confrontations in BosniaHerzegovina, Chechnya, and
neighboring regions, and the Sudan. Overt acts in furtherance of the
conspiracy were allegedly committed within the jurisdiction of the United
States. Arnaout allegedly knew and intended that the recipients of BIF
aid would use those benefits in a conspiracy to kill, kidnap, maim or
injure persons in a foreign country, in violation of 18 U.S.C. § 956
(a)(1) and 2339A.
Arnaout is charged in Count Two with conspiring to provide material
support and resources to al Qaeda, Hezb e Islami, and others engaged in
violent confrontations in the Sudan, BosniaHerzegovina, Chechnya, and
neighboring regions. He allegedly conspired to conceal and disguise the
nature, location, source and ownership of material support and resources
he furnished, knowing and intending this aid would be used in a
conspiracy to kill, kidnap, maim or injure persons in a foreign country,
in violation of 18 U.S.C. § 956 (a)(1) and 2339A.
The foregoing portions of Count One, and Count Two in its entirety, are
the subject of Arnaout's motion to dismiss.*fn2 Arnaout contends alleged
recipients of BIF aid were lawful combatants [or soldiers], whose actions
during armed conflict with legitimate military targets are privileged
from prosecution under the Geneva Conventions. According to Arnaout, the
status of purported BIF beneficiaries as lawful combatants protects them
from prosecution for acts of war, such as killing, maiming, kidnaping and
injuring the enemy. Because BIF aid recipients' conduct during war was
not unlawful under the Geneva Conventions, Arnaout argues their lawful
conduct cannot support charges of conspiracy to murder, kidnap and maim
under 18 U.S.C. § 956 (a)(1). He concludes that as a matter of law,
the government cannot establish that material support was provided to
groups or persons engaged in violent conflicts within the purview of
18 U.S.C. § 2339A.
Arnaout ignores the court's obligation to accept all well-pleaded
allegations of the indictment as true for purposes of a motion to
dismiss. Boyce Motor Lines v. United States, 342 U.S. 337, 343 n. 16
(1951). Applying that standard, allegations that Arnaout conspired to
provide material support and resources to al Qaeda, Hezb e Islami, the
Sudanese Popular Defense Force, and others engaged in violent
confrontations must be viewed as true. The allegations of the indictment
support a reasonable inference that the intended recipients of BIF aid
were terrorists who do not fall under the protection of the Geneva
Nor has Arnaout established that al Qaeda, Hezb e Islami and the
Sudanese Popular Defense Force were lawful combatants privileged against
prosecution for conspiracy to murder, kidnap, maim and injure others in
Chechnya, Bosnia-Herzegovina, and the Sudan. Arnaout has made no showing
whatsoever that al Qaeda, Hezb e Islami, and the Sudanese Popular Defense
Force meet the criteria for lawful combatant status: (1) hierarchical
military structure; (2) distinctive military uniforms or emblems
recognizable at a distance; (3) combatants carry arms openly; and (4)
operations are conducted in accordance with the laws and customs of war.
United States v. Lindh, 212 F. Supp.2d 541, 557 (E.D.Va. 2002) (citing,
inter alia, Geneva Convention Relative to the Treatment of
Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, art.
4(A)(2)). "[A]ll armed forces or militias, regular and irregular, must
meet the four criteria if their members are to receive combatant immunity."
Id. at 557 n. 35.
Viewing the allegations of the indictment as true, Counts One and Two
sufficiently allege that Arnaout conspired to supply material support and
benefits to al Qaeda, Hezb e Islami, and the Sudanese Popular Defense
Force, and others engaged in violent confrontations involving murder,
kidnaping, maiming and injury in Chechnya, Bosnia-Herzcgovina, and
neighboring regions, and the Sudan, in violation of United States law.
Arnaout has failed to establish as a matter of law that the lawful
combatant privilege extends to alleged recipients of his aid.