Extraterritorial criminal jurisdiction.

AuthorFarbiarz, Michael
PositionAbstract through III. Fairness in Its Proper Place A. Actual-Conflict Cases and No-Conflict Cases, p. 507-533

Over and over again during the past few decades, the federal government has launched ambitious international prosecutions in the service of U.S. national security goals. These extraterritorial prosecutions of terrorists, arms traffickers, and drug lords have forced courts to grapple with a question that has long been latent in the law: What outer boundaries does the Constitution place on criminal jurisdiction? Answering this question, the federal courts have crafted a new due process jurisprudence.

This Article argues that this jurisprudence is fundamentally wrong. By implicitly constitutionalizing concerns for international comity, the new due process jurisprudence usurps the popular branches' traditional foreign relations powers. And in the name of protecting defendants' presumed interests, the new due process jurisprudence may end up badly undermining them by incentivizing a turn to harsher, alternative national security measures--drone strikes, for example, and military detention in Guantanamo Bay. Moreover, because of certain structural features of the international law enforcement system, U.S. courts have applied the new due process jurisprudence generally--perhaps even exclusively--in precisely that class of cases to which it should not be applied.

None of this needs to be. Borrowing from choice-of-law doctrine, I argue that a coherent due process jurisprudence would focus solely on the unfairness, if any, that flows from actual conflicts between federal criminal law and the local criminal law of the place where the defendant acted. A due process jurisprudence reformulated to focus on actual conflicts protects both the liberty of criminal defendants and global public safety.

TABLE OF CONTENTS INTRODUCTION I. EXTRATERRITORIAL DUE PROCESS A. The Prosecutions B. The Deep Problem of Extraterritorial Jurisdiction C. The Extraterritorial Due Process Doctrine and Its Impact D. The Theory of the Extraterritorial Due Process Doctrine II. AGAINST STRUCTURE A. Internal Limits: Article I and Graham B. Criminal Law and the Popular Branches III. FAIRNESS IN ITS PROPER PLACE A. Actual-Conflict Cases and No-Conflict Cases B. The Constitutional Necessity of a Threshold Conflict 1. Civil Cases: The Necessity of a Threshold Actual Conflict 2. From Civil to Criminal 3. The Added Impetus for Actual Conflicts in Criminal Cases 4. Fair Warning and Actual Conflict 5. Sentencing Conflicts C. A Reformulated Doctrine IV. JUDICIAL JURISDICTION V. ACTUAL CONFLICTS VI. A REFORMULATED DOCTRINE AND THE WAGES OF THE CURRENT APPROACH INTRODUCTION

American lawyers know all about the limits the Constitution places on jurisdiction in civil cases, like Pennoyer v. Neff (1) or International Shoe. (2) But constitutional limits on criminal jurisdiction have been much more obscure. This is because, for most of the nation's history, criminal prosecutions have been purely local affairs. When New York prosecutes a New York resident for a crime she committed in New York, questions of jurisdiction can be taken for granted; they do not warrant attention. But no longer. Over and over during the past few decades, the federal government has launched ambitious international prosecutions in the service of U.S. national security goals--prosecutions of terror leaders operating in Pakistan or Libya, of notorious global arms dealers working in Russia or Spain, and of violent drug lords based in Afghanistan or Colombia. These extraterritorial prosecutions seek to hold defendants accountable for their actions abroad, wholly outside the sovereign territory of the United States. And they force us to ask and answer a fundamental question that has long been latent in the law: Namely, what are the outer boundaries that the Constitution places on criminal jurisdiction?

To answer this question, the lower federal courts have spent decades crafting a sprawling new due process jurisprudence, which allows a federal criminal law to reach extraterritorial conduct only if that conduct has a connection or "nexus" to the United States. And at first glance, this new jurisprudence seems sensible. In an analogous context, the Supreme Court has long required what amounts to a nexus. (3) In particular, before state civil law is permitted to reach extraterritorial conduct--before, say, the tort law of Minnesota is allowed to reach a car accident in Wisconsin--due process requires a connection between the source of the law (Minnesota) and the event in question (the accident). (4) And leading scholars have argued that there is no reason not to subject federal criminal law to these same due process limits. (5)

I argue, however, that the new due process jurisprudence that has been developed in the criminal context is fundamentally wrong. It is only in extremely rare cases that due process, properly understood, requires a nexus to the United States as a predicate to the exercise of criminal jurisdiction. As things stand, though, due process is generally--if not exclusively--being brought to bear in precisely that class of cases to which it should not be applied. The real world costs of this are severe. Forcing the United States to forego major extraterritorial prosecutions harms global public safety. And in the name of protecting defendants' presumed interests, the new due process jurisprudence may end up badly undermining them, by incentivizing a turn to harsher, alternative national security measures--drone strikes, for example, and military detention in Guantanamo Bay. This Article argues that none of this is necessary. A coherent due process jurisprudence protects both the liberty of criminal defendants and U.S. national security.

Due process generally limits the law's extraterritorial reach for two reasons. The first is a concern for intergovernmental structure, for keeping sovereigns from interfering with each other. The second is a concern for protecting individual defendants from unfairness.

As I argue, the first concern, for intergovernmental relations, cannot be used to justify due process limits on the extraterritorial application of federal criminal law. Structural concerns about what will or will not lead to a rupture between national governments have long been understood as ultimately the province of the popular branches, not the courts. These structural concerns should not be implicitly constitutionalized--by transposing them into a due process jurisprudence whose purpose is to limit the popular branches and, if necessary, to override their decisions. Moreover, the Constitution already fixes the boundaries of federal law's reach--in Article I. And so there is no reason to press due process into service. Indeed, the Supreme Court has suggested, if only indirectly, that doing so would be improper. (6) Structural concerns, in sum, cannot provide a basis for due process limits on extraterritorial prosecutions.

This leaves fairness concerns. Fairness in this context means upsetting the defendant's expectations of the substantive law that she thought would apply to her conduct. Such an upending of expectations occurs only if there is a meaningful discrepancy--a conflict--between the U.S. criminal law the defendant is prosecuted under and the law that she expected would apply, the law of the place where the crime was committed.

When such a conflict exists, whether as to substantive criminal law or as to sentencing law, an extraterritorial prosecution should indeed be permitted to go forward only if there is a "nexus" to the United States. In the absence of such a conflict, there is no cognizable unfairness. In that circumstance, the federal government should be permitted to prosecute a defendant without any regard for the nexus that her conduct has to the United States. Some countries might object to such prosecutions--and I might, too. But protecting against international frictions is a matter for Congress and the President, not the stuff of judicially imposed constitutional constraints.

This Article proceeds in five Parts. Part I introduces the new due process jurisprudence that the courts have developed to restrain federal extraterritorial prosecutions. Part II argues that concerns for the structure of the international system cannot undergird that jurisprudence--which leaves concerns for preventing unfairness as the jurisprudence's sole predicate.

Reasoning from civil choice-of-law cases, Part III demonstrates that in the context of extraterritorial prosecutions, unfairness, properly understood, principally inheres in legal conflicts. The most pointed of these are "actual conflicts," in which the conduct that is the basis for the U.S. extraterritorial prosecution was legal under the law of the place where it was committed. Part IV shows that any unfairness caused by requiring a foreign defendant to stand trial in the United States should not be understood to trigger the due process protections at issue here. Doing so would collapse an important distinction in the law of jurisdiction--in the teeth of generations of Supreme Court admonitions to the contrary. Part V shows that there are, in fact, no (or virtually no) extraterritorial prosecutions that involve actual conflicts. This means that due process jurisprudence--which under current law is brought to bear across the board, to nearly all extraterritorial prosecutions--is being routinely applied to the very class of cases to which it should have no application, cases in which there is no actual conflict. Part VI concludes by demonstrating that a reformulated due process jurisprudence, focused tightly on actual conflicts and sentencing conflicts, protects public safety and national security and helps to ensure that defendants are treated fairly.

The Supreme Court has recently denied certiorari in a series of major extraterritorial prosecutions that turned on the new due process jurisprudence. (7) But that cannot last forever. The constitutional and practical stakes of these sorts of cases are too high. And...

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