Federal Extraterritorial Criminal Jurisdiction: Legislation in the 109th Congress
Released: 2007-01-16T00:00:00

Introduction

Subject matter jurisdiction over a criminal offense is usually a matter of the law of the place where the offense occurs. A number of federal criminal statutes, however, enjoy extraterritorial application. The most obvious include a statement of extraterritorial jurisdiction. The courts have held that the overseas reach of certain other statutes that have no such expressed statement must nevertheless be implied lest the intent of Congress be honored only imperfectly. In recent years, Congress included statements of extraterritorial jurisdiction in its criminal statutes with increasing regularity. The trend continued in the 109 th Congress.

Proposals introduced during the 109 th Congress, that contain extraterritorial criminal jurisdiction components, took several forms. Some created or would have created new crimes with an overseas element. Others created or would have created new crimes and simply stated that they are to have overseas application. Still others created or would have created new crimes and articulated specific circumstances under which they apply abroad. And yet others would have expand existing statements of extraterritorial jurisdiction for existing crimes to enlarge the circumstances under which they apply.

Background

Some of the first federal criminal laws proscribed conduct occurring beyond the territorial confines of the United States. The first treason provision condemned that offense when committed "within the United States or elsewhere." Those early federal crimes also included murder, manslaughter, maiming, and larceny, when committed within what we know today as the "special maritime and territorial jurisdiction of the United States."

The special maritime and territorial jurisdiction of the United States refers to those areas such as federal enclaves over which the United States has exclusive or concurrent legislative jurisdiction; to the territorial waters of the United States; and to ships of American registry. When a crime has been committed by or against an American, the special maritime and territorial jurisdiction of the United States also includes (1) any place outside the jurisdiction of any other country, (2) any foreign vessel scheduled to depart from or to arrive in the United States, and (3) any overseas federal installation or residence of personnel assigned to an overseas federal installation other than those covered by the Military Extraterritorial Jurisdiction Act.

When committed within the special maritime and territorial jurisdiction of the United States, federal law criminalizes among other things, murder, manslaughter, maiming, assault, kidnapping, arson, property destruction, theft, robbery, and sexual abuse. The Military Extraterritorial Jurisdiction Act outlaws misconduct committed outside the United States by a member of the United States armed forces no longer subject to court martial jurisdiction or by anyone employed by or accompanying the United States armed forces, if the misconduct would constitute an offense punishable imprisonment for more than one year had it been committed within the special maritime and territorial jurisdiction of the United States.

When the vitality of a statute defining a federal crime does not depend upon the place where the crime is committed such as in a federal enclave, the Supreme Court held in Bowman v. United States that a statute which makes no statement as to its overseas application may overcome the presumption of purely domestic application if the failure to do so would frustrate the purpose for which Congress enacted the statute.

The Court later held in Ford v. United States that a similarly silent statute will be thought to have extraterritorial application where its violation has the statutorily anticipated impact within the United States.

Based on Bowman and Ford , the lower federal courts have concluded that a federal criminal statute may be applied extraterritorially if it meets either of those standards. Yet they have also concluded that absent an explicit indication to the contrary Congress intends questions of the overseas application of federal criminal law to be resolved consistent with the principles of international law. Particularly in the earlier cases, the courts looked to whether application would satisfy one of the five international principles under which extraterritorial application of criminal law had been recognized. Those principles will allow the application of the criminal laws of one country within the territory of another when:

- the misconduct occurs in part within the territory of the proscribing country (the territorial principle);

- the misconduct is that of a national of the proscribing country (the nationality principle);

- the proscription applies to misconduct committed against the nationals of the proscribing country (the passive personality principle);

- the misconduct has an impact within the proscribing country (the protective principle); and

- the misconduct is universally condemned (the universal principle).

The lower federal courts have read these principles and the Bowman and Ford decisions to suggest that American extraterritorial criminal jurisdiction includes a wide range of statutes designed to protect federal officers, employees and property, to prevent smuggling and to deter the obstruction or corruption of the overseas activities of federal departments and agencies. They have held, for instance, that the statute outlawing the assassination of Members of Congress may be applied against an American for a murder committed in a foreign country, and that statutes prohibiting the murder or kidnapping of federal law enforcement officials apply in other countries even if the offenders are not Americans, and even if the offenders incorrectly believed the victims were federal law enforcement officers. They have also discovered extraterritorial jurisdiction appropriate:

- to cases where aliens have attempted to defraud the United States in order to gain admission into the United States;

- to false statements made by Americans overseas;

- to the theft of federal property by Americans abroad;

- to drug trafficking on the high seas;

- to an overseas plot to sabotage American airline flights; and

- to counterfeiting, forging or otherwise misusing federal documents or checks overseas by either Americans or aliens .

In the more contemporary cases, the courts often also referred to the summary of the law portrayed in the Restatement, that provides not only a somewhat different formulation of extraterritorial principles, but also a list of factors to be considered in order to determine how the principles should be reasonably applied.

The presumptions of domestic application and consistency with the principles of international law, however, operate as interpretative guides. They cannot overcome a clear expression of Congressional intent to the contrary.

Explicit Extraterritorial Jurisdiction

"There is extraterritorial jurisdiction"

Sometimes, Congress has simply declared that there is extraterritorial jurisdiction over the offense defined in the statute. This appears to be shorthanded way of saying there is federal extraterritorial jurisdiction under any circumstances recognized under one or more of the internationally recognized principles. That is, there is jurisdiction over the crime committed outside of the United States if (1) the crimes occurs in part within the United States or has a substantial impact here (territorial principle), (2) the offender is an American (nationality principle), (3) the victim of the offense is an American (passive personality principle), (4) the crime relates to the national security, integrity of governmental processes, or similar interest of the United States (protective principle), or (5) the crime is universally condemned (universal principle) or (6) is one condemned by treaty or international agreement and occurs outside the territory of any country or within a country which is a signatory to the operative treaty or agreement.

Several proposals in the 109 th Congress followed this model. Numbered among them were several immigration-related proposals that would have amended the alien smuggling prohibitions in section 274 of the Immigration and Nationality Act (8 U.S.C. 1324) and added this type of general statement of extraterritorial jurisdiction to it, proposed 8 U.S.C. 1324(a)(4). The bills in question were:

- Comprehensive Immigration Reform Act ( S. 2611 as agreed to by the Senate);

- Border Protection, Antiterrorism, and Illegal Immigration Control Act ( H.R. 4437 as passed by the House);

- Border Security and Interior Enforcement Improvement Act ( S. 2377 );

- Border Security and Interior Enforcement Improvement Act ( S. 2368 ); and

- Securing America's Borders Act ( S. 2454 ).

Even in the absence of a statement of extraterritorial jurisdiction, the courts seem likely to conclude that the statute was intended to have extraterritorial application and that such application constitutes no affront to the principles of international law. Smuggling aliens into the United States has an impact within the United States and thus comes within the territorial principle. In fact, the appellate courts to consider the question to date have concluded the section is extraterritorially applicable.

A general statement of extraterritorial jurisdiction also appears in the Telephone Records and Privacy Protection Act, P.L. 109-476 ( H.R. 4709 ) that outlaws the purchase or receipt in interstate or foreign commerce of fraudulently obtained confidential telephone records, 18 U.S.C. 1039(b). The records in question are those of a "covered entity," i.e., telecommunications carriers and "any provider of IP-enabled voice service," proposed 1039(b),(h). The bill appears to be limited to the records of service provided within the United States, because, for among other reasons, the definition of carriers is taken from the Communications Act of 1934 (47 U.S.C. 153) that regulates communications services provided within the United States, 47 U.S.C. 152.

Without an express statement of exterritorial jurisdiction, the federal wiretap law, 18 U.S.C. 2510-2522, that now affords certain privacy protections for telephone communications has been held to have no extraterritorial application. On the other hand, the similarly silent wire fraud statute has been held to apply to at least some overseas violations. With the express statement, the proposed prohibition would appear to apply overseas where the offender is an American (nationality principle) or the records relate to services provided in the United States (territorial and passive personality principles).

A general statement proposal appeared as well in two bills that would have condemned certain forms of fraud by government contractors, the War Profiteering Prevention Act ( S. 2356 ), proposed 18 U.S.C. 1039(b), the Honest Leadership and Accountability in Contracting Act ( S. 2361 ), proposed 18 U.S.C. 1039(b), and the Real Security Act ( S. 3875 ), proposed 18 U.S.C. 1039(b). As in the case of the alien smuggling offenses, the courts have recognized extraterritorial jurisdiction over similar offenses previously, even in the absence of any explicit statutory statement. Possible ambiguity in the bills' prohibitions make it difficult to describe the intended reach of their statements of extraterritorial jurisdiction with any confidence. Both bills would have outlawed government contractor schemes to defraud the United States, but then would have gone on to proscribe various forms of price gouging and deception without indicating what nexus to the United States, if any, would have been required for this second set of crimes. Assuming these latter offenses encompassed contractor abuse in any war or military conflict and (except for jurisdictional purposes) regardless of the victim, the proposed general statement of extraterritorial jurisdiction would have permitted prosecution at a minimum when (1) the offense was committed in part within the United States (territorial principle), (2) the offense was committed by an American (nationality principle), or (3) the offense was committed against the United States (protective principle).

"If": Free Standing Statements

At least as often as Congress uses a general statement of extraterritorial jurisdiction, it will state in a separate clause, subsection or section that there is extraterritorial jurisdiction over a particular offense under certain designated circumstances. For instance, 50 U.S.C. 424 declares, "There is jurisdiction over an offense under section 421 of this title [relating to disclosure of the identity of covert agents] committed outside the United States if the individual committing the offense is a citizen of the United States or an alien lawfully admitted to the United States for permanent residence (as defined in section 1101(a)(2) of title 8)"(emphasis added). Statements of this kind serve to rebut any presumptions as to the purely domestic intent of Congress or as to the intent to conform to any conflicting principles of international law. On the other hand, by listing specific jurisdictional factors, Congress may be thought to have rejected application on the basis of unmentioned factors that might otherwise have been construed to support a claim of extraterritorial jurisdiction.

In the 109 th Congress, the immigration reform proposals exemplified this approach. The Comprehensive Immigration Reform Act ( S. 2611 as agreed to by the Senate), the Comprehensive Immigration Reform Act ( S. 2612 ), and the Securing America's Borders Act ( S. 2454 ) would have rewritten 18 U.S.C. ch. 75 relating to passport and visa offenses, and among other changes add a new section governing the extraterritorial application of the chapter, proposed 18 U.S.C. 1551(b):

(b) Any person who commits an offense under this chapter outside the United States shall be punished as provided under this chapter if â

(1) the offense involves a United States immigration document (or any document purporting to be such a document) or any matter, right, or benefit arising under or authorized by federal immigration laws;

(2) the offense is in or affects foreign commerce;

(3) the offense affects, jeopardizes, or poses a significant risk to the lawful administration of federal immigration laws, or the national security of the United States;

(4) the offense is committed to facilitate an act of international terrorism (as defined in section 2331) or a drug trafficking crime (as defined in section 929(a)(2)) that affects and would affect the national security of the United States;

(5) the offender is a national of the United States (as defined in section 101(a)(220 of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)) or an alien lawfully admitted for permanent residence in the United States (as defined in section 101(a)(12) of such Act); or

(6) the offender is a stateless person whose habitual resident is in the United States.

The specific jurisdictional circumstances in this proposed inventory reflected in part conditions under which the courts have approved extraterritorial application in the absence such a statement. Proposed section 1551(b)(1) would have grounded extraterritorial jurisdiction on the fact that the fraud or other offenses involved a U.S. immigration document. The courts have recognized extraterritorial jurisdiction in such cases in the past.

On the other hand, the proposed amendments to 18 U.S.C. ch.75 would have outlawed offenses involving foreign passports and passport offenses involving U.S. passports without regard to whether they were committed in frustration of U.S. immigration laws, proposed 18 U.S.C. 1541-1544. Under existing law, the courts faced with a comparable prohibition relating to U.S. passports and a statute silent as to extraterritorial jurisdiction would likely uphold overseas application under the protective principle. Under proposed section 1551(b) this option apparently would have been foreclosed, since the grounds for extraterritorial jurisdiction would have been specifically listed and the fact the offense involves a U.S. passport as such was not among them. The loss might have been minimal considering the scope of the grounds for extraterritorial jurisdiction under proposed section 1551(b).

Proposed section 1551(b)(2) would have permitted the exercise of extraterritorial jurisdiction over such offenses when they were committed "in or affect[ing] foreign commerce [of the United States]." The phrase bespeaks sweeping legislative authority when used in the context of interstate commerce where federalism cabins its scope. Even after Lopez and Morrison the lower federal appellate courts have suggested that a prosecution need rest on no more than a de minimis impact on interstate commerce. Its power over foreign commerce has been said to be at least equally robust. On its face the section apparently would have had sufficient breadth, for example, to permit U.S. prosecution of a foreign national using a forged foreign passport in connection with passage between two European cities aboard a cruise line ship of foreign registry but with American passengers who booked their cruise in the United States.

This may be further than the courts have been willing to go absent some other justification for jurisdiction. Nevertheless, they have upheld jurisdictional claims where the illicit activity in a foreign commercial environment had a real or potential substantial effect in this country. In United States v. Clark , 435 F.3d 1100 (9 th Cir. 2006), the defendant was convicted under a statute which applied to Americans who had traveled in foreign commerce prior to commission of the proscribed conduct overseas, 18 U.S.C. 2423(c). The court concluded that the statute came within Congress' legislative power under the commerce clause and that it might be applied to misconduct of Americans overseas. In United States v. Yousef , 327 F.3d 56, 110-11 (2d Cir. 2003), a terrorist plot to sabotage U.S. airlines overseas was thought to come within the protective principle since it was motivated by an effort to influence U.S. governmental policy.

Both proposed sections 1551(b)(3) and (4) would have been couched in terms of the national security interests of the United States, a standard the courts have generally recognized within the protective principle. Proposed section 1551(b)(5) would have been triggered when the offender was an American, again a commonly recognized basis for the assertion of extraterritorial jurisdiction. The final proposed jurisdictional section, 1551(b)(6), would have covered stateless persons who are "habitual" residents of the United States. A number of criminal statutes, recently enacted to implement our international obligations, use habitually residing, stateless offenders as a basis for extraterritorial application. This would have been another.

In another example, the narco-terrorism offense, 21 U.S.C. 960A, created in the USA PATRIOT Improvement and Reauthorization Act, outlaws overseas drug trafficking for the benefit of a foreign terrorist organization. It provides for extraterritorial jurisdiction if:

(1) the prohibited drug activity or the terrorist offense is in violation of the criminal laws of the United States;

(2) the offense, the prohibited drug activity, or the terrorist offense occurs in or affects interstate or foreign commerce;

(3) an offender provides anything of pecuniary value for a terrorist offense that causes or is designed to cause death or serious bodily injury to a national of the United States while that national is outside the United States, or substantial damage to the property of a legal entity organized under the laws of the United States (including any of its States, districts, commonwealths, territories, or possessions) while that property is outside of the United States;

(4) the offense or the prohibited drug activity occurs in whole or in part outside of the United States (including on the high seas), and a perpetrator of the offense or the prohibited drug activity is a national of the United States or a legal entity organized under the laws of the United States (including any of its States, districts, commonwealths, territories, or possessions); or

(5) after the conduct required for the offense occurs an offender is brought into or found in the United States, even if the conduct required for the offense occurs outside the United States. 21 U.S.C. 960A(b).

When the violation relies upon a violation of U.S. drug or terrorism laws, section 960A(b)(1) calls for application of the extraterritorial standard of the underlying drug or terrorism statute. Its arm is as long as that of its predicate offenses. Sections 960A(b)(3) and (4) mirror the nationality principle â the offender is an American or an American is the victim of the terrorism offense financed by the drug trafficking.

The two remaining sections are more expansive. The first, section 960A(b)(2), becomes operable if either the predicate drug trafficking or the predicate terrorism offense occur in or affect the interstate or foreign commerce of the United States. As is the case of the passport offenses mentioned earlier, without reference to such a provision the courts would probably find extraterritorial jurisdiction, when either predicate offense had a substantial impact in the United States. Section 960A(b)(2) is likely to encompass even more, for as previously indicated the "effect on commerce" standard is particularly sweeping, especially in a foreign commerce context.

The court in Yousef concluded that "terrorism â unlike piracy, war crimes, and crimes against humanity â does not provide a basis for universal jurisdiction, but found the exercise of jurisdiction justified on the basis of the protective principle. Section 960A(b)(5) codifies a universal principle for the narco-terrorism offense, i.e., there is extraterritorial jurisdiction if the offender is later brought to or travels to the United States.

The USA PATRIOT Improvement and Reauthorization Act has another example of extraterritorial jurisdiction defined by the existence of specific jurisdictional factors. It outlaws the destruction of vessels and maritime facilities, 18 U.S.C. 2290, and confers extraterritorial jurisdiction if (a) the offender or the victim is an American, (b) an American is aboard a targeted vessel, or (c) the target vessel is an American vessel. All of which would be consistent with the nationality and passive personality principles, and under some circumstances, with the territorial and protective principles.

The Trafficking Victims Protection Reauthorization Act, P.L. 109-164 , uses a comparable style when it creates a new offense that prohibits anyone employed by or accompanying the federal government overseas from engaging in conduct that would violate 18 U.S.C. ch. 77 (relating to peonage) or 18 U.S.C. ch. 117 (relating to travel for sexual purposes) if committed within the United States or the special maritime or territorial jurisdiction of the United States, 18 U.S.C. 3271.

The Military Extraterritorial Jurisdiction Act already holds accountable for overseas special maritime and territorial felonies anyone employed by or accompanying the armed forces of the United States, 18 U.S.C. 3261. ( H.R. 5212 would have amended section 3261 so that the act would have applied not only to felonies but to a range sexual offenses.) The act does not cover those employed by or accompanying federal entities other than the military departments or agencies and it does not cover misdemeanors (crimes punishable by a maximum term of imprisonment of one year or less), id.

The definition of special maritime and territorial jurisdiction fills some of the gaps, 18 U.S.C. 7(9). It makes the special maritime and territorial offenses applicable when committed by Americans on overseas federal installations or in the residences of personnel assigned to such facilities, id. The focus of 18 U.S.C. 3271 appears to be the misconduct which neither section 7(9) nor the Military Extraterritorial Jurisdiction Act can reach: (1) peonage and sexual transportation offenses committed overseas by foreign nationals employed by or accompanying federal entities other than the U.S. armed forces; and (2) such offenses committed overseas by Americans employed by or accompanying such entities when committed in locations other than federal facilities or related residences.

Rather than create a new crime but to much the same effect, the Federal Contractor Extraterritorial Jurisdiction for Human Trafficking Offenses Act ( S. 1226 ) would have added a jurisdictional statement to end of chapter 77 that would have prohibited government contractors from engaging in conduct that would violate 18 U.S.C. ch. 77 (relating to peonage) if committed within the special maritime or territorial jurisdiction of the United States, proposed 18 U.S.C. 1596. The result would have been much the same as under P.L. 109-164 : extraterritorial jurisdiction would have existed over (1) peonage offenses committed overseas by foreign nationals employed by or accompanying federal entities other than the U.S. armed forces; and (2) such offenses committed overseas by Americans employed by or accompanying such entities when committed in locations other than federal facilities or related residences, proposed 18 U.S.C. 1596.

Another proposal would have amended rather than created a separate jurisdictional statement. In its present form, the statement of extraterritorial jurisdiction in money laundering cases extends to cases involving more than $10,000 and either a United States citizen or conduct occurring in part within the United States, 18 U.S.C. 1956(f)(1). S. 2402 would have amended the section so it extends to cases involving more than $10,000 and either a United States citizen, conduct occurring in part within the United States, or conduct having an effect in the United States, proposed 18 U.S.C. 1956(f)(1).

Interwoven Statements

As a matter of style, the statements of extraterritorial jurisdiction are often interwoven among the elements of the offense rather than parsed out as a separate clause, subsection or section. Thus for instance, the treason statute outlaws treason when committed within the United States or elsewhere. The USA PATRIOT Improvement and Reauthorization Act supplies samples of this type of statute as well. It creates two new transportation offenses. One condemns anyone "who knowingly transports aboard . . . any vessel outside the United States and on the high seas or having United States nationality" explosives or certain other dangerous materials with the knowledge they are to be used to commit various crimes of terrorism, 18 U.S.C. 2283. The second uses the same "on the high seas or having United States nationality" language but applies it to the transportation of an individual known to be traveling to or from the commission of a crime of terrorism, 18 U.S.C. 2284.

Other than explosives, the materials whose transportation is covered in the new section 2283, biological weapons, chemical weapons, nuclear materials and the like, are subject of international treaties and agreements under which the United States is a party. Each of the criminal statutes enacted to implement those agreements provides for extraterritorial application. In the case of biological weapons, extraterritorial jurisdiction exists if the offender or victim of the offense is an American; for chemical weapons and weapons of mass destruction it also exists if the offense is committed against federal property whether within or outside the United States; for nuclear material offenses it also exists if the offender is later found in the United States.

The extraterritorial jurisdiction of the predicate terrorism offenses associated with section 2284 (transporting a terrorist) vary considerably, ranging from implicit, to general statements, to detailed specific statements of extraterritorial jurisdiction.

In the absence of a jurisdictional element, the offenses under sections 2283 and 2284 would have enjoyed the same extraterritorial application as the underlying predicate offenses. By making a jurisdiction factor an element of the offense, however, sections 2283 and 2284 preclude extraterritorial jurisdiction on any other basis.