The US should immediately prosecute culpable Hamas leaders

Publicly available evidence demonstrates that Hamas’s principal leaders, including those residing in Qatar and Turkey, are responsible for the ongoing hostage-taking of U.S. citizens in violation of U.S. law. President Biden, acting through the Justice Department, should immediately announce and pursue the prosecutions of culpable Hamas leaders. He should demand that Doha and Ankara provisionally arrest and detain them to facilitate U.S. custody for criminal prosecution.

Hamas holds hostage nearly 240 men, women and children, including nine or 10 U.S. citizens, who the terrorist group seized in Israel on Oct. 7. In addition, among the more than 1,200 people Hamas murdered in Israel on Oct. 7 were at least 33 U.S. citizens, according to Secretary of State Antony Blinken.

Those acts constitute violations of federal criminal laws, prohibiting hostage-taking and murders of U.S. citizens, for which the culpable leaders and planners should be held to account.       

Qatar has for years hosted Hamas’s principal leader, Ismail Haniyeh, whom the U.S. has designated a “global terrorist” since Jan. 31, 2018. Video reportedly shows Haniyeh, his deputy Saleh Al-Arouri and other Hamas officials monitoring and celebrating the Oct. 7 massacre in Israel from the group’s offices in Doha. 

Soon after the attacks, Al-Arouri provided Al Jazeera with one of the first insider accounts of the attacks, including how each attacker had received “detailed instructions” about their targets prior to the attacks. Qatar has also hosted other senior Hamas officials, including Khaled Mashaal, the Hamas senior leader (formerly its top leader) whose calls for a day of jihad on Oct. 13 led to security alerts across the world, including in the United States.

Several senior Hamas officials reside in Turkey and use it as a base of operations. At least a dozen Hamas officials reportedly use Turkey for recruitment, plotting terrorist attacks against Israel and conducting military training.

The U.S. State and Treasury Departments designated Hamas as a Foreign Terrorist Organization in 1997 and its key leaders Haniyeh, Al-Arouri, Mashaal, Yahya Al Sinwar, Mousa Abu Marzook and others as “global terrorists” over the past 20 years. 

In addition, the U.S. has long offered a reward of up to $5 million for “information that brings to justice” Al-Arouri. On Oct. 18, Oct. 27 and Nov. 14, the U.S. Treasury Department imposed sanctions on several Hamas financiers based in Qatar, Turkey and elsewhere.

The Justice Department – consistent with its constitutional duty to ensure that U.S. laws be faithfully executed – should seek to hold Hamas leaders accountable for their barbaric criminal conduct against U.S. citizens. U.S. law authorizes prosecution of any person who “seizes or detains” or conspires with others to seize, detain and continue to detain a U.S. citizen as a hostage outside the United States. 

In light of the recent proliferation of unlawful detentions of Americans by Iran and Russia, the U.S. should make clear by legal action against culpable Hamas leaders that any individual who takes Americans hostage shall be held to account in a U.S. court.   

In addition, U.S. law authorizes prosecution of any person who kills, or engages in a conspiracy to kill, a U.S. national outside the U.S. when such offense was intended to terrorize. While other federal offenses also apply, the hostage-taking and murder offenses are the most logical to initially pursue as a result of the Justice Department’s past successful prosecutions under those statutes. Given the potential for additional loss of life among the hostages and innocent residents of Gaza, time is of the essence for the U.S. government to add to the pressure upon Hamas to release the nearly 240 hostages.

Even if a particular Hamas leader was initially unaware that U.S. citizens were kidnapped, he certainly is now complicit in the continuation of this offense. In any event, U.S. law requires proof of an intent to commit hostage-taking but not an intent to take Americans hostage. 

In short, publicly available recordings and other information provide ample grounds for U.S. law enforcement officers to conclude that the actions of the principal Hamas leaders, including those in Qatar and Turkey, meet the standard for conviction under 18 U.S. Code § 1203 for conspiracy “to continue to detain” U.S. citizens “in order to compel” a government (Israel) “to do or abstain from doing any act as an explicit or implicit condition for the release of” those hostages.

Accordingly, longstanding Department of Justice practice calls for the United States to request immediately that Qatar and Turkey provisionally arrest and detain culpable Hamas leaders to facilitate U.S. custody for criminal prosecution.

The U.S. government could begin by demanding that Qatar immediately turn over Mousa Abu Marzook to U.S. custody, to facilitate his federal criminal prosecution in the longstanding case of United States v. Marzook. An Oct. 12, 2023, New Yorker piece identified Marzook as a senior leader of Hamas and noted that he “lives in exile in Doha, Qatar.”

Marzook has been a fugitive from U.S. justice for two decades. He coordinated and financed Hamas activities while living in the United States between 1988 and 1993. 

A U.S. federal indictment from 2004 charges Marzook with operating Hamas as a racketeering enterprise through a pattern of murder, solicitation to commit murder, conspiracies to kidnap and maim, money laundering, obstruction of justice, material support for a designated terrorist organization, hostage takings, forgeries and other criminal conduct. Prosecution and trial of that offense presents an effective means, under law, to both finally hold Marzook accountable and demonstrate the longstanding character of Hamas.

Senior Hamas officials living in Qatar and Turkey clearly bear responsibility for conspiring in and causing both ongoing and past violent criminal acts against U.S. citizens. The U.S. government should act immediately to bring to justice all culpable Hamas officials. 

Orde Kittrie is a senior fellow at the Foundation for Defense of Democracies, a law professor at Arizona State University and author of “Lawfare: Law as a Weapon of War.” He previously served for more than a decade as a U.S. State Department attorney. 

Steven Pelak is an attorney who served for 18 years as an assistant U.S. attorney in the District of Columbia and for six years as the deputy chief and chief of the Counterespionage Section in the National Security Division of the U.S. Department of Justice.