur Square traffic circle in Baghdad, Iraq. The Government has described the facts

underlying the charges as follows:




       6
          Relevant excerpts of the Government’s Response, filed December 8, 2008 in the Dis-
trict of Utah (United States v. Slough, et al., No. 2:08-mj-350 PMW (D. Utah), Dkt. 28), are
attached as Hulkower Decl. Ex. 17.


                                                  4
   Case 1:08-cr-00360-RMU           Document 34-2         Filed 01/13/2009       Page 13 of 44



             The indictment arises from a shooting incident that occurred on September
             16, 2007 at the Nisur Square traffic circle in the city of Baghdad, in the
             Republic of Iraq. Nisur Square is located just outside a fortified area of
             central Baghdad known as the “International Zone” (also commonly known
             as the “Green Zone”), where most, if not all, of the foreign embassies in Iraq
             are located, including the United States Embassy.

             As alleged in the indictment, at the time of the charged offenses the
             defendants were independent contractors and employees of Blackwater
             Worldwide, a contractor of the United States Department of State (“DOS”).
             The defendants’ employment with Blackwater Worldwide was to provide
             personal security services for DOS diplomats and other United States
             Government personnel in Iraq . . . .

             On September 16, 2007, the defendants [and others7] were assigned to a
             convoy of four heavily-armored trucks known as a Tactical Support Team,
             using the call sign “Raven 23,” whose function was to provide back-up fire
             support for other Blackwater personal security details operating in the city of
             Baghdad. The defendants were armed with, among other weapons, an SR-25
             sniper rifle, machine guns (that is, M-4 assault rifles and M-240 machine
             guns), and destructive devices (that is, grenade launchers and grenades).

Gov. Resp. at 4 (emphasis added). The Defendants became involved in a firefight in and around

Nisur Square in Baghdad, during which a number of Iraqi civilians allegedly died or were in-

jured. Id.

       For jurisdiction over Defendants’ undisputedly extraterritorial acts, the Government relies

on the Military Extraterritorial Jurisdiction Act, 18 U.S.C. §§ 3261 et seq. (2006). See Indict-

ment ¶¶ 5, 7, 9 (alleging offenses took place in Iraq, and invoking § 3261(a)). Quoting the stat-

ute, § 3267(1)(a)(ii)(II),8 the Indictment alleges that the Defendants’ “employment related to

supporting the mission of the United States Department of Defense in the Republic of Iraq.”

       7
           The others referred to in the Government’s Response include thirteen Blackwater sub-
contractors who are not charged with wrongdoing, and one Blackwater subcontractor, Jeremy
Ridgeway, who is cooperating with the Government. Gov. Resp. at 4. The Government’s char-
acterization of Ridgeway as a joint offender with these Defendants, id., is a legal characterization
that is disputed in connection with Defendants’ separately filed challenge to venue under 18
U.S.C. § 3238.
         8
           The statute is quoted in relevant part at pages 15-16, infra.


                                                 5
   Case 1:08-cr-00360-RMU           Document 34-2        Filed 01/13/2009       Page 14 of 44



Indictment ¶ 1.a.9 Other than naming the country of Iraq, this statutory quotation states a pure

legal conclusion, containing no facts that state in what way Defendants’ employment allegedly

related to supporting the mission of the Department of Defense.

       B.        Facts Relevant to Jurisdiction Under the Military Extraterritorial Jurisdic-
                 tion Act

       The Defendants are independent subcontractors who were engaged by Blackwater

Security Consulting, LLC to provide armed protective services to civilian State Department

personnel in Iraq, pursuant to contracts between Blackwater and the State Department. The

Defendants were engaged in that contractual mission of providing security for a USAID official

when they entered Nisur Square. See Indictment ¶ 1.a; Gov. Resp. at 4 (quoted supra).

       Each Defendant’s provision of security services to State Department civilians and

government dignitaries was governed by three relevant contracts. Under each contract, it is clear

that the Defendants’ mission was to provide services to the Department of State, not the

Department of Defense.

                 1.     The State Department WPPS II Contract

       The State Department’s Worldwide Personal Protective Services II Contract (“WPPS II”)

is the umbrella contract that governed Blackwater’s provision of protective services to the State

Department. It provides that “[t]he Contractor [here, Blackwater], including all Contractor

personnel accomplishing work under this contract [here, Defendants] shall accomplish all work

under this contract in compliance with the direction provided by the Department of State [Con-

tracting Officer, Contracting Officer’s Representative], or Agent in Charge.” Hulkower Decl.,

Ex. 4 § 4.1.2.

       9
          Accord Gov. Resp. at 4 (“The defendants’ employment as Blackwater contractors re-
lated to supporting the mission of the Department of Defense in Iraq.”) (Hulkower Decl. Ex. 17).


                                                 6
   Case 1:08-cr-00360-RMU          Document 34-2         Filed 01/13/2009      Page 15 of 44



       The relevant task order of the WPPS II Contract here was Task Order 6, which governed

the provision of personal protective services to U.S. Embassy personnel under the authority of

the Chief of Mission in the Baghdad area of operations.10 Under Task Order 6, Blackwater has

exclusive responsibility for the provision of personal protective services for State Department

civilians in Baghdad, under the direction of the Chief of Mission and the Regional Security

Officer for the U.S. Embassy-Baghdad—both of whom are State Department officials. Task

Order 6 provides that contractors, including Blackwater, would operate as part of the “large

protective services operation in Iraq” established by the Diplomatic Security arm of the State

Department.

               2.     The Blackwater Independent Contractor Service Agreement

       The Independent Contractor Service Agreement (“IC Service Agreement”) is the individ-

ual contract between Blackwater and each of its Independent Contractors (“IC’s”), including

each of the Defendants. The IC Service Agreement governed the scope of each Defendant’s

provision of services in support of Blackwater’s contract with the State Department. Here, each

Defendant’s sole function and exclusive contractual obligation under his IC Service Agreement

was to support Task Order 6 of the WPPS II Contract—i.e., to provide personal protective ser-

vices to State Department civilians in the Baghdad area of operations under the control of the

Chief of Mission and the Regional Security Officer, U.S. Embassy-Baghdad.

       “Schedule A” to each Defendant’s IC Service Agreement specifies that the Defendant

was engaged by Blackwater “in support of the US Department of State Diplomatic Security
       10
          An excerpt of Task Order 6, as it existed at the time of the alleged events covered by
the Indictment, is attached as Exhibit 3 to the Hulkower Declaration. An excerpt of the WPPS II
Contract between Blackwater and the Department of State, as it existed at the time of the alleged
events covered by the Indictment, is attached as Exhibit 4 to the Hulkower Declaration. A full
copy of the WPPS II Contract (two large binders) is available should the Court desire a complete
copy.


                                                7
   Case 1:08-cr-00360-RMU           Document 34-2        Filed 01/13/2009      Page 16 of 44



Mission Contract.” See, Hulkower Decl., Exs. 5, 13-16, Sched. A ¶ 1. Each Defendant’s IC

Service Agreement also refers to an applicable State Department travel policy by which Defen-

dants were required to abide. See id., Sched. A ¶ 5. No IC Service Agreement for any Defen-

dant here makes any reference whatsoever to the Department of Defense or its mission in Iraq.

               3.     State Department Letters of Authorization

       The Department of State issued each Defendant a Letter of Authorization (“Contractor

LOA”) prior to his arrival in Iraq. See Hulkower Decl., Exs. 6-10. The Contractor LOAs ex-

pressly limit the scope of the Defendants’ contracts to supporting the tasks of the Department of

State in Iraq. The Contractor LOAs note that the Defendants were traveling “under the require-

ments of a Department of State contract within Iraq,” and further provide that the Defendants’

purpose in traveling to Iraq was to provide “Department of State Diplomatic Security.” See, e.g.,

Hulkower Decl., Ex. 6 ¶¶ 1, 1(k).

       Paragraph 2(c) of the Contractor LOAs authorized the Defendants to carry Government-

owned weapons “in support of the U.S. Department of State Worldwide Personal Protective

Services Contract.” See id. ¶ 2(c). There is no reference whatsoever to the Defendants providing

any support to the Department of Defense’s mission in Iraq. Indeed, the points of contact in the

Contractor LOAs are a Blackwater employee and the “Department of State, Diplomatic Security

Services, High Threat Protection Division Office.” Id. ¶ 2(h).




                                                8
     Case 1:08-cr-00360-RMU          Document 34-2         Filed 01/13/2009       Page 17 of 44



                                           ARGUMENT

             Because Defendants’ Contract Employment Supported the Department
             of State, Not the Department of Defense, Their Conduct in a Foreign
             Sovereign Country Does Not Fall Within American Jurisdiction Under
             the Military Extraterritorial Jurisdiction Act

I.      Governing Legal Principles

        A.      Dismissal For Lack of Jurisdiction Is Appropriate On a Pretrial
                Motion to Dismiss

        The “first and fundamental question” a federal court must decide is whether it has juris-

diction over the case. Bancoult v. McNamara, 445 F.3d 427, 432 (D.C. Cir. 2006) (citing Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)). “The requirement that jurisdiction be

established as a threshold matter ‘spring[s] from the nature and limits of the judicial power of the

United States’ and is ‘inflexible and without exception.’” Id. (quoting Steel Co., 523 U.S. at 94-

95). Thus, the Court must “‘address questions pertaining to [its] jurisdiction before proceeding

to the merits.’” Id. (quoting Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005)); accord Wilson v. Libby, 535

F.3d 697, 703 (D.C. Cir. 2008); Judicial Watch v. U.S. Senate, 340 F. Supp. 2d 26, 30 (D.D.C.

2004) (“The Court . . . cannot proceed to the merits of Plaintiff’s claims without first dispensing

with Defendants’ jurisdictional arguments.”). In this case, the Military Extraterritorial Jurisdic-

tion Act is a jurisdictional statute (as well as a substantive one), and it is incumbent upon the

Court to determine whether the undisputedly extraterritorial acts alleged in the Indictment fall

within U.S. jurisdiction under the Act.

        Under Federal Rule of Criminal Procedure 12(b)(2), the Court may grant a pretrial mo-

tion to dismiss based on any defense “that the Court can determine without a trial of the general

issue,” id., including lack of jurisdiction, Rule 12(b)(3)(B). “The ‘general issue’ has been de-

fined as ‘evidence relevant to the question of guilt or innocence.’” United States v. Yakou, 428

F.3d 241, 246 (D.C. Cir. 2005) (citations omitted); accord United States v. Syring, 522 F. Supp.

                                                  9
   Case 1:08-cr-00360-RMU           Document 34-2         Filed 01/13/2009       Page 18 of 44



2d 125, 127-28 (D.D.C. 2007). Courts in this Circuit have decided the following issues on pre-

trial motions to dismiss in criminal cases: whether a defendant was a “U.S. person” subject to

arms control laws, Yakou, 428 F.3d at 246-47; whether a reasonable jury could conclude that a

charged communication was a “true threat” under the First Amendment, Syring, 522 F. Supp. 2d

at 127-28; and whether an allegedly perjurious statement was filed with the bankruptcy court as

required by the relevant statute, United States v. Naegele, 367 B.R. 1, 9, 13-14 (D.D.C. 2007);

see also United States v. Dransfield, 913 F. Supp. 702, 706-07 (E.D.N.Y. 1996) (holding, in

bribery prosecution under 18 U.S.C. § 666, that whether the agency at issue received the federal

funding required under § 666(b) went to whether the statute applied to cover defendants’ con-

duct, not to the general issue of guilt or innocence, and consequently was determinable on a

pretrial motion to dismiss).

       Here, the issue of whether the Defendants’ contract employment “relate[d] to supporting

the mission of the Department of Defense” goes to whether the Military Extraterritorial Jurisdic-

tion Act extends U.S. jurisdiction over them. Although it is also a substantive element of the

offense (like “U.S. person” status in Yakou, a “true threat” in Syring, a bankruptcy court filing in

Naegele, or requisite federal funding in Dransfield), the nature of Defendants’ contractual mis-

sion may be determined without trial of the facts concerning whether the Defendants are guilty

or innocent of manslaughter, attempted manslaughter, and firearms offenses as alleged in the

Indictment.

       In reviewing a pretrial motion to dismiss, the Court takes all factual allegations in the

Indictment to be true. Syring, 522 F. Supp. 2d at 128 (citation omitted). However, the Court

“need not . . . accept legal conclusions cast in the form of factual allegations.” Kowal v. MCI, 16




                                                 10
   Case 1:08-cr-00360-RMU            Document 34-2         Filed 01/13/2009        Page 19 of 44



F.3d 1271, 1276 (D.C. Cir. 1994); accord Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997).11

Thus, the Indictment’s verbatim quotation of the statutory language providing jurisdiction (here,

that Defendants’ employment “related to supporting the mission of the Department of Defense,”

18 U.S.C. § 3267(1)(A)(ii)(II); Indictment ¶ 1.a) is not conclusive on a motion to dismiss.

Rather, just as “it is not sufficient that the indictment shall charge the offence in the same generic

terms as in the [statute]; but it must state the species; it must descend to the particulars,” United

States v. Hess, 124 U.S. 483, 486 (1888); accord Russell v. United States, 369 U.S. 749, 765

(1962), so also the Court must look to the Indictment’s factual allegations, not its legal conclu-

sions, to determine whether the Indictment invokes the Court’s jurisdiction. “[F]acts are to be

stated, not conclusions of law alone.” Hess, 124 U.S. at 486.

       Moreover, although a court evaluating the sufficiency of an indictment is ordinarily

limited to the four corners of the indictment, in cases where the material facts are not disputed

and only issues of law are presented, the Court may determine such issues of law on a pretrial

motion to dismiss. Yakou, 428 F.3d at 247 (collecting case law).12 Particularly when necessary

to determine threshold jurisdictional issues, the Court may consider evidence outside the Indict-

ment. See Yakou, 428 F.3d at 246-47 (noting Government provided discovery and litigated issue

of Defendant’s “U.S. person” status); Naegele, 367 B.R. at 5-9, 14 (analyzing affidavits and

testimony to determine that signature page containing oath was never submitted to bankruptcy


       11
           Though Kowal and Taylor are civil cases, both Criminal Rule 12 and Civil Rule 12 au-
thorize, in similar terms, motions to dismiss an initial pleading for lack of jurisdiction. Compare
Fed. R. Crim. P. 12(b)(2), (3)(B) with Fed. R. Civ. P. 12(b)(1). The standard for evaluating a
motion to dismiss an initial pleading for lack of jurisdiction should apply at least as strongly in
criminal cases, where a defendant’s liberty is at stake, as in civil actions for damages.
        12
           See also Syring, 522 F. Supp. 2d at 128 (citing Yakou, United States v. Espy, 145 F.3d
1369, 1370 (D.C. Cir. 1998), and United States v. Oakar, 111 F.3d 146, 147-50 (D.C. Cir.
1997)).


                                                  11
   Case 1:08-cr-00360-RMU           Document 34-2          Filed 01/13/2009       Page 20 of 44



court)); Dransfield, 913 F. Supp. at 708 (evaluating agency contracts proffered by Government

to determine whether agency federal funding required by jurisdictional element of statute).

        Thus, in this case, to determine whether Defendants’ contractual employment placed

them within the reach of the jurisdictional statute, the Court may consider the contracts them-

selves, which are attached to the accompanying Hulkower Declaration. See Dransfield, 913 F.

Supp. at 708; see also Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992) (in

considering motion to dismiss for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1), “the court

may consider the complaint supplemented by undisputed facts evidenced in the record, or the

complaint supplemented by undisputed facts plus the court’s resolution of disputed facts”);

Alliance for Democracy v. F.E.C., 362 F. Supp. 2d 138, 142 (D.D.C. 2005) (under Civil Rule

12(b)(1), the court is not limited by the allegations set forth in the complaint, “but may also

consider material outside the pleadings in its effort to determine whether the court has jurisdic-

tion in the case”).

        B.      The Military Extraterritorial Jurisdiction Act

        “It is a longstanding principle of American law ‘that legislation of Congress, unless a

contrary intent appears, is meant to apply only within the territorial jurisdiction of the United

States.’” Smith v. United States, 507 U.S. 197, 204 (1993); accord Small v. United States, 544

U.S. 385, 388 (2005) (“Congress ordinarily intends its statutes to have domestic, not extraterrito-

rial, application.”); EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) (“Aramco”); Foley

Bros. v. Filardo, 336 U.S. 281, 285 (1949). Federal courts have long presumed that “Congress

legislates against the backdrop of the presumption against extraterritoriality.” Smith, 507 U.S. at

204; accord Sale v. Haitian Ctrs. Council, 509 U.S. 155, 173 (1993) (courts presume “that Acts

of Congress do not ordinarily apply outside our borders”); Aramco, 499 U.S. at 248. This

“canon of construction . . . serves to protect against unintended clashes between our laws and
                                                 12
   Case 1:08-cr-00360-RMU              Document 34-2         Filed 01/13/2009        Page 21 of 44



those of other nations which could result in international discord,” Aramco, 499 U.S. at 248

(citation omitted), and also recognizes that Congress “generally legislates with domestic con-

cerns in mind.” Small, 544 U.S. at 388 (quoting Smith, 507 U.S. at 204 n.5).

       Courts guided by the presumption against extraterritoriality have concluded that

American criminal prohibitions, including those that are applicable within the “special maritime

and territorial jurisdiction of the United States,” 18 U.S.C. § 7 (2006), do not reach extraterri-

torial conduct in the absence of clearly expressed congressional intent. See, e.g., United States v.

Gatlin, 216 F.3d 209, 210-29 (2d Cir. 2000); see also Glenn R. Schmitt, Closing the Gap in

Criminal Jurisdiction Over Civilians Accompanying the Armed Forces Abroad—A First Person

Account of the Creation of the Military Extraterritorial Jurisdiction Act of 2000, 51 Cath. U. L.

Rev. 55, 72 (2001) (“In most instances, . . . federal criminal jurisdiction ends at the nation’s

borders.”).

       The conclusion is particularly strong for the offenses charged here: manslaughter,

attempted manslaughter, and an associated weapons charge. The Supreme Court has long

recognized that such crimes against the person fall exclusively within the jurisdiction of the

sovereign governing the territorial locus of the crime, unless Congress clearly states otherwise:

              Crimes against private individuals or their property, like assaults, murder, [et
              cetera], which affect the peace and good order of the community, must of
              course be committed within the territorial jurisdiction of the government
              where it may properly exercise it. If punishment of them is to be extended to
              include those committed outside of the strict territorial jurisdiction, it is natu-
              ral for Congress to say so in the statute, and failure to do so will negative the
              purpose of Congress in this regard.




                                                    13
   Case 1:08-cr-00360-RMU            Document 34-2         Filed 01/13/2009        Page 22 of 44



United States v. Bowman, 260 U.S. 94, 98 (1922).13 Congress has specifically directed that “[i]n

all cases of murder or manslaughter, the offense shall be deemed to have been committed at the

place where the injury was inflicted . . . .” 18 U.S.C. § 3236. The counts of manslaughter and

attempted manslaughter alleged here all occurred within the Republic of Iraq—outside the terri-

tory of the United States, and within the territory of another sovereign nation. They thus are not

punishable under U.S. law unless Congress by statute has expressly extended U.S. jurisdiction to

reach them.

       Enacted in 2000, the Military Extraterritorial Jurisdiction Act narrowly extended the

reach of American criminal laws that would otherwise apply within the special maritime and

territorial jurisdiction of the United States14 to cover persons who are “employed by or accompa-

nying the Armed Forces outside the United States . . . .” 18 U.S.C. § 3261(a)(1).




       13
           By contrast, the Supreme Court in Bowman noted that some offenses which by their
nature threaten the interests of the United States are presumed to be within the coverage of U.S.
law regardless of their extraterritorial locus. For instance, fraud against the United States or its
officers or agencies is within the United States’ jurisdiction to prosecute regardless of whether it
is committed within the United States’ borders. Bowman, 260 U.S. at 98-99. Under this excep-
tion in Bowman, courts in this Circuit have held that hostage taking, air piracy, and bringing
aliens into the United States are within United States jurisdiction, regardless of their extraterrito-
rial locus, because they protect U.S. citizens and U.S. borders. See United States v. Yunis, 924
F.2d 1086, 1090-92 (D.C. Cir. 1991) (hostage taking and air piracy), aff’g 681 F. Supp. 896
(D.D.C. 1988); United States v. Delgado-Garcia, 374 F.3d 1337, 1344-47 (D.C. Cir. 2004)
(bringing aliens into United States).
        14
           The charged offenses of manslaughter and attempted manslaughter apply within the
special maritime and territorial jurisdiction of the United States. See 18 U.S.C. §§ 1112(b),
1113. The jurisdictional reach of 18 U.S.C. § 924(c)(1) is derivative of the jurisdiction for the
charged crime of violence—Section 924(c)(1) applies to the use or discharge of a firearm “dur-
ing and in relation to any crime of violence . . . for which the person may be prosecuted in a
court of the United States.” § 924(c)(1)(A).


                                                  14
   Case 1:08-cr-00360-RMU           Document 34-2         Filed 01/13/2009       Page 23 of 44



       Section 3261 provides:

            § 3261. Criminal offenses committed by certain members of the Armed
            Forces and by persons employed by or accompanying the Armed Forces
            outside the United States

            (a) Whoever engages in conduct outside the United States that would
            constitute an offense punishable by imprisonment for more than 1 year if the
            conduct had been engaged in within the special maritime and territorial
            jurisdiction of the United States—

            (1) while employed by or accompanying the Armed Forces outside the
            United States . . .

            shall be punished as provided for that offense.

Id. (emphasis added).15

       As originally defined in the statute, those “employed by . . . the Armed Forces outside the

United States” were those individuals “employed as a civilian employee of the Department of

Defense . . . , as a Department of Defense contractor (including a subcontractor at any tier), or as

an employee of a Department of Defense contractor (including a subcontractor at any tier).”

Pub. L. No. 106-523, § 2(a), 114 Stat. 2448, 2491 (codified at 18 U.S.C. § 3267) (2000). Thus,

the statute originally covered only those who were employed or contracted by the Department of

Defense.

       After 2004, the above definition was amended to its present form, to cover employees or

contractors of any federal agency whose employment “relates to supporting the mission of the

Department of Defense overseas.” Under the current definition,

            (1) The term “‘employed by the Armed Forces outside the United States’”
            means—

            (A) employed as—

       15
           Those “‘accompanying the Armed Forces outside the United States’” are statutorily de-
fined to include only certain dependents of servicemembers or Defense Department employees
or contractors. 18 U.S.C. § 3267(2).


                                                 15
   Case 1:08-cr-00360-RMU           Document 34-2         Filed 01/13/2009       Page 24 of 44



               (i) a civilian employee of—

            (I) the Department of Defense (including a nonappropriated fund instrumen-
            tality of the Department); or

            (II) any other Federal agency, or any provisional authority, to the extent such
            employment relates to supporting the mission of the Department of Defense
            overseas;

               (ii) a contractor (including a subcontractor at any tier) of—

            (I) the Department of Defense (including a nonappropriated fund instrumen-
            tality of the Department); or

            (II) any other Federal agency, or any provisional authority, to the extent
            such employment relates to supporting the mission of the Department of
            Defense overseas; or

               (iii) an employee of a contractor (including a subcontractor at any tier) of

            (I) the Department of Defense (including a nonappropriated fund instrumen-
            tality of the Department); or

            (II) any other Federal agency, or any provisional authority, to the extent such
            employment relates to supporting the mission of the Department of Defense
            overseas . . . .

18 U.S.C. § 3267(1) (2006) (emphasis added). Thus, although the Military Extraterritorial Juris-

diction Act now covers non-Defense Department contractors, it does so only “to the extent such

employment relates to supporting the mission of the Department of Defense overseas . . . .” 18

U.S.C. § 3267(1)(A)(ii)(II) (emphasis added).

       The relevant contracts here, which are described in Section B of the Statement of Facts,

supra, and are attached to the accompanying Hulkower Declaration, show clearly that the De-

fendants’ contractual mission did not relate to supporting the mission of the Department of De-

fense, but instead supported the mission of the Department of State. For this reason, the Military

Extraterritorial Jurisdiction Act fails to extend U.S. jurisdiction over these Defendants.




                                                 16
      Case 1:08-cr-00360-RMU         Document 34-2         Filed 01/13/2009       Page 25 of 44



II.      The Military Extraterritorial Jurisdiction Act Does Not Cover the Defendants,
         Whose Contract Employment by the State Department Did Not Support the Mission
         of the Department of Defense Overseas

         A.     The Plain Language of the Military Extraterritorial Jurisdiction Act Does
                Not Reach the Defendants

         Statutory interpretation begins with the plain language of the statute. See, e.g., Lamie v.

U.S. Trustee, 540 U.S. 526, 534 (2004) (citing Hughes Aircraft Co. v. Jacobson, 525 U.S. 432,

438 (1999)); United States v. Villanueva-Sotelo, 515 F.3d 1234, 1237 (D.C. Cir. 2008). The

Supreme Court has “stated time and again that courts must presume that a legislature says in a

statute what it means and means in a statute what it says there.” Arlington Cent. Sch. Dist. v.

Murphy, 548 U.S. 291, 296 (2006) (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54

(1992)); accord Dodd v. United States, 545 U.S. 353, 357 (2005); Hartford Underwriters Ins.

Co. v. Union Planters Bank, 530 U.S. 1, 6 (2000).

         When the words of a statute are unambiguous, “judicial inquiry is complete.” Conn.

Nat’l Bank, 503 U.S. at 254 (quoting Rubin v. United States, 449 U.S. 424, 430 (1981)).

“[W]hen the statute’s language is plain, the sole function of the courts—at least where the dispo-

sition required by the text is not absurd—is to enforce it according to its terms.” Hartford Un-

derwriters, 530 U.S. at 6 (internal quotation marks omitted) (quoting United States v. Ron Pair

Enters., 489 U.S. 235, 241 (1989), in turn quoting Caminetti v. United States, 242 U.S. 470, 485

(1917)); accord Arlington Cent. Sch. Dist., 548 U.S. at 296-97; Dodd, 545 U.S. at 359 (“[W]e

are not free to rewrite the statute that Congress has enacted.”); Villanueva-Sotelo, 515 F.3d at

1237 (citing Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) and Robinson v. Shell Oil

Co., 519 U.S. 337, 340 (1997)).

         Here, where it is undisputed that the Defendants’ contracts were not with the Department

of Defense, the plain language of the Military Extraterritorial Jurisdiction Act provides jurisdic-


                                                  17
   Case 1:08-cr-00360-RMU           Document 34-2         Filed 01/13/2009       Page 26 of 44



tion if and only to the extent that the Defendants’ contract employment “relates to supporting

the mission of the Department of Defense overseas . . . .” 18 U.S.C. § 3267(1)(A)(ii)(II) (em-

phasis added). The Act does not cover all government contractors working overseas, or even all

government contractors working in Iraq. Rather, contractors serving in Iraq are subject to the

Act only if they are either working under a Department of Defense contract (inapplicable here),

or were employed under a contract with another federal agency that “relates to supporting the

mission of the Department of Defense . . . .” Id. A contractor working under a State Department

contract in support of the State Department’s mission is not subject to jurisdiction under the

Military Extraterritorial Jurisdiction Act. The contract documents under which the Defendants

were engaged here make clear that Defendants’ work was in support of the Department of State’s

mission and not the mission of the Department of Defense.

       Since the founding of the Republic, the Departments of State and the Department of

Defense have had very different missions.16 The mission of the Department of State is to

“[c]reate a more secure, democratic, and prosperous world for the benefit of the American people

and the international community.”17 In contrast, the Department of Defense’s mission is to


       16
           Under its founding statute, the functions and duties of the Department of State related
to “correspondences, commissions or instructions to or with public ministers or consuls, from the
United States, or to negotiations with public ministers from foreign states or princes, or to
memorials or other applications from foreign public ministers or other foreigners, or to such
other matters respecting foreign affairs, as the President of the United States shall assign to the
said department.” An Act for establishing an Executive Department, to be denominated the
Department of Foreign Affairs, Statute I, Chap. IV, Sec. I, 1 Stat. 28 (1789) (Hulkower Decl.,
Ex. 21).
        The functions and duties of the Department of Defense, on the other hand, related to
“military commissions, or to the land or naval forces, ships, or warlike stores of the United
States, or to such other matters respecting military or naval affairs, as the President of the United
States shall assign to the said department.” An Act to establish an Executive Department, to be
denominated the Department of War, Statute I, Chap. VII, Sec. I, 1 Stat. 49 (1789) (Id., Ex. 22).
        17
           See State Strategic Plan, supra note 1 (Hulkower Decl., Ex. 1).


                                                 18
   Case 1:08-cr-00360-RMU           Document 34-2        Filed 01/13/2009       Page 27 of 44



“provide the military forces needed to deter war and to protect the security of our country.”18

The mission of Blackwater and its independent contractors under Task Order 6 to the WPPS II

Contract—providing personal protective services for State Department personnel and guests—is

a diplomatic, not military, function.

       By statute, the Department of State is charged with providing security for U.S. assets

abroad that are not under the control of a military area command. Under 22 U.S.C. § 4802(c)(1),

the Secretary of State shall

            have full responsibility for the coordination of all United States Government
            personnel assigned to diplomatic or consular posts or other United States
            missions abroad pursuant to United States Government authorization (except
            for facilities, installations, or personnel under the command of a United
            States area military commander).

Id. The State Department has been responsible for security abroad at least since Congress estab-

lished the Bureau of Diplomatic Security within the Department of State in 1986,19 with the

“mission of [providing] a safe and secure environment for the conduct of U.S. foreign policy.”

U.S. Department of State Foreign Affairs Manual Volume 12—Diplomatic Security at 2 (12

FAM 010).

       This division of responsibilities between State and Defense has been the case even in

Iraq, a war zone. Since the Coalition Provisional Authority returned sovereignty to Iraq in June

of 2004,20 the Department of State’s Bureau of Diplomatic Security has been responsible for

security of U.S. assets not under military command. See 22 U.S.C. § 4802. In order to meet its

responsibilities, the State Department contracted with Blackwater and others, to assist in provid-

       18
          See “DoD 101,” supra note 2 (Hulkower Decl. Ex. 2).
       19
          See the Omnibus Diplomatic Security and Antiterrorism Act of 1986, Pub. L. No. 99-
399; 22 U.S.C. §§ 4801, et seq. (1986))
       20
          On June 28, 2004, the CPA transferred power to a sovereign Iraqi interim government,
and the CPA officially dissolved. See http://www.gao.gov/new.items/d04902r.pdf.


                                                19
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ing security. The State Department of course may engage private contractors for State Depart-

ment functions without altering the nature of those functions. See Pani v. Empire Blue Cross

Blue Shield, 152 F.3d 67, 73 (2d Cir. 1998) (“‘The complexities and magnitude of governmental

activity have become so great that there must of necessity be a delegation and redelegation of

authority as to many functions, and we cannot say that these functions become less important

simply because they are exercised by officers of lower rank in the executive hierarchy’ or by

private contractors.”) (quoting Barr v. Matteo, 360 U.S. 564, 572-73 (1959)).

       Task Order 6 to the WPPS II Contract, under which Blackwater provided contractors in

Iraq, makes clear that the mission being supported under the contract here is the Department of

State’s mission, not the mission of the Department of Defense:

            Due to the unsettled conditions in Iraq, the U.S. Department of State (DoS)
            was tasked to provide for the personal protection and safety of U.S. Embassy
            personnel and facilities in Iraq. Contractor personal protective services and
            site security are required for protective services in Baghdad and Ramadi for
            (1) U.S. Embassy non-government and government personnel supporting
            official U.S. government business, (2) individuals or groups who are directly
            supporting development or reconstruction for or in conjunction with the U.S.
            Agency for International Development and (3) personnel under Chief of
            Mission authority, upon RSO request.[21]

Hulkower Decl., Ex. 3 § 5.0 (emphasis added). There is no reference to the Department of De-

fense, much less to the performance of any Defense Department mission.

       Indeed, Section 6.0 of Task Order 6 makes clear that Defendants’ work in Iraq was en-

tirely subject to the operational control of the Department of State’s Diplomatic Security (“DS”).

As that section provides:
       21
          The “RSO” is the Regional Security Officer, who is a State Department official operat-
ing out of the U.S. Embassy in Baghdad. See 12 FAM 411 (“The purpose of the Bureau of
Diplomatic Security’s overseas security program is to provide chiefs of mission (COMs) through
post regional security officers (RSOs) with the support and guidance required to protect U.S.
Government personnel on official duty and official facilities at diplomatic and consular posts
abroad.”); see also Hulkower Decl., Ex. 3 § 3.0.


                                                20
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            DS [Department of State Diplomatic Security] has set up and is operating a
            large protective services operation in Iraq to provide for the personnel [sic]
            protection and safety of the U.S. Embassy in Baghdad, Iraq, Regional Em-
            bassy Offices and State Embedded Sites, with this Task Order specifically
            covering Baghdad and Ramadi. . . . This contingent is comprised of experi-
            enced, specially trained contractors working under the direction of DS Spe-
            cial Agents from the Regional Security Office (RSO) and under the aus-
            pices of the Department of State (FAR and DOSAR), Diplomatic Security
            Standards such as Standard Operating Procedures, Rules and Regulation.

                      ...

            Baghdad support contractors shall work under the direction of the [De-
            partment of State] RSO and under the auspices of the Department of State’s
            (DoS’s) Worldwide Personal Protective Services (WPPS) II contracts.

Id., Ex. 3 § 6.0 (emphasis added).

       Moreover, the IC Service Agreements between Defendants and Blackwater make clear

that Defendants were engaged to support “the US Department of State Diplomatic Security

Mission Contract,” which for personnel deployed to Iraq is Task Order 6 to the WPPS II Con-

tract. Id., Exs. 5, 13-16, Sched. A ¶ 1. None of these contract documents contains any language

subjecting Defendants to the administrative or operational control of the Department of Defense.

To the contrary, the contract documents make clear that Defendants at all times were under the

operational control of the Department of State, with a responsibility to support the Department of

State’s mission to protect State Department and related personnel.

       Indeed, a Government Accountability Office (“GAO”) report on private security contrac-

tors in Iraq summarizes the differing respective missions of State and Defense in Iraq, and com-

pels the conclusion that State Department security contractors who provide personal protective

services to civilians in Iraq in no way support the Department of Defense’s mission:

            U.S. civilian government agencies and reconstruction contractors have had
            to contract with private security providers because it is not part of the U.S.
            military’s stated mission to provide security to these organizations. U.S.
            forces in Iraq provide security to contractors and DOD civilians who support
            military operations. The Ambassador [i.e., the State Department] is charged

                                                21
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            with generally ensuring the security of most executive branch employees in
            Iraq. . . .

            The stated mission of U.S. military forces in Iraq is to establish and main-
            tain a secure environment, allow the continuance of relief and reconstruc-
            tion efforts, and improve the training and capabilities of the Iraq Security
            Forces. As part of this mission, U.S. forces in Iraq provide security for
            DOD civilians who deploy with the force, non-DOD U.S. government em-
            ployees who are embedded with the combat forces and contractors who de-
            ploy with the combat force. Among the contractors who deploy with the
            force are those that provide maintenance for weapons systems, those who
            provide linguistic and intelligence support to combat forces, and those who
            provide logistics support. Contractors who deploy with the force generally
            live with and directly support U.S. military forces and receive government
            furnished support similar to that provided to DOD civilians. . . .

            The State Department is responsible for the security of most of the execu-
            tive-branch U.S. Government employees located in Iraq. According to the
            President’s Letter of Instruction, the U.S. Ambassador, as Chief of Mission,
            is tasked by the President with full responsibility for the safety of all United
            States government personnel on official duty abroad except those under the
            security protection of a combatant commander or on the staff of an inter-
            national organization. The embassy’s Regional Security Officer is the Chief
            of Mission’s focal point for security issues and as such establishes specific
            security policies and procedures for all executive branch personnel who fall
            under the Chief of Mission’s security responsibility.22

       A State Department blue-ribbon panel, assembled by Secretary of State Condoleeza Rice

and led by Ambassador Patrick F. Kennedy, reviewed the State Department’s use of security

contractors following the events at issue in this case, and similarly concluded that the State

Department’s use of private security contractors supported the mission of the Department of

State, not the Department of Defense.23 After spending two weeks in Baghdad interviewing both

State Department personnel (including the Chief of Mission, Deputy Chief of Mission, and



       22
           Government Accountability Office, REBUILDING IRAQ: Actions Needed to Improve
Use of Private Security Providers, Report to Congressional Committees, GAO-05-737, at 10-12
(July 2005) (“GAO Report”) (emphasis added). Relevant excerpts from the GAO Report are
attached as Exhibit 18 to the Hulkower Declaration.
        23
           See Kennedy Report, supra note 4 (Hulkower Decl. Ex. 19).


                                                 22
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Regional Security Officer) and Defense Department military officers and civilians (including

General Petraeus, General Odierno, and the DOD Inspector General),24 the Secretary’s Panel

made a number of significant “Principal Findings.” It found that provision of personal protective

services support to the Embassy was a State, not Defense, function. See Kennedy Report at 5,

Principal Finding No. 6 (“The U.S. Military in Iraq does not consider it feasible or desirable

under existing conditions in Iraq for the Department of Defense to take on responsibility for

provision of PPS [personal protective services] support to the Embassy.”). It further found that,

while the State Department’s Diplomatic Security Service is responsible for providing such

security, and does so in other countries, it had to contract that function out in Iraq due to insuffi-

cient State Department resources. See id., Principal Finding No. 8 (“The Diplomatic Security

Service does not have sufficient Special Agents worldwide to take on all PPS operations in Iraq

while continuing to meet requirements in other countries.”) (emphasis added). Most signifi-

cantly, the Kennedy Report found in light of these and other findings that “[t]he legal framework

for providing proper oversight of Personal Protective Services (PPS) contractors is inadequate, in

that the Panel is unaware of any basis for holding non-Department of Defense contractors

accountable under US law.” Id., Principal Finding No. 4.

       We do not suggest that the conclusion of a State Department blue ribbon panel binds this

Court on the issue of the reach of a criminal jurisdiction statute. But the Kennedy Report’s

Principal Findings, which are consonant with those of the GAO Report (see supra at 21-22),

demonstrate compellingly that the provision of personal protective services for Embassy person-

nel was and is a diplomatic, not military, function. For that reason, under the plain, unambigu-

ous terms of the Military Extraterritorial Jurisdiction Act, Defendants’ provision of protective

       24
            See id. at 3-4 (describing mission and methodology).


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services for State Department personnel is not covered by the Act. Thus, by its text, the Act

provides no jurisdiction over the allegations in the Indictment.

       B.      The Military Extraterritorial Jurisdiction Act, a Criminal Statute, Must Be
               Construed Strictly

       “The rule that penal laws are to be construed strictly, is perhaps not much less old than

construction itself. It is founded on the tenderness of the law for the rights of individuals; and on

the plain principle that the power of punishment is vested in the legislative, not in the judicial

department. It is the legislature, not the Court, which is to define a crime, and ordain its punish-

ment.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (Marshall, C.J.). Thus,

            [t]he intention of the legislature is to be collected from the words they em-
            ploy. Where there is no ambiguity in the words, there is no room for con-
            struction. The case must be a strong one, indeed, which would justify a Court
            in departing from the plain meaning of words, especially in a penal act, in
            search of an intention which the words themselves did not suggest. . . . To de-
            termine that a case is within the intention of a statute, its language must au-
            thorize us to say so.

Id. at 95-96; see also United States v. Bass, 404 U.S. 336, 348 (1971) (“[L]egislatures and not

courts should define criminal activity. This policy embodies ‘the instinctive distastes against

men languishing in prison unless the lawmaker has clearly said they should.’”) (quoting H.

Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967)).25

Because, as demonstrated above, the plain language of the Military Extraterritorial Jurisdiction

Act does not include within its coverage those whose contract employment does not relate to




       25
           See also Zaimi v. United States, 476 F.2d 511, 524 (D.C. Cir. 1973) (“So it is that one
is not to be subjected to a penalty unless the words of the statute plainly impose it. Criminal
statutes are not to be broadened beyond the fair import of their language; they may not be held to
extend to cases not covered by the words used.”) (quoting United States v. Campos-Serrano, 404
U.S. 293, 297 (1971) and United States v. Resnick, 299 U.S. 207, 209 (1936) (internal quotation
marks omitted)).


                                                 24
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supporting the mission of the Department of Defense, the statute may not be interpreted to in-

clude these Defendants within its coverage.

       This motion will likely be met by the argument that the Court should construe the Mili-

tary Extraterritorial Jurisdiction Act to reach Defendants’ conduct because to do otherwise would

leave these and other contractors in Iraq subject to no law. That policy argument should be

directed to Congress, not this Court. Under the rule of law, individuals may be punished crimi-

nally only under the law as it is written at the time of their conduct—not according to what the

Government or a court later decides the law should be. “There are no constructive offenses; and

before one can be punished, it must be shown that his case is plainly within the statute.”

McNally v. United States, 483 U.S. 350, 360 (1987) (quoting Fasulo v. United States, 272 U.S.

620, 629 (1926)), superseded by statute on other grounds, 18 U.S.C. § 1346 (2006).26 As Justice

Holmes wrote nearly eighty years ago, before one may be punished, “it is reasonable that a fair

warning should be given to the world in language that the common world will understand, of

what the law intends to do if a certain line is passed. To make the warning fair, so far as possible

the line should be clear.” McBoyle v. United States, 283 U.S. 25, 27 (1931).

       That a certain alleged ill is similar to what Congress has criminally proscribed is not a

reason to read it into the proscription through interpretation, where Congress has not done so

through legislation. As Chief Justice Marshall explained for the Court nearly two centuries ago,


       26
          McNally is a clear example of principles that should govern here. Though some courts
had applied the mail fraud statute to punish public bribery, 483 U.S. at 355-56, the Supreme
Court concluded the public’s intangible right to honest services did not clearly fall within the
statutory proscription of “scheme[s] to defraud,” and stated, “If Congress desires to go further, it
must speak more clearly than it has.” Id. at 360. To bring honest services within the scope of
federal mail fraud, Congress then passed a statute making the prohibition clear. See 18 U.S.C.
§ 1346 (added Pub. L. 100-690, Title VII, § 7603(a), Nov. 18, 1988, 102 Stat. 4508). Under Ex
Post Facto principles, however, the proscription applied only prospectively.


                                                25
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            It would be dangerous, indeed, to carry the principle, that a case which is
            within the reason or mischief of a statute, is within its provisions, so far as to
            punish a crime not enumerated in the statute, because it is of equal atrocity,
            or of kindred character, with those which are enumerated.

Wiltberger, 18 U.S. (5 Wheat.) at 95-96. As courts have put it more recently, “legislative

intention, without more, is not legislation.” United States v. McGoff, 831 F.2d 1071, 1076 (D.C.

Cir. 1987) (quoting Train v. City of New York, 420 U.S. 35, 45 (1975)). “To determine that a

case is within the intention of a statute, its language must authorize [the Court] to say so.”

Wiltberger, 18 U.S. (5 Wheat.) at 96. Thus, in Justice Holmes’ time, where a statute prohibiting

the transport of stolen vehicles was “laid down in words that evoke in the common mind only the

picture of vehicles moving on land,” the Court rightly concluded “the statute should not be

extended to aircraft simply because it may seem to us that a similar policy applies, or upon the

speculation that if the legislature had thought of it, very likely broader words would have been

used.” McBoyle, 283 U.S. at 27. The same principles invoked by Chief Justice Marshall and

Justice Holmes apply today. The Defendants here may be held to answer only for what Congress

wrote, not for what the Government might argue Congress really meant or should have written.

       C.      The Sparse Legislative History of the Military Extraterritorial Jurisdiction
               Act Does Not Support Extraterritorial Jurisdiction Here

               1.      Legislative History Cannot Be Used to Broaden the Reach of an
                       Unambiguous Criminal Statute

       As the Supreme Court and the D.C. Circuit have repeatedly observed, an unambiguous

statute is to be applied as written. E.g., Hartford Underwriters, 530 U.S. at 6; Villanueva-Soleto,

515 F.3d at 1237; United States v. Barnes, 295 F.3d 1354, 1359 (D.C. Cir. 2002); McGoff, 831

F.2d at 1076. Courts should “not resort to legislative history to cloud a statutory text that is

clear.” Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994); accord Bifulco v. United States,

447 U.S. 381, 387 (1980) (“Where Congress has manifested its intention, we may not manufac-


                                                 26
   Case 1:08-cr-00360-RMU            Document 34-2          Filed 01/13/2009        Page 35 of 44



ture ambiguity in order to defeat that intent.”); Exxon Mobil Corp. v. Allapattah Servs., 545 U.S.

546, 568 (2005) (“[T]he authoritative statement is the statutory text, not the legislative history or

any other extrinsic material.”); McGoff, 831 F.2d at 1076 (citation omitted); United States v.

Logan, 453 F.3d 804, 805 (7th Cir. 2006) (“Even the plainest legislative history does not justify

going against an unambiguous enactment.”).

        Indeed, it is doubtful that legislative history or public purpose may ever be used to inter-

pret a criminal statute more broadly than the statutory text permits. The Supreme Court has

cautioned that “[b]ecause construction of a criminal statute must be guided by the need for fair

warning, it is rare that legislative history or policies will support a construction of a statute

broader than that clearly warranted by the text.” Crandon v. United States, 494 U.S. 152, 160

(1990); see also Hughey v. United States, 495 U.S. 411, 422 (1990) (noting that even where the

statute is ambiguous, “longstanding principles of lenity . . . preclude our resolution of the ambi-

guity against [the defendant] on the basis of general declarations of policy in the statute and

legislative history.”). And at least three Justices have questioned whether legislative history may

ever be used to construe a criminal statute broadly against a defendant. See United States v.

R.L.C., 503 U.S. 291, 307-11 (1992) (Scalia, J., joined by Kennedy and Thomas, J.J., concurring

in part and concurring in the judgment) (noting fair warning of criminal consequences is given

only by a statute’s text, and that although “[i]t may well be true that in most cases the proposition

that the words of the United States Code or the Statutes at Large give adequate notice to the

citizen is something of a fiction, . . . albeit one required in any system of law[,] . . . necessary

fiction descends to needless farce when the public is charged even with knowledge of Committee

Reports”).




                                                   27
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       For these reasons, although the D.C. Circuit has considered legislative history when a

statute is ambiguous, see Villanueva-Soleto, 515 F.3d at 1243, it has done so with extreme cau-

tion in the criminal context:

            We will, in short, look to see what the historical materials suggest, but we do
            so without in any fashion suggesting that which would be extraordinary in a
            free country ruled by law—that a man or woman could be convicted of a
            crime by virtue of extra-statutory expressions of legislative ‘intent,’ or, more
            precisely, ‘meaning’ found in the web of legislative history.

McGoff, 831 F.2d at 1084 (citing Garcia v. United States, 469 U.S. 70, 75 (1984), and United

States v. Oregon, 366 U.S. 643, 648 (1961)).27 Where the statute is unambiguous, as here, it

must be applied as written. Villanueva-Soleto, 515 F.3d at 1237; Barnes, 295 F.3d at 1359.

               2.      If Relevant, the Legislative History of the Military Extraterritorial
                       Jurisdiction Act Demonstrates the Absence of Jurisdiction

       Even if the Military Extraterritorial Jurisdiction Act were ambiguous in its definition of

“employed by the Armed Forces,” the legislative history and purpose behind the definition of

that term makes clear that the statute does not extend to Defendants.

       First, it is significant that the statutory term being interpreted, which defines the Act’s

coverage, is “employed by the Armed Forces of the United States.” See Villanueva-Soleto, 515

F.3d at 1243 (noting “[t]he title of a statute and the heading of a section are tools available for
       27
             In McGoff, the D.C. Circuit noted that looking to legislative history for indications of
meaning contrary to the statute’s text is “an odd notion in democratic and constitutional theory.
Society must, after all, be governed by law, not by non-binding, historical materials that were not
passed by both Houses of Congress and presented to the President.” Id. at 1080 n.19 (citation
omitted); see also Barnes, 295 F.3d at 1370 (Sentelle, J., dissenting) (“[I]t seems to me most
inconsistent with fundamental fairness and certainly with the rule of lenity to suppose that for a
defendant to understand that his conduct is illegal, he must read not only the words of the statute,
but find and construe the abstruse comments of a single senator on a single day.”); cf. United
States v. Laton, 352 F.3d 286, 314 (6th Cir. 2003) (Sutton, J., dissenting) (“Because ‘the rule of
lenity ensures that criminal statutes will provide fair warning concerning conduct rendered ille-
gal,’ . . . and because no one can plausibly conclude that a committee report or the floor state-
ments of selected legislators provides such warning, the use of such material seems utterly in-
compatible with the purposes of the rule or the civilized interests it protects.”).


                                                  28
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the resolution of a doubt about the meaning of a statute”) (quoting Almendarez-Torres v. United

States, 523 U.S. 224, 234 (1998)). It would be passing strange if the definition in Section 3267

could be contorted so that the term “employed by the Armed Forces of the United States” could

include contractors working under a State Department contract, performing the State Depart-

ment’s mission of providing security for State Department personnel, under the operational

control of the State Department, with no involvement whatsoever by the military. The fact that

Defendants performed their State Department mission in occupied Iraq, and therefore occasion-

ally encountered military personnel to whom they did not report, does not change the analysis,

and is far from sufficient to bring Defendants’ contract work within the reach of the Military

Extraterritorial Jurisdiction Act.

       As originally enacted in 2000, the Act defined the term “employed by the Armed Forces

outside the United States” as follows:

            [E]mployed as a civilian employee of the Department of Defense (including a
            nonappropriated fund instrumentality of the Department), as a Department of
            Defense contractor (including a subcontractor at any tier), or as an employee
            of a Department of Defense contractor (including a subcontractor at any tier).
            ...

Pub. L. No. 106-523, § 2(a), 114 Stat. at 2491 (codified at 18 U.S.C. § 3267). Thus, as originally

written, the Act covered only employees, contractors, and contract employees of the Department

of Defense. It arguably did not cover contractors performing core Defense Department work if

the contract vehicle under which they were engaged was issued through another federal agency.

       After the Abu Ghraib prison incidents became public, it was revealed that one of the

contractors performing interrogation services at Abu Ghraib prison, while under the direct opera-

tional control of the U.S. Army, was, through historical accident, performing its work for the

Army pursuant to a contract administered by the Department of Interior. This statutory scheme

arguably left those contract interrogators outside the Military Extraterritorial Jurisdiction Act’s
                                                 29
   Case 1:08-cr-00360-RMU           Document 34-2         Filed 01/13/2009       Page 38 of 44



reach, even though the contractors’ employees were performing a core military mission and

reporting to military supervisors. In response, Congress amended the Military Extraterritorial

Jurisdiction Act in 2004 to make clear that contractors performing Defense Department work

overseas under the military’s operational control were subject to the Military Extraterritorial

Jurisdiction Act regardless of which federal agency administered the contract.

       Though the 2004 amendment lacks extensive legislative history, what legislative history

exists makes clear that the amendment would not sweep within the Military Extraterritorial

Jurisdiction Act’s grasp contractors performing work for other federal agencies. As Senator

Sessions explained on the Senate floor:

            This act will deal with what our previous act dealt with—those who were
            directly related to the Department of Defense, either contractors or civilian
            employees. But the abuses in Abu Ghraib involved private contractors who
            may not have in every instance been directly associated with the Department
            of Defense, and as such . . . might not be prosecutable under [the prior the
            Military Extraterritorial Jurisdiction Act] statute. So it highlighted our need
            to clarify and expand the coverage of the Military Extraterritorial Jurisdiction
            Act.28

Thus, the 2004 amendment did nothing more than clarify that individuals performing functions

“directly related to the Department of Defense” overseas would be subject to the Act, without

regard to which federal agency administered the contract under which they were engaged. Id.

(emphasis added).

       Indeed, the nonpartisan Congressional Budget Office has specifically observed that the

Military Extraterritorial Jurisdiction Act, even as amended in 2004, did not cover contractors

performing non-Defense Department missions in Iraq, and specifically identified State Depart-



       28
          150 Cong. Rec. S6863 (daily ed. June 16, 2004) (emphasis added) (statement by Sen.
Sessions). A copy of Senator Sessions’s remarks is attached as Exhibit 11 to the accompanying
Hulkower Declaration.


                                                30
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ment security contractors (such as Blackwater) as examples of contractors in Iraq not subject to

the Military Extraterritorial Jurisdiction Act:

            Military Extraterritorial Jurisdiction Act of 2000. The Military Extraterri-
            torial Jurisdiction Act of 2000 (MEJA) extended jurisdiction of the U.S.
            courts to DoD civilians or contractor personnel supporting DoD missions
            who commit a felony (an offense punishable by more than one year in prison)
            outside sovereign U.S. territory while accompanying U.S. forces. The defen-
            dants may be tried in federal court after being brought to the United States.
            MEJA jurisdiction applies only if civilians (including contractor personnel)
            have not been prosecuted by the host nation’s legal system or under the
            UCMJ. It does not apply to civilians working for foreign governments or for
            federal departments or agencies other than DoD; it also does not apply to na-
            tionals of the host country (in this case, Iraq). For example, employees of se-
            curity contractors working for the Department of State would not be subject
            to MEJA.

Congressional Budget Office, Contractors’ Support of U.S. Operations in Iraq 24 (Aug. 2008)

(emphasis added); see also id. at 16-17 (examining the contracting of Blackwater to provide

security for State Department personnel).29

       Of course, “[w]hen it desires to do so, Congress knows how to place [an extraterritorial

locus] within the jurisdictional reach of a statute.” Argentine Republic v. Amerada Hess Ship-

ping Corp., 488 U.S. 428, 440 & n.7 (1989) (listing three statutes placing conduct on “the high

seas” within U.S. extraterritorial jurisdiction); accord Smith, 507 U.S. at 204; Aramco, 499 U.S.

at 248 (both citing Amerada Hess). Prior to the incident in July 2007, then-Senator Obama

introduced legislation that would bring within the reach of the Military Extraterritorial Jurisdic-

tion Act any federal contract employment “carried out in a region outside the United States in




       29
          For the Court’s convenience, a copy of the quoted CBO report is attached as Exhibit 12
to the accompanying Hulkower Declaration. The Defendants have requested from the Govern-
ment, under Brady v. Maryland, copies of any interpretations by any federal government agen-
cies regarding the jurisdictional reach of MEJA, including any interpretations concluding that
MEJA would not reach contractors working for agencies other than the Department of Defense.


                                                  31
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which the Armed Forces are conducting a contingency operation.”30 Similarly, in a December 5,

2007 “Memorandum of Agreement (MOA) Between the Department of Defense and the De-

partment of State on USG Private Security Contractors,” the State and Defense Departments

agreed to “continue to work together to expedite the enactment of legislation to establish a clear

legal basis for holding USG PSC’s in Iraq accountable under U.S. law.” Senator Obama’s pro-

posed amendment of the Military Extraterritorial Jurisdiction Act, the State and Defense De-

partments’ December 2007 Memorandum of Agreement, and the August 2008 CBO Report all

show recognition that at the time of the Nisur Square incident in September 2007, the conduct of

U.S. contractors whose work did not relate to supporting the mission of the Department of De-

fense did not fall within the coverage of the Military Extraterritorial Jurisdiction Act. Under the

rule of law and the Ex Post Facto Clause, Defendants’ acts on September 16, 2007 cannot,

through interpretation, be brought within the reach of a criminal statute that did not cover them at

the time of the conduct alleged.

       Thus, even if the Military Extraterritorial Jurisdiction Act were ambiguous—which it is

not—the relevant legislative history demonstrates that the 2004 amendment to the Act had a

single purpose: to ensure that contractors performing core Defense Department missions under

military control were subject to the Act without regard to the identity of the agency administer-

ing their contracts. The 2004 amendment did not extend the Act to cover contractors performing

a State Department mission under the operational control of the U.S. Department of State.

Therefore, the Indictment would be fatally defective even if the Act itself were ambiguous as to

which contractors are subject to its jurisdiction.



       30
            S. Amend. 2084, supra note 5 (Hulkower Decl., Ex. 20).


                                                     32
   Case 1:08-cr-00360-RMU           Document 34-2         Filed 01/13/2009       Page 41 of 44



       D.      Even if the Act Were Somehow Ambiguous, the Rule of Lenity Would Apply

       As demonstrated above, the text of the Military Extraterritorial Jurisdiction Act is unam-

biguous, and should be applied as written. The legislative history of the Act cannot be used to

cloud the unambiguous text, but even if it were relevant, the legislative history supports the plain

and unambiguous meaning of the text, which excludes Defendants’ contract employment from

its coverage. Even if legislative history or public purpose could create any ambiguity in the

statute, however, that ambiguity would have to be resolved in favor of the Defendants.

       It is well settled that “ambiguity concerning the ambit of criminal statutes should be

resolved in favor of lenity.” United States v. Bass, 404 U.S. 336, 347-48 (1971). “[W]hen

choice has to be made between two readings of what conduct Congress has made a crime, it is

appropriate, before we choose the harsher alternative, to require that Congress should have spo-

ken in language that is clear and definite.” Id. (quoting United States v. Universal C.I.T. Credit

Corp., 344 U.S. 218, 221-22 (1952)); accord McNally, 483 U.S. at 359-60. In simple terms, “the

tie must go to the defendant.” United States v. Santos, 128 S. Ct. 2020, 2025 (2008).

       The rule does not arise “out of any sentimental consideration, or for want of sympathy

with the purpose of Congress in proscribing evil or anti-social conduct.” Bell v. United States,

349 U.S. 81, 83 (1955). Rather, “[i]t may fairly be said to be a presupposition of our law to

resolve doubts in the enforcement of a penal code against the imposition of a harsher punish-

ment.” Id.; accord United States v. Anderson, 59 F.3d 1323, 1333 (D.C. Cir. 1995). The lenity

principle is founded on two policies fundamental to the rule of law:

            First, ‘a fair warning should be given to the world in language that the
            common world will understand, of what the law intends to do if a certain line
            is passed. To make the warning fair, so far as possible the line should be
            clear. . . . Second, because of the seriousness of criminal penalties, and
            because criminal punishment usually represents the moral condemnation of
            the community, legislatures and not courts should define criminal activity.


                                                33
   Case 1:08-cr-00360-RMU           Document 34-2         Filed 01/13/2009       Page 42 of 44



Bass, 404 U.S. at 348; accord Santos, 128 S. Ct. at 2025 (“This venerable rule not only vindi-

cates the fundamental principle that no citizen should be held accountable for a violation of a

statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed.

It also places the weight of inertia upon the party that can best induce Congress to speak more

clearly and keeps courts from making criminal law in Congress’s stead.”); United States v.

Nofziger, 878 F.2d 442, 452 (D.C. Cir. 1989) (quoting Bass, supra).

       Because the rule of lenity requires that Congress speak clearly before courts will adopt

the harsher of two possible interpretations of criminal law, the “crucial inquiry is not whether

[the statute] covers [the alleged conduct] ambivalently, but whether it ‘plainly and unmistakably’

does so.” Zaimi v. United States, 476 F.2d 511, 523 (D.C. Cir. 1971) (quoting Bass, 404 U.S. at

348). The Supreme Court and the D.C. Circuit have regularly noted, when reading an unambi-

guous statute in favor of a defendant, that even if the reach of the statute were ambiguous, the

rule of lenity would still require narrow construction in favor of the defendant.31



       31
           See Scheidler v. N.O.W., 537 U.S. 393, 408 (2003) (“Even if the language and history
of the Act were less clear than we have found them to be, the Act could not properly be ex-
panded as the Government suggests for two related reasons. First, this being a criminal statute, it
must be strictly construed, and any ambiguity must be resolved in favor of lenity.”) (quoting
United States v. Enmons, 410 U.S. 396, 411 (1973)); Ratzlaf, 510 U.S. at 148 (“Moreover, were
we to find [the statute] ambiguous . . . , we would resolve any doubt in favor of the defendant.”)
(citations omitted); Hughey, 495 U.S. at 422 (“Even were the statutory language . . . ambiguous,
longstanding principles of lenity, which demand resolution of ambiguities in criminal statutes in
favor of the defendant, preclude our resolution of the ambiguity against [the defendant] on the
basis of general declarations of policy in the statute and legislative history.”) (citing Simpson v.
United States, 435 U.S. 6, 14-15 (1978) and Crandon, 494 U.S. at 160); Crandon, 494 U.S. at
168 (“To the extent that any ambiguity . . . remains, it should be resolved in the [defendants’]
favor unless and until Congress plainly states that we have misconstrued its intent.”); Rewis v.
United States, 401 U.S. 808, 812 (1971) (“And even if this lack of [textual or legislative] support
were less apparent, ambiguity concerning the ambit of criminal statutes should be resolved in
favor of lenity.”); Villanueva-Soleto, 515 F.3d at 1246 (“Even if we harbored any doubt about
this—that is, were we unable to find ‘an unambiguous intent on the part of Congress’—we
would ‘turn to the rule of lenity to resolve the dispute.’”) (citation omitted); United States v.
                                                                                        (Continued …)
                                                 34
   Case 1:08-cr-00360-RMU            Document 34-2          Filed 01/13/2009       Page 43 of 44



       Thus, to justify applying the Military Extraterritorial Jurisdiction Act to cover Defen-

dants’ actions here, any Government argument regarding public purpose or legislative history

would have to do more than call the meaning of the statutory text into question. It would have to

establish that the Government’s reading of the statute is unambiguously correct. As the D.C.

Circuit has most recently noted, “where text, structure, and history fail to establish that the Gov-

ernment’s position is unambiguously correct, we apply the rule of lenity and resolve the ambi-

guity in the defendant’s favor.” Villanueva-Soleto, 515 F.3d at 1247 (quoting United States v.

Granderson, 511 U.S. 39, 54 (1994) (emphasis added, alteration marks omitted)). “[I]f the

legislative history failed to resolve the statute’s ambiguity, the rule of lenity would forbid us

from” adopting the harsher interpretation. Id. at 1246 (citation omitted); accord Tanner v.

United States, 483 U.S. 107, 131 (1987); Ladner v. United States, 358 U.S. 169, 177 (1958)

(where “[n]either the wording of the statute nor its legislative history points clearly to either

meaning . . . the Court applies a policy of lenity and adopts the less harsh meaning”).

       Thus, even if some public purpose or some indication in legislative history could create

an ambiguity in the reach of the Military Extraterritorial Jurisdiction Act, the rule of lenity would

still require narrow construction in favor of the Defendants. Defendants’ reading of the Act—

that it reaches only those contractors supporting the mission of the Department of Defense, and

does not reach contractors whose contract employment relates exclusively to supporting the

Department of State—is supported by the plain text of the Act, the meaning of the term being

defined (“employed by the Armed Forces”), and the legislative history. As such, if not conclu-

sive, it is certainly a plausible interpretation of the Act, at the very least a more plausible one



Singleton, 182 F.3d 7, 13 n.12 (D.C. Cir. 1999) (“If the statute were ambiguous, the rule of lenity
would require a narrow construction.”).


                                                  35
   Case 1:08-cr-00360-RMU            Document 34-2          Filed 01/13/2009       Page 44 of 44



than any broad interpretation to the contrary. Where the Court, after consulting a statute’s text,

context, and legislative history, is still left with more than one plausible interpretation of the

statute—one consistent with innocence, the other with guilt—the rule of lenity requires that it

adopt the construction favorable to the Defendant.

                                          CONCLUSION

       For all of the foregoing reasons, the Court should dismiss the Indictment for lack of

jurisdiction. Because Defendants’ undisputedly extraterritorial conduct falls outside the jurisdic-

tional reach of the Military Extraterritorial Jurisdiction Act under any permissible reading of the

statute, the dismissal should be with prejudice.

Respectfully submitted,

By:     /s/ Mark J. Hulkower

Mark J. Hulkower (No. 400463)                           Thomas G. Connolly (No. 420416)
Bruce C. Bishop (No. 437225)                            Steven A. Fredley (No. 484794)
Michael J. Baratz (No. 480607)                          Harris, Wiltshire & Grannis LLP
Steptoe & Johnson LLP                                   1200 Eighteenth Street N.W., Suite 1200
1330 Connecticut Ave. N.W.                              Washington, D.C. 20036
Washington, D.C. 20036                                   (202) 730-1300
(202) 429-3000                                          Counsel for Defendant Nicholas A. Slatten
Counsel for Defendant Paul A. Slough

William Coffield (No. 431126)                           David Schertler (No. 367203)
Coffield Law Group LLP                                  Danny Onorato (No. 480043)
1330 Connecticut Ave. N.W. Suite 220                    Veronica R. Jennings (No. 981517)
Washington, D.C. 20036                                  Schertler & Onorato, LLP
(202) 429-4799                                          601 Pennsylvania Avenue N.W.
Counsel for Defendant Evan S. Liberty                   North Building – 9th Floor
                                                        Washington, D.C. 20004-2601
                                                        (202) 628-4199
                                                        Counsel for Defendant Dustin L. Heard
Steven J. McCool (No. 429369)
Mallon & McCool, LLC
1776 K Street, N.W., Suite 200
Washington, D.C. 20006
Counsel for Defendant Donald W. Ball

Dated: January 13, 2009
                                                   36
    Case 1:08-cr-00360-RMU          Document 34-4        Filed 01/13/2009      Page 1 of 3



                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

____________________________________
                                    )
UNITED STATES OF AMERICA             )
                                    )
            v.                       )              No. 1:08-cr-360-RMU
                                    )
PAUL ALVIN SLOUGH,                   )
NICHOLAS ABRAM SLATTEN,              )
EVAN SHAWN LIBERTY,                  )
DUSTIN LAURENT HEARD, and            )
DONALD WAYNE BALL,                  )
                                    )
                  Defendants.        )
____________________________________)


    DECLARATION OF MARK J. HULKOWER IN SUPPORT OF DEFENDANTS’
           MOTION TO DISMISS FOR LACK OF JURISDICTION


       I, Mark J. Hulkower, hereby declare as follows:


       1.     I am a partner in the law firm of Steptoe & Johnson, LLP and am one of the

attorneys for defendant Paul A. Slough.

       2.     Attached hereto are true and correct copies of the following exhibits. I am

submitting this declaration in support of Defendants’ Motion to Dismiss For Lack of Jurisdiction.

       Exhibit 1:     Excerpt from FY 2007-2012 Department of State and USAID Strategic

Plan (May, 2007).

       Exhibit 2:     DoD 101, An Introductory Overview of the Department of Defense

(December 5, 2008).

       Exhibit 3:     Excerpt of Task Order 6 to WPPS II Contract (August 27, 2007).

       Exhibit 4:     Excerpt of WPPS II Contract (August 25, 2004).
    Case 1:08-cr-00360-RMU         Document 34-4        Filed 01/13/2009     Page 2 of 3



       Exhibit 5:     Schedule A to Paul Slough’s Independent Contractor Service Agreement

(October 2, 2006).

       Exhibit 6:     Paul Slough’s Department of State Letter of Authorization (June 19,

       2007).

       Exhibit 7:     Dustin Heard’s Department of State Letter of Authorization (March 30,

       2007).

       Exhibit 8:     Donald Ball’s Department of State Letter of Authorization (June 11,

       2007).

       Exhibit 9:     Nicholas Slatten’s Department of State Letter of Authorization (July 11,

       2007).

       Exhibit 10:    Evan Liberty’s Department of State Letter of Authorization (May 18,

       2007).

       Exhibit 11:    Proceedings and Debate of the 108th Congress, Second Session (June 16,

       2004).

       Exhibit 12:    CBO Report “Contractors’ Support of U.S. Operations in Iraq” (August,

       2008).

       Exhibit 13:    Schedule A to Nicholas Slatten’s Independent Contractor Service

Agreement (December 27, 2006).

       Exhibit 14:    Schedule A to Dustin Heard’s Independent Contractor Service Agreement

(July 24, 2007).

       Exhibit 15:    Schedule A to Evan Liberty’s Independent Contractor Service Agreement

(January 11, 2007).




                                             -2-
    Case 1:08-cr-00360-RMU             Document 34-4         Filed 01/13/2009      Page 3 of 3



       Exhibit 16:       Schedule A to Donald Ball’s Independent Contractor Service Agreement

(July 8, 2007).

       Exhibit 17:       Excerpts from Government’s Omnibus Response to Defendants’ Motion

For Probable Cause Hearing (December 8, 2008).

       Exhibit 18:       Excerpt from the Government Accountability Office - Rebuilding Iraq:

Actions Needed to Improve Use of Private Security Providers (July, 2005).

       Exhibit 19:       Report of the Secretary of State’s Panel on Personal Protective Services in

Iraq (“Kennedy Report”) (October, 2007).

       Exhibit 20:       Inclusion of Contractors under Military Extraterritorial Jurisdiction Act,

Proposed Senate amendment 2084 to bill H.R. 1585, sponsored by Senator Barack Obama (July

11, 2007).

       Exhibit 21:       Congressional Act creating Department of Foreign Affairs (July 27, 1789).

       Exhibit 22:       Congressional Act creating Department of War (August 7, 1789).



       3.         I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing

is true and correct. Executed on January 13, 2009.



                                                                 /s/ Mark J. Hulkower___________
                                                                 Mark J. Hulkower (No. 400463)
                                                                 STEPTOE & JOHNSON LLP
                                                                 1330 Connecticut Avenue, NW
                                                                 Washington, D.C. 20036
                                                                 Telephone: (202) 429-3000
                                                                  Facsimile: (202) 429-3902




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