Extraterritorial criminal jurisdiction.
As we saw above, unfairness in the context of due process limits on legislative jurisdiction means the upending of a defendant's expectations about the substantive law that she thought would control her conduct. (150) This upending of expectations is especially pointed in an actual-conflict case. The defendant thought she was following the law and turns out to have been breaking it--and is now being prosecuted for that surprising lawbreaking. There is little doubt that the extraterritorial due process doctrine should apply in a prosecution that involves an actual conflict--and that such a prosecution should therefore have to satisfy the doctrine's requirement of a "nexus" to the United States. The problem that the extraterritorial due process doctrine exists to solve (unfairness, in terms of upset expectations) is emphatically present in an actual-conflict case.
But no-conflict cases are different. The defendant knew that she was violating the criminal law, but did not know that, in addition to violating local criminal law, she was also violating U.S. criminal law. This is a less dramatic upending of expectations. The question, then, is this: If it is to be understood as based solely on fairness concerns, is there enough unfairness in the no-conflict scenario to justify application of the extraterritorial due process doctrine? This Section argues that the answer is largely "no." Section III.B. 1 begins with due process limits on legislative jurisdiction in civil cases. Such limits, I show, are triggered only when there is an actual conflict-- between one body of substantive law that might apply and another. Section 1II.B.2 argues that, before applying due process limits, it makes as much sense to require a threshold actual conflict in criminal cases as it does in civil cases. (151) Section III.B.3 goes further, explaining that there are stronger reasons to require an actual conflict in criminal cases than in civil ones. Section III.B.4 shows that requiring a threshold actual conflict would bring the extraterritorial due process doctrine into line with fair-warning law--a closely related due process doctrine that also requires an actual conflict, though not in so many words. Section III.B.5 broadens the argument, showing that due process protections should also be triggered when there is a "sentencing conflict"--a discrepancy between how a defendant is to be sentenced under U.S. law and how she might otherwise have been sentenced.
1. Civil Cases: The Necessity of a Threshold Actual Conflict
The Supreme Court has principally developed its jurisprudence of due process limits on legislative jurisdiction in the choice-of-law context. (152) These are civil cases, in which the plaintiff seeks application of one body of substantive law and the defendant seeks application of another. These cases typically follow the same three-step analytic progression.
In the first step, the court determines whether the potentially applicable bodies of substantive law do, in fact, actually conflict with one another. (153) After determining that there is an actual conflict, the court tentatively selects which of the potentially applicable bodies of substantive law to apply. (154) The court then moves to the third and final stage of the analysis--determining whether it is permissible under due process for the body of substantive law that the court has tentatively selected to govern the dispute. (155)
It makes sense that due process should come last. Like any constitutional question, the issue of whether due process prohibits the application of a given body of law should be avoided if possible. (156) A litigant may erroneously imagine (or hope for) a difference between bodies of relevant law when none exists. Comparison of the potentially applicable bodies of substantive law, right from the outset, may allow a court to dispose of the choice-of-law issue before having to reach the constitutional question that awaits at the end of the road. Resolving the first question (is there an actual conflict?) before the last question (is there a due process violation?) is thus a matter of prudence. But proceeding in that order is also legally required-because in the absence of an actual conflict, there can be no due process claim. Indeed, the Supreme Court has all but explicitly stated that rule. In Phillips Petroleum, one of the leading modern choice-of-law cases, Chief Justice Rehnquist framed the issue for eight Justices this way:
Petitioner contends that total application of Kansas substantive law violated the constitutional limits on choice of law.... We must first determine whether Kansas law conflicts in any material way with any other law which could apply. There can be no injury in applying Kansas law if it is not in conflict with that of any other jurisdiction connected to this suit. (157)
As Justice Stevens put it, writing for himself: "[A]bsent any conflict of laws, in terms of the results they produce, the Due Process Clause simply has not been violated.... In this case it is perfectly clear that there has been no due process violation because this is a classic 'false conflicts' case." (158)
In short, all nine Justices in Phillips Petroleum agreed that simply being subjected to a certain body of substantive law cannot, standing alone, be the basis of a due process claim. Rather, there must be a "material," "results"--impacting difference between the body of law that was imposed and "any other law which could apply." This is an actual conflict, and it is not surprising that the Supreme Court required such a conflict as a threshold matter before a due process claim could be pressed.
To see why, consider Allstate. In that case, Ralph Hague had three car insurance policies, each with Allstate; each policy provided for a recovery up to $15,000. (159) Ralph Hague was killed in an accident, and his wife Lavinia Hague sued Allstate. (160) Lavinia Hague argued that Minnesota tort law was controlling, and that under Minnesota law the three $15,000 insurance policies could be "stacked," such that she could recover $45,000. (161) Allstate countered that Wisconsin tort law was controlling, that Wisconsin law prohibited stacking, and that, accordingly, the maximum recovery was $15,000. (162) For Allstate, the difference between application of Minnesota law and Wisconsin law was worth something: $30,000, the difference between what Allstate would pay out if Wisconsin tort law applied versus what Allstate would pay out if Minnesota tort law applied. (163)
But what if there was no actual conflict? If Minnesota and Wisconsin law both allowed for a $15,000 recovery, it would make no practical difference for Allstate which body of tort law applied to the case. The case would come out the same under either body of law. In the absence of an actual conflict, nothing would turn on whether Minnesota law or Wisconsin law applied. And in that circumstance, Allstate could hardly claim that application of one of those bodies of law was so unfair that its due process rights were violated.
The point can be transposed into doctrinal terms. Due process claims can go forward only if there is a threshold deprivation of property (or, in an appropriate case, of life or liberty). (164) In turn, due process property is, (1) an "entitlement" that (2) has "monetary value." (165) And this definition is dispositive. In the absence of an actual conflict, even if Allstate had an entitlement to application of Wisconsin law, that entitlement would have had no monetary value. Allstate would have been required to pay out the same $15,000 whether it received its entitlement (and Wisconsin law applied) or whether it was deprived of its entitlement (because Wisconsin law was displaced and Minnesota law applied). In the absence of an actual conflict, the entitlement would be worthless. An entitlement that lacks all "monetary value" is not property, and if property is not at stake in a lawsuit there can be no due process claim. (166)
Nor is the logic of requiring a threshold actual conflict even particular to due process. Constitutional claims generally require some sort of real-world injury before they can go forward. (167) But the court's application of the wrong body of substantive law does not typically injure anyone unless something practical turns on which body of law applies. (168)
Take ex post facto law as an example. In that context, the defendant is very much arguing that the court applied the wrong body of law--the court applied the new law in force at the time of trial, not the old law in force at the time she acted. But in the ex post facto context, it is not generally enough that there be some sort of purely formal difference between these two bodies of law, old and new. (169) Rather, there must be a practical, bottom-line difference for the defendant, (170) and that is only logically possible if the old and new bodies of law are meaningfully different from each other--if there is between them what amounts to an actual conflict.
2. From Civil to Criminal
As we saw above, the extraterritorial due process doctrine must be grounded solely on a concern for fairness, generally understood as protecting against the upsetting of relevant expectations. (171) But expectations can only be upset when there is a discrepancy between baseline (what one expected would happen) and reality (what actually did happen)--in the case of legislative jurisdiction, a discrepancy between the substantive law that one expected would apply and the substantive law that did, in reality, apply. (172) If there is no actual conflict, then the only discrepancy between the expected body of substantive law and the applied body of substantive law is its source--in the example above, that one is Spanish substantive law and the other is U.S. substantive law. (173) But that formalistic distinction cannot amount to a constitutionally sufficient upsetting of expectations. Phillips Petroleum makes that clear. (174)
And there is no reason that the logic of Phillips Petroleum does not apply in criminal cases. In "every" case, due process has a role to play only after a threshold deprivation of life, liberty, or property. (175) But there can be no such deprivation unless we imagine that, but for the application of a particular body of substantive law, the defendant would have had more--more property, in a civil case like Phillips Petroleum, or more life or liberty, in a criminal case.
In short, just as a threshold actual conflict is required before a due process test is brought to bear with respect to civil legislative jurisdiction, so too a threshold actual conflict should generally be required before the due process nexus test applies to criminal legislative jurisdiction.
This point is underscored by the Supreme Court's reasoning in a now-obscure case, Nielsen v. Oregon. (176) In Nielsen, Washington and Oregon shared jurisdiction over a river. (177) Oregon's laws criminalized certain conduct, Washington's did not. (178) This amounted to an actual conflict and the Supreme Court ultimately vacated the Oregon conviction. (179) The Court framed the question as follows:
Where an act is ... prohibited and punishable by the laws of both States, the one first acquiring jurisdiction of the person may prosecute the offense.... [B]ut where as here the act is prohibited by one State and in terms authorized by the other, can the one state which prohibits, prosecute and punish for the act done within the territorial limits of the other? (180)
In the no-conflict scenario--"[w]here an act is ... prohibited and punishable by the laws of both States"--it does not much matter which body of criminal law is applied ("the one first acquiring jurisdiction of the person may prosecute the offense"). But if there is an actual conflict--if "the act is prohibited by one State and in terms authorized by the other"---harder questions about extraterritoriality begin to crop up. Why is it immaterial, in the absence of an actual conflict, which body of law is applied? Another court explained, in a case involving shared criminal jurisdiction over a bridge, that if the defendant's "conduct was in violation of the laws of both states," he "is hardly in a position to charge any basic unfairness." (181) In short, in criminal cases, no less than in civil ones like Phillips Petroleum, it is the existence of an actual conflict that triggers searching inquiry into the scope of legislative jurisdiction.
This conclusion gathers added force when we consider the alternative. If a threshold actual conflict were required before due process could be brought to bear in civil cases under Phillips Petroleum, but not in criminal cases, the result would be that U.S. civil legislative jurisdiction would be broader than U.S. criminal legislative jurisdiction. This is because there would be a class of cases--no-conflict cases--in which due process limits the reach of criminal legislative jurisdiction, but does not limit the reach of civil legislative jurisdiction.
An example helps to show how this would happen. Imagine that a company in France intentionally spews toxins; the toxins are inhaled by a Mexican national who then comes to the United States for a business trip--at which point he gets sick and is hospitalized. And imagine further that the tort law and the criminal law of all relevant entities are in perfect harmony--with no actual conflicts between France, Mexico, or the United States. (182) Because, under Phillips Petroleum, due process checks U.S. civil legislative jurisdiction only when there are actual conflicts, U.S. tort law could be applied to the French company's actions--regardless of whether there is a nexus to the United States that would be sufficiently strong to satisfy due process. But if, by contrast, due process checked U.S. criminal legislative jurisdiction whether there is an actual conflict or not, U.S. criminal law could be applied to the French company's actions only if there were a nexus to the United States strong enough to satisfy due process.
This would amount to a deep divergence between the reach of legislative jurisdiction in criminal cases versus civil ones. But the reach of a sovereign's extraterritorial power to prescribe should not substantially vary depending on whether the sovereign is prescribing standards of conduct backed by civil remedies or by criminal sanctions. The underlying jurisdictional bases are the same. (183) "The principles governing [extraterritorial] jurisdiction to prescribe ... apply to criminal as well as to civil regulation." (184) That is why the Supreme Court has directly analogized from the extent of Congress's extraterritorial criminal power to the extent of Congress's extraterritorial civil power. (185) That is why no one suggests that civil and criminal cases should be treated differently on a core question of extraterritorial legislative jurisdiction--whether Congress can reach into a foreign country and require a U.S. citizen living there to come back to the United States to testify. (186) And that is why one of the Supreme Court's major twentieth century precedents on the extraterritorial reach of criminal legislative jurisdiction, Skiriotes v. Florida, (187) was based principally on civil legislative jurisdiction decisions, (188) and why Skiriotes, the criminal legislative jurisdiction case, has principally influenced civil legislative jurisdiction decisions. (189)
3. The Added Impetus for Actual Conflicts in Criminal Cases
Section III.B.1 argued that there must generally be a threshold actual conflict before due process is brought into play to check the reach of civil legislative jurisdiction, and Section III.B.2 showed that an actual conflict is required in criminal cases as well. This Section argues that the constitutional necessity of an actual conflict looms even larger in criminal cases than civil ones.
To see the argument, start with a puzzle. The constitutional necessity of a threshold actual conflict is a foundational point. But so far as I can tell, this point has never been mentioned. Why? Until very recently, all of the cases regarding due process limits on legislative jurisdiction have been civil, not criminal. And in civil cases, the point that the Constitution requires an actual conflict has no substantial practical impact--and is therefore very hard to see. This lack of a practical impact in civil cases flows from two sources.
The first is litigation incentives. Civil legislative jurisdiction cases are typically choice-of-law cases, and choice of law is a famously complicated area, with a bad reputation: "[A] dismal swamp, filled with quaking quagmires, and inhabited by learned but eccentric professors who theorize about mysterious matters in a strange and incomprehensible jargon." (190) Lawyers who want to raise a choice-of-law argument must initiate themselves into the field's considerable mysteries. That is costly (191) and a strong financial disincentive to raising pointless arguments. There is little reason to argue about whether Minnesota or Wisconsin tort law applies if, because there is no actual conflict, the case will turn out the same either way. This means that even if there were not a threshold constitutional requirement of an actual conflict, civil litigants would, in any event, be incentivized to raise choice-of-law arguments only if there were, indeed, an actual conflict.
Then there is doctrinal structure. Recall that in the first step of a choice-of-law analysis, state choice-of-law rules generally require the court to determine if there is an actual conflict. If there is no actual conflict, the analysis ends; the third stage of the analysis, the due process stage, is never reached. If there is an actual conflict in the first stage, the analysis can then proceed--eventually reaching the due process stage. (192) This means that a court undertakes a due process analysis (in the third stage) only because it already found an actual conflict (in the first stage); the threshold of actual conflict must necessarily have been crossed before there is any consideration of due process. This is why, in the choice-of-law context, it does not generally matter whether due process is self-consciously understood to require an actual conflict. An actual conflict is already required--independently, at the first stage of the analysis. If only by misdirection, the due process obligation of a threshold actual conflict is virtually always satisfied.
But these two factors, doctrinal structure and litigation incentives, do not do the same work in criminal cases. As to doctrinal structure, in criminal cases, no preliminary legal inquiry requires the existence of an actual conflict. Accordingly, in criminal cases the constitutional actual conflict cannot be satisfied indirectly, by virtue of an actual conflict being required by some other part of the law. Rather, in criminal cases, if due process is not itself understood as requiring an actual conflict, then no actual conflict will be required at any point.
Nor do litigation incentives function in criminal cases as they do in civil ones. As noted above, in civil cases litigation incentives help to ensure that, whatever the law's formal dictates might be, there is always an actual conflict. If Minnesota and Wisconsin tort law do not actually conflict, there is no practical upside in convincing a Minnesota judge that due process prevents application of Minnesota law. Because if the judge is convinced, she will then just apply Wisconsin law--which, by hypothesis, is in harmony with Minnesota law anyway. But things are different in a criminal case. Convincing the Minnesota judge that due process prevents application of Minnesota criminal law will not cause the judge to apply Wisconsin criminal law. Indeed, the Minnesota judge cannot apply Wisconsin criminal law. (193) If the Minnesota judge is convinced that due process prevents application of Minnesota criminal law, the case will not simply toggle from one body of substantive law to another, as a civil action might. Rather, the criminal prosecution will be dismissed. (194) This is, again, a deep contrast. In a civil action, in the absence of an actual conflict there is generally no upside for the defendant in showing that due process prevents application of a certain body of law. In a criminal case, there is an enormous upside for the defendant in showing that due process prevents application of a certain body of law. That upside is dismissal of the prosecution, the greatest prize of all--and the defendant's incentive to pursue it has nothing to do with whether there is an actual conflict.
In short, the constitutional necessity of a threshold actual conflict need not be a self-conscious part of civil legislative jurisdiction law. Because of litigation incentives and doctrinal structure, legislative jurisdiction issues will generally be raised in civil cases only if there is an actual conflict. But that is not how things work in criminal cases. In criminal cases, if an actual conflict is not explicitly understood as a legally necessary threshold requirement, due process claims will be pressed by defendants even when there is no such conflict.
4. Fair Warning and Actual Conflict
Requiring a threshold actual conflict makes sense in criminal cases for another reason as well: it would bring the extraterritorial due process doctrine in line with its closest constitutional relation, fair-warning law. Fair warning is a due process doctrine with three canonical "manifestations": void-for-vagueness, the rule of lenity, and the rule against judicial interpretations of criminal statutes that retrospectively expand their scope. (195) In extraterritorial prosecutions, defendants have begun to press a novel kind of fair-warning claim. The most prominent case in this emerging area is United States v. Al Kassar. (196) As noted above, the lead defendant in Al Kassar was a Spanish citizen who worked, principally from Spain, to ship missiles to purported narco-terrorists in Colombia; the traffickers said they wanted the missiles to shoot down U.S. military personnel. (197) The Al Kassar defendants sought to vacate their convictions on fair-warning grounds, and the Second Circuit rejected their claim:
Fair warning does not require that the defendants understand that they could be subject to criminal prosecution in the United States so long as they would reasonably understand that their conduct was criminal and would subject them to prosecution somewhere. The defendants were not ensnared by a trap laid for the unwary. Supplying weapons illegally ... to a known terrorist organization with the understanding that those weapons would be used to kill U.S. citizens and destroy U.S. property is self-evidently criminal.... (198)
So too in United States v. Bin Laden, (199) the other leading case. That was a U.S. prosecution based on bombings of American embassies in Kenya and Tanzania. There, the court also rejected a fair-warning claim, because even if the defendant did not know the "breadth of the statutory framework that would serve as the basis for the [U.S.] charges against him--few defendants do--there is no room for him to suggest that he has suddenly learned that mass murder was illegal in the United States or anywhere else." (200)
All of this makes sense from a fairness perspective. "[T]he purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law." (201) It is unfair that a person who expects that he is conforming his conduct to the criminal law turns out, to his surprise, not to be. That can happen in the domestic context when, for example, a statute is vaguely worded. And it can happen in the extraterritorial context, when the crux of a defendant's claim is that he was not made aware (not fairly warned) of a switch--a switch from regulation of his conduct by one body of criminal law (the local criminal law of Spain, Kenya, or Tanzania) to regulation of that same conduct by another body of criminal law (U.S. criminal law, under which he is now being prosecuted).
But flipping between legal regimes does not threaten to undo the defendant's expectation that he has conformed his conduct to the law when there is no actual conflict between local law and U.S. law. Shipping missiles to narco-terrorists is "self-evidently criminal," a crime under the laws of any possibly relevant country. Accordingly, the Spanish defendant in Al Kassar could have conformed his conduct to U.S. law without being warned of its terms or applicability--effortlessly, simply by conforming his conduct to Spanish law. In Bin Laden, too. The Kenyan and Tanzanian bombers could have stayed on the right side of U.S. criminal law (which forbids murder) just by following Kenyan and Tanzanian criminal law (which also does). Murder is illegal everywhere; as in Al Kassar, it did not matter which bodies of criminal law applied because they all proscribed the same thing.
The fair-warning law that has begun to develop functions in the same way that, this Article argues, the extraterritorial due process doctrine should function. In each context, the mere application of U.S. criminal law to defendants' conduct abroad does not, standing alone, trigger a due process issue. Rather, due process enters the picture only when there is an actual conflict. This confluence is no coincidence. Properly understood, each due process doctrine flows from the same basic concern for upsetting the defendant's expectations with respect to the substantive criminal law he thought would govern his behavior. And these expectations cannot be upset if there is no deep disjunction, no actual conflict, between the body of criminal law (Spanish, Tanzanian, or Kenyan) that would have applied to the defendant and the body of criminal law (U.S. criminal law) that either was applied to the defendant, in the case of the extraterritorial due process doctrine, or that was applied to the defendant without sufficient warning, in the case of fair-warning law.
5. Sentencing Conflicts
To this point, this Article has considered only actual conflicts--in which a defendant's conduct was lawful under the substantive law of the place where she acted but unlawful under the law of the United States, where she was prosecuted. I have argued that an actual-conflict scenario should be understood to trigger application of due process checks on criminal legislative jurisdiction--but a no-conflict scenario should not.
But there should be no doubt that, even in no-conflict cases, deep discrepancies between U.S. sentencing law and the sentencing law that would otherwise have applied to the defendant should trigger application of due process protections. Sentencing in criminal cases is closely analogous to damages in civil cases; each is the follow-on consequence of a finding of liability. And in civil cases, large differences in how damages are to be calculated can emphatically trigger application of due process limits. Indeed, both Phillips Petroleum and Allstate involved differences between two bodies of law with respect to the permissible measure of damages. (202) The fact that deep conflicts in damages law in civil cases can trigger application of due process suggests that deep conflicts in sentencing law in criminal cases should also trigger application of due process.
This makes sense. Imagine if our hypothetical Spanish defendant had faced a five-year maximum sentence if she had been prosecuted in Spain, but, prosecuted in the United States, she now faces a fifty-year mandatory minimum sentence. This is closely analogous to an actual conflict--the law of the place where the defendant acted (Spanish sentencing law) permitted an outcome (freedom after five years in prison) that is essentially forbidden by the corresponding body of U.S. law.
If discrepancies in sentencing law regimes--I will call them "sentencing conflicts"--can trigger application of the extraterritorial due process doctrine, this raises a number of questions. For example, how different must two sets of sentencing laws be before the discrepancy between them triggers application of the due process "nexus" test? The Supreme Court has considered related questions in other areas of constitutional criminal law, (203) and they are hard.
But those questions are not especially important from a practical perspective. This is because sentencing is dynamic. For example, to facilitate extraditions from countries that want to cap their citizens' sentencing exposure, federal prosecutors routinely represent that if a certain extraterritorial prosecution is permitted to go forward, the United States will not seek a sentence above a given ceiling. (204) Against this backdrop, it would seem readily possible for U.S. prosecutors to wholly eliminate sentencing conflicts--and the due process-triggering unfairness that comes with them--simply by making binding representations that they will not seek certain penalties. For example, if a sentencing conflict results because the death penalty is available in the United States but not Spain, prosecutors can wholly eliminate that conflict by agreeing in advance not to seek the death penalty.
Accordingly, prosecutors can unilaterally transform scenarios that involve sentencing conflicts into no-conflict scenarios. In this sense, prosecutors could opt out of the extraterritorial due process doctrine, and its "nexus" requirement, by committing not to seek certain sentences. Sentencing conflicts would not lead, in practice, to the dismissal of any prosecutions. Rather, they would lead to something potentially important, but something much different--to some lower sentences. (205)
C. A Reformulated Doctrine
The extraterritorial due process doctrine, animated solely by concerns for fairness, (206) and reformulated in light of the arguments developed above, (207) would function as follows. In actual-conflict cases, the doctrine would apply as it does today--U.S. prosecutions could go forward only if they had a sufficient nexus to the United States.
In some no-conflict cases, in which there are sentencing conflicts, the extraterritorial due process doctrine would also apply. But such cases would, as a practical matter, melt away. This is because if the extraterritorial due process doctrine's strictures could not be satisfied in a given sentencing-conflicts case, prosecutors could, themselves, eliminate the conflict, by agreeing to cap the defendant's sentencing exposure. This would eliminate the unfairness of the sentencing conflict--and, with it, the need to apply the extraterritorial due process doctrine.
Finally, in some no-conflict cases, those that do not involve a sentencing conflict, the extraterritorial due process doctrine would not apply. Assuming no other impediments--Article I limits, for example--the federal government would be constitutionally permitted to prosecute a defendant without regard for the nexus that her conduct has or does not have to the United States. This would not be unfair to defendants--by hypothesis, there would be no actual conflict, and no sentencing conflict. And while some other nations might object to such prosecutions, protecting against international frictions is a matter for Congress and for the President, not for the courts and the Constitution. (208)
IV. JUDICIAL JURISDICTION
To this point, I have argued that the extraterritorial due process doctrine can potentially have traction in actual-conflict cases and in cases in which there is a sentencing conflict--but not otherwise. But how can this be? Spanish and U.S. law may both proscribe murder, and may both punish it in precisely the same way; there is no conflict of any kind. But application of U.S. criminal law to our hypothetical Spanish defendant means that she will be subject to prosecution in America, halfway around the world, a trial conducted before a foreign jury, in a foreign legal system, and in what is likely a foreign language. She will be away from the support of family and the comforts of home, in an American prison during a potentially long pretrial period and, in the event of a conviction, for a period afterward. These are serious concerns, and they certainly sound in unfairness and upsetting of expectations.
But none of these concerns is a reason to bring to bear due process limits on legislative jurisdiction. That is because these are all matters of judicial jurisdiction, of the burdens of being tried in a court that, to the defendant, seems terribly inconvenient--perhaps to the point of constitutional unfairness. But judicial jurisdiction is controlled by its own body of constitutional law. This is the difference in civil cases between Allstate (209) (legislative jurisdiction) and Pennoyer v. Neff (210) or International Shoe (211) (judicial jurisdiction); in criminal cases, this is the difference between Davis (212) or Yousef (213) (legislative jurisdiction) and Ker, Frisbie, or Alvarez-Machain (judicial jurisdiction). (214) And the Supreme Court has emphasized--over and over again, literally for generations--that judicial jurisdiction and legislative jurisdiction are separate, each controlled by its own body of law. (215)
In criminal cases, it has long been conventionally thought that U.S. courts may exercise judicial jurisdiction over any defendant physically before the court, (216) without regard to how the defendant got there. (217) To some observers, this can seem unfair. (218) But if judicial jurisdiction's purported unfairness is placed into starker relief by a lack of due process checks on legislative jurisdiction, then that may be a strong reason to work a change in judicial jurisdiction. But it is not a reason to expand due process checks on legislative jurisdiction, to apply such checks because of concerns that would otherwise be outside of its domains. (219) If it seems unfair to try our hypothetical Spanish defendant in the United States, few would suggest that the proper response is to do some tinkering and compensating in other areas of constitutional criminal law--by giving the defendant a right to an even speedier trial; by raising the burden of proof for her higher than "beyond a reasonable doubt"; by expanding her rights to challenge searches and seizures under the Fourth Amendment beyond everyone else's. Constitutional rights are not generally thought of as a system of free-form adjustments, where every action (this looks unfair) merits an equal and opposite--and ad hoc--reaction (so make that more fair over there). If there is unfairness in judicial jurisdiction law, it should not lead to a trimming of legislative jurisdiction's sails.
Perhaps, though, it might be argued that in the criminal context there is no meaningful difference between legislative and judicial jurisdiction---such that it makes sense to treat them as a single system. In civil cases, it might be said, a sovereign's courts can have jurisdiction, but the sovereign's substantive laws might not apply; judicial jurisdiction and legislative jurisdiction are thus separate. By contrast, it might be argued, in criminal cases this cannot happen--the sovereign's courts always apply the sovereign's substantive criminal laws, (220) so judicial jurisdiction and legislative jurisdiction collapse into one another.
But this is not persuasive. It is true that, in criminal cases, when a sovereign's courts have judicial jurisdiction (because the defendant is physically present before the court), the sovereign's courts never apply the substantive law of another sovereign. But that does not mean that the court always applies its own substantive criminal law. That is, indeed, what the extraterritorial due process doctrine is all about. In extraterritorial due process cases, the court has judicial jurisdiction--the defendant is physically present, there before the court. But then the court nonetheless considers whether it has legislative jurisdiction. Legislative jurisdiction does not follow inevitably from judicial jurisdiction in criminal cases. If it did, there would have been nothing to say in Davis, for example, other than "the defendant is here, so we apply U.S. criminal law." The reverse is also true. There have been criminal cases in which courts very clearly have legislative jurisdiction but then consider, separately, whether they have judicial jurisdiction. These are cases like United States v. Toscanino (221) and United States v. Anderson, (222) and, whatever else might be said about them, (223) those cases demonstrate that judicial jurisdiction is not understood to follow automatically from legislative jurisdiction in criminal cases.
Legislative jurisdiction and judicial jurisdiction are, in short, separate in civil cases--and in criminal ones, too. It does not make sense to solve a felt problem in one area of law by tinkering with what is another, separate body of law--by responding to perceived looseness in the law of judicial jurisdiction by tightening up the law of legislative jurisdiction beyond what is otherwise warranted. (224)
V. ACTUAL CONFLICTS
As argued above, a reformulated extraterritorial due process doctrine and its nexus test should be applied only in actual-conflict cases and in sentencing-conflict cases. (225) If it did apply only in those cases, the doctrine would, in practice, potentially lead to the quashing of prosecutions only in actual-conflict scenarios. (226) Under current law, however, the extraterritorial due process doctrine applies across the board--in actual-conflict cases, sentencing-conflict cases, and no-conflict cases. (227)
This Part shows that there is a large practical gulf between these two approaches. Because of certain major structural aspects of international law enforcement, extraterritorial prosecutions are overwhelmingly--perhaps exclusively--no-conflict cases. Concomitantly, when it comes to extraterritorial prosecutions, actual-conflict cases are exceedingly rare, if they exist at all. It bears noting at the outset that there is no ready way empirically to determine the relative prevalence of actual-conflict prosecutions and no-conflict prosecutions. But in the absence of empirical information, we can proceed by inference from the major structural forces that shape international-criminal-law enforcement: extradition, mens rea requirements, and international law.
First, the nature of extradition makes actual-conflict cases very rare. If two countries are parties to an extradition treaty, one country may request that a second country arrest an individual and send him to the first country for prosecution there. (228) The United States is a party to more than a hundred extradition treaties. (229) Each year the United States requests hundreds of extraditions from other countries, (230) and extradition is the standard means by which foreign defendants arrive in the United States after U.S. prosecutors charge them for conduct that took place abroad. (231) Every (or virtually every) U.S. extradition treaty includes a "dual criminality" requirement. (232) Under dual criminality, "an accused person can be extradited only if the conduct complained of is considered criminal ... under the laws of both the requesting and requested nations." (233) Accordingly, where dual criminality applies, a defendant cannot be extradited to the United States unless the U.S. crime with which he is charged is also, in substance, a crime in the country from which the defendant was extradited.
The dual criminality requirement works to eliminate actual conflicts. Indeed, in a nutshell, that is its function. If the charged defendant is liable under U.S. criminal law but is not liable under the law of the place from which extradition is sought, the dual criminality requirement would flatly bar extradition. No U.S. prosecution would even get underway. When there is an actual conflict, there is no dual criminality; and when there is no dual criminality, there is no extradition. (234)
Aside from extradition, mens rea requirements in U.S. criminal statutes also help make actual-conflict cases rare. Many major extraterritorial prosecutions concern violations of the federal terrorism laws. But the terrorism laws that apply extraterritorially generally include some sort of mens rea requirement. (235) Accordingly, a person can usually be charged with violating these laws only if the government can prove that she knew she was acting with the requisite mental state. And such proof would of course be hard to come by if there were an actual conflict--that is, if the conduct that forms the basis of the U.S. criminal charge was lawful in the place where it was undertaken. A person in Lebanon who gives money to Hezbollah may be less likely to think that this is wrongful, given that Hezbollah is currently the second-largest political party in Lebanon's parliament. Mens rea requirements, in short, tend to further reduce the number of actual conflicts in extraterritorial criminal prosecutions. If a criminal defendant is charged in the United States for conduct that was not a crime where it was undertaken, it would often be hard for U.S. prosecutors to prove that the defendant acted with the requisite mental state--and prosecutors of course do not seek to bring cases that they have little chance of winning.
Finally, large swaths of international law also tend to reduce the number of actual conflicts. There are a series of multilateral treaties in which large numbers of nations (including the United States) have committed to passing their own domestic criminal laws to proscribe certain agreed-on conduct. (236) An example is the Hague Convention for the Suppression of Unlawful Seizure of Aircraft. (237) Signed in 1970, the Convention described the offense of air piracy (hijacking), and it required each of the Convention's signatories to criminalize that offense under their domestic laws. (238) The Hague Convention now has 185 signatories; virtually every country in the world has signed on. (239) Such conventions greatly reduce the likelihood of an actual conflict. A defendant prosecuted in the United States for an extraterritorial hijacking is overwhelmingly likely to have acted in a country that, like the United States, has criminalized hijacking pursuant to the Hague Convention.
Aside from the Hague Convention, the United States has enacted a great many criminal statutes pursuant to obligations undertaken in multilateral international conventions. Some of these statutes are necessarily more obscure than others. But others are right in the mainstream of federal criminal law. The basic federal anti-narcotics statute is the Controlled Substances Act of 1970, (240) and that statute is used for vast numbers of prosecutions, including many important extraterritorial prosecutions. (241) Congress enacted the Controlled Substances Act in part to satisfy obligations that the United States had incurred in a multilateral treaty. (242) Similarly, terrorism cases are at the heart of contemporary extraterritorial prosecutions. And, by one count, Congress has passed more than twenty antiterrorism criminal statutes to satisfy multilateral treaty obligations. (243) Such statutes, by definition, criminalize conduct that is illegal not just in the United States, but also in many countries around the world.
In sum, in the context of extraterritorial prosecutions the number of actual conflicts is dramatically reduced by the combined effect of three major structural features of international-law enforcement: dual criminality obligations in extradition treaties, mens rea requirements, and modern multilateral treaties. These, together, make it exceedingly unlikely that when we speak of extraterritorial prosecutions we are speaking of actual-conflict cases--there may not even, in fact, be any.
This conclusion implies two important practical points. First, the reformulated extraterritorial due process doctrine that this Article proposes, which would do the large bulk of its work in actual-conflict cases, would lead to the short-circuiting of prosecutions only very rarely--because actual-conflict cases are themselves so rare. And second, the mirror-image point: current extraterritorial due process doctrine is not only jurisprudentially misguided, (244) but it is, in practice, vastly overbroad. Due process's major task, of precluding unfair prosecutions, should be accomplished in actual-conflict cases, I have argued. But because it is applied virtually across the board under current law, the extraterritorial due process doctrine is being applied to no-conflict cases. And this is not happening sometimes or even frequently. Rather, it is happening ubiquitously--perhaps every single time that the doctrine is applied.
VI. A REFORMULATED DOCTRINE AND THE WAGES OF THE CURRENT "APPROACH
I have argued that the extraterritorial due process doctrine should apply only when an extraterritorial prosecution is unfair to the defendant. (245) Protecting against such unfairness, a reformulated extraterritorial due process doctrine would be triggered in actual-conflict cases. (246) These cases are very rare, (247) but when they occur, prosecutors would be required to show a nexus to the United States. A reformulated extraterritorial due process doctrine would also apply to sentencing-conflict cases--but in those cases, the doctrine would likely melt away, leaving lower sentences for some defendants in its wake, but not to the dismissal of many cases. (248)
This is a much narrower extraterritorial due process doctrine than the one we have. I have explained from a jurisprudential perspective why, under current law, the extraterritorial due process doctrine is overbroad.
And none of this is abstract. There are important practical consequences of the gap between the broad, across-the-board due process doctrine that we currently have and the narrow due process doctrine that, I have argued, we should have. The most significant practical consequence may be the most obvious one: public safety is impacted. Under current law, major extraterritorial prosecutions are foregone because while it is clear that a given person is violating U.S. criminal law, it is not clear that the doctrine's "nexus" stricture can be satisfied. Abubakar Shekau, the leader of Boko Haram, the Nigerian terror group, is responsible for the deaths of many thousands of Africans, (249) and it seems perfectly clear that he has violated U.S. criminal law. (250) But could a U.S. prosecution of Shekau pass due process muster?
Under a reformulated extraterritorial due process doctrine, the prosecution could plainly proceed. There is no actual conflict because Sheku's wholesale murder and kidnapping are, of course, illegal everywhere. And if there is a sentencing conflict--because Sheku might be punished more harshly in the United States than he would be in Nigeria--that sentencing conflict can be removed if prosecutors agree to cap the punishment that Sheku might receive. In the absence of these conflicts, there is no unfairness to Sheku and the prosecution could proceed--even without showing a nexus to the United States. (251)
But could a prosecution proceed under the extraterritorial due process doctrine as it is currently formulated? That is doubtful, at least from the public record. The nexus between Boko Haram and the United States is not terribly robust, (252) and it seems unlikely that Sheku could therefore be prosecuted in the United States. Even though there is no unfairness to him in such a prosecution. Even though the United States is deeply invested in fighting Boko Haram. (253) Even if the Nigerian government, under the strain of a war with Boko Haram, asks the United States to mount the prosecution. (254) Even if Sheku flies into London, and the British will not extradite him to Nigeria for prosecution, for fear that Sheku will be tortured there. (255)
This is no surprise. The extraterritorial due process doctrine, as it exists under current law, is much broader than the reformulated doctrine that this Article proposes--and all other things being equal, the broader the reach of the doctrine, the fewer extraterritorial prosecutions there will be. The dynamic is a familiar one. Constitutional criminal rights increase the cost of prosecutions; because of the Fourth Amendment, for example, police cannot usually search a house without getting a warrant. The more something costs, the less we generally buy it. Raising the costs of prosecutions means that we get fewer prosecutions--but, hopefully, fewer prosecutions means better prosecutions. (256)
But in the context of extraterritorial prosecutions, this standard picture is not the whole one. The United States has mounted hundreds of lethal drone strikes. (257) It seems possible that there are terrorists who were targeted in U.S. drone strikes in part because federal prosecutors advised they could not satisfy the extraterritorial due process doctrine with respect to these terrorists--such that U.S. criminal justice was not an alternative option. (258) There is now a "strong preference for ... prosecution of terrorists." (259) But when that "approach is foreclosed" drone strikes may become an option (260)--and foreclosing the criminal "approach" is precisely what the extraterritorial due process doctrine sometimes does. Even in the absence of an actual conflict, due process, as it is conventionally understood under current law, limits an extraterritorial prosecution. But due process--again, as it is conventionally understood under current law--does not limit an extraterritorial missile strike. (261) This is more than a little ironic--and more perverse, even, than that.
In a similar vein, one wonders how many alleged terrorists have been consigned to local prosecutions, off-loaded to terribly rough criminal justice in Afghanistan or Somalia (262)--not prosecuted in the incomparably freer and fairer U.S. courts out of fealty to, of all things, the terrorists' own rights. Does consideration of a potential defendant's fair process rights (as instantiated in the extraterritorial due process doctrine, as currently formulated) lead to dramatically less in the way of fair process rights for the very same person?
And the same sorts of questions may be asked of Guantanamo Bay. Civil libertarians generally argue that Guantanamo detainees should be brought into the United States for ordinary criminal trials. But it seems possible that quietly vindicating one of a detainee's rights (his rights under the extraterritorial due process doctrine, as currently formulated) may ultimately preclude him from being vested with a whole range of other rights. Think of a Guantanamo Bay detainee whose actions do not reflect any nexus to the United States. Under the extraterritorial due process doctrine, as it is currently formulated, he cannot be transferred to a federal court in the United States for a civilian prosecution. And so the detainee may continue to be held in Guantanamo Bay, where a broad range of constitutional rights do not apply. (263)
When it comes to incapacitating ordinary criminals operating inside the United States, there is essentially only one option, the U.S. criminal justice system. But when it comes to certain classes of criminals who act extraterritorially--terrorists are the preeminent example--there are other options. U.S. criminal justice is just one "tool," to be used (or not) depending on a comparison with other "viable alternatives." (264) If the extraterritorial due process doctrine takes a U.S. criminal prosecution off the table, the remaining "viable alternatives" may be much less appealing from the perspective of the very person whose due process rights are being "vindicated." (265)
This is what makes the extraterritorial due process doctrine such an odd piece of constitutional criminal law. The doctrine does not work in the familiar way, protecting the defendant's rights, even at the cost (to society) of giving him a "windfall." Rather, the doctrine protects the defendant's rights, at the cost (to him) of taking away what, in the scheme of things, might be a better option--an American criminal trial. A criminal defendant whose rights are vindicated might ordinarily expect a benefit--suppression of evidence, for example. But in the context of the extraterritorial due process doctrine, criminal rights may well point in the opposite direction. Vindicating those rights can harm the hypothesized defendant. As currently formulated, the doctrine is overprotective, extending its protections to no-conflict cases when there is no basis for doing so--when there is no cognizable unfairness to protect against. In the end, the costs of an overprotective extraterritorial due process doctrine may be real-world underprotection, as people who might have become U.S. criminal defendants are subjected, by default, to different, harsher fates. Concerned about a kind of unfairness to defendants that does not much exist, the extraterritorial due process doctrine may, from the defendant's perspective, create its own unfairness.
And more than that. All would agree that if Congress and the President signed on, it would be lawful as a matter of domestic law to attack Syria--to fire missiles and drop bombs to punish Syria's chemical weapons use. (266) But imagine that U.S. policymakers wanted an additional option--the filing of criminal charges against Syrian officials who gassed Syrian civilians, (267) charges that would effectively prevent such officials from ever showing up in London or Lebanon or New York, for vacations or weddings or business opportunities or retirement, even decades from now, after memories of today's atrocities may have, tragically, faded. Could such criminal charges be filed? Probably not. There does not appear to be a tight "nexus" between the United States and Syria's use of chemical weapons within Syrian borders. And so under the extraterritorial due process doctrine as it is currently formulated, it would be difficult for the United States to prosecute Syrians who used chemical weapons in Syria. Even though the criminal prosecution, like the hypothesized U.S. attack on Syria, would have the goal of punishing chemical weapons use. Even though the criminal prosecution would harm many fewer innocent people than an attack. Even though the hypothesized criminal prosecution, like the hypothesized attack, would have the support of the two popular branches, the Congress that passed the relevant criminal statute and the executive branch that is seeking to enforce it. Even though the prosecution would not be unfair.
This does not make sense. With the backing of the Congress and the President, the Constitution allows the United States to act as the world's army, enforcing the global norm against chemical weapons use. But even with the backing of the Congress and the President, the Constitution, as currently interpreted in the extraterritorial due process doctrine, does not allow the United States to act as the world's police force. Distant horrors can be a casus belli. But under the extraterritorial due process doctrine as it is currently formulated, distant horrors cannot justify returning an indictment precisely because of their distance--their lack of connection and "nexus" to America. The law, I have shown, does not require this result. Truly horrible actions, like gassing civilians, are universally proscribed. They do not raise actual conflicts. With respect to legislative jurisdiction, prosecutions of such actions are limited by policymakers' decency and humility and good sense. But not by due process.
(1.) 95 U.S. 714 (1878).
(2.) Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945).
(3.) Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-13 (1981) (plurality opinion).
(5.) Lea Brilmayer & Charles Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 Harv. L. Rev. 1217, 1223-39 (1992).
(6.) See Graham v. Connor, 490 U.S. 386, 395 (1989) (rejecting the application of substantive due process to excessive force claims against law enforcement because the Fourth Amendment contains an "explicit textual source of constitutional protection").
(7.) E.g., Yousef v. United States, 135 S. Ct. 248, denying cert, to 750 F.3d 254 (2d Cir. 2014); Al Kassar v. United States, 132 S. Ct. 2374 (2012), denying cert, to 660 F.3d 108 (2d Cir. 2011).
(8.) See, e.g., Superseding Indictment, United States v. Ahmed, No. 12-661 (S-1) (SLT) (E.D.N.Y. Nov. 15, 2012), 2012 WL 6721134. The three non-U.S. citizen defendants in Ahmed were charged with providing material support to an African-based terrorist organization, based on training in Africa for anticipated combat in Africa. Mosi Secret, Three Men Appear in Court in Mysterious Terror Case, N.Y. Times (Dec. 21, 2012), http://www.nytimes.com/2012/ 12/22/nyregion/3-men-accused-of-training-with-al-shabab-appear-in-new-york-court.html [http://perma.cc/FZB4-FTN3].
(9.) See, e.g., J. Andrew Kent, Congress's Under-Appreciated Power to Define and Punish Offenses Against the Law of Nations, 85 Tex. L. Rev. 843 (2007); John H. Knox, A Presumption Against Extrajurisdictionality, 104 Am. J. Int'l L. 351 (2010); Eugene Kontorovich, Beyond the Article I Horizon: Congress's Enumerated Powers and Universal Jurisdiction over Drug Crimes, 93 Minn. L. Rev. 1191 (2009); Austen L. Parrish, Evading Legislative Jurisdiction, 87 Notre Dame L. Rev. 1673 (2012).
(10.) Brilmayer & Norchi, supra note 5, at 1230-31.
(11.) See infra Part II.
(12.) See, e.g., Anthony J. Colangelo, A Unified Approach to Extraterritoriality, 97 Va. L. Rev. 1019, 1103-10 (2011); Katherine Florey, State Courts, State Territory, State Power: Reflections on the Extraterritoriality Principle in Choice of Law and Legislation, 84 Notre Dame L. Rev. 1057, 1113-15 (2009); Jeffrey A. Meyer, Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of U.S. Law, 95 Minn. L. Rev. 110, 164-79 (2010).
(13.) E.g., Colangelo, supra note 12, at 1108; Anthony J. Colangelo, Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of National and International Law, 48 Harv. Int'l L.J. 121, 164-70 (2007).
(14.) See Brilmayer & Norchi, supra note 5, at 1223.
(15.) See id.; see also, e.g., United States v. Verdugo-Urquidez, 494 U.S. 259, 279-80 (1990) (Brennan, J., dissenting).
(16.) United States v. Ghailani, 733 F.3d 29, 38 (2d Cir. 2013); In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 101-08 (2d Cir. 2008).
(17.) E.g., United States v. Suarez, No. 11 Cr. 836(KBF), 2014 WL 1998234, at *2 (S.D.N.Y. May 15, 2014).
(18.) E.g., United States v. Bout, 731 F.3d 233, 237 (2d Cir. 2013); United States v. Al Kassar, 660 F.3d 108, 116-17 (2d Cir. 2011).
(19.) Brilmayer & Norchi, supra note 5, at 1223; accord David S. Kris, Law Enforcement as a Counterterrorism Tool, 5 J. Nat'l Security L. & Pol'y 1, 1-3 (2011).
(20.) E.g., Barack Obama, Presidential Policy Directive on Sub-Saharan Africa (June 14, 2012), https://www.whitehouse.gov/sites/default/files/docs/africa_strategy_2.pdf [https://per ma.cc/2Q7S-BN9P].
(21.) Affirmation of Benjamin Naftalis at 3-4, United States v. Warsame, No. 1:11-cr-00559 (S.D.N.Y. Mar. 26, 2013) (describing defendant leading hundreds of fighters in battle on behalf of group at war with Somali government).
(22.) United States v. Belfast, 611 F.3d 783, 793-800 (11th Cir. 2010) (describing torture of Liberian civilians by senior Liberian government official).
(23.) Press Release, U.S. Attorney's Office, S.D.N.Y., Manhattan U.S. Attorney Announces Arrests of Drug Kingpin Jose Americo Bubo Na Tchuto, the Former Head of the Guinea-Bissau Navy, and Six Others for Narcotics Trafficking Offenses (Apr. 5, 2013), http://www.justice.gov/ usao/nys/pressreleases/April13/GuineaBissauArrestsPR.php?print=1 [http://perma.cc/52UFFHVX] (describing prosecution of a senior Guinea-Bissau government official for large-scale narcotics offenses in Guinea-Bissau).
(24.) Colin H. Kahl et al., If All Else Fails: The Challenges of Containing a Nuclear-Armed Iran, Center for a New American Security, 7-9, 11 (2013), http://www.cnas.org/sites/ default/files/publications-pdf/CNAS_IfAllElseFails.pdf [http://perma.cc/VP4N-LHG4].
(25.) U.S. Dep't of Justice, Summary of Major U.S. Export Enforcement, Economic Espionage, Trade Secret and Embargo-Related Criminal Cases (Jan. 23, 2015), http://www.justice.gov/ sites/default/files/nsd/pages/attachments/2015/01/23/export-case-list-201501.pdf [http://perma .cc/YPT5-5GDW] (listing prosecutions).
(26.) E.g., U.S. Sec'y of State, Report on International Extradition, at tbl.B (Jan. 17, 2001), http://www.state.g0v/s/l/16162.htm [http://perma.cc/WA5F-TLYB].
(27.) See Mark Bowden, Killing Pablo: The Hunt for the World's Greatest Outlaw 61-201 (2001).
(28.) Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (quoting Great S. Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1998)).
(29.) Restatement (Third) of the Foreign Relations Law of the United States [section] 401(b) (Am. Law Inst. 1987).
(30.) 95 U.S. 714 (1878).
(31.) Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945).
(32.) See Restatement (Third) of the Foreign Relations Law of the United States [section] 401(a) (Am. Law Inst. 1987).
(33.) E.g., Phillips Petrol. Co. v. Shutts, 472 U.S. 797, 814-23 (1985) (imposing due process limits on state's extraterritorial application of its substantive law); Allstate Ins. Co. v. Hague, 449 U.S. 302, 326-31 (1981) (plurality opinion) (same).
(34.) See John Bernard Corr, Criminal Procedure and the Conflict of Laws, 73 Geo. L.J. 1217, 1217 n.1 (1985); Daniel L. Rotenberg, Extraterritorial Legislative Jurisdiction and the State Criminal Law, 38 Tex. L. Rev. 763, 767 (1960).
(35.) Joseph Story, Commentaries on the Conflict of Laws 516 (Arno Press 1972) (1834); accord Rafael v. Verelst (1776) 96 Eng. Rep. 621 (KB) 622; 2 Black W. 1055, 1058 ("Crimes are in their nature local, and the jurisdiction of crimes is local.").
(36.) See U.S. Const, amend. VI (requiring that "all criminal prosecutions" proceed in the "district wherein the crime shall have been committed"). But cf. 3 A Systematic Arrangement of Lord Coke's First Institute of the Laws of England 363 (J.H. Thomas ed., London, S. Brooke 1818) (discussing certain transitory crimes that could be tried anywhere in England).
(37.) Restatement (Second) of Conflict of Laws [section] 89, cmt. e (Am. Law Inst. 1971); see also The Antelope, 23 U.S. (10 Wheat.) 66, 123 (1825) (Marshall, C.J.) ("The Courts of no country execute the penal laws of another....").
(38.) There were of course occasional cases that entailed border crossing; a gun fired in Massachusetts might kill a person in Connecticut. Even in those cases, though, the law was concerned almost exclusively with the question of where the crime had been committed, where its "gist" was. See Wendell Berge, Criminal Jurisdiction and the Territorial Principle, 30 Mich. L. Rev. 238, 239-44 (1931) (discussing the various legal fictions that courts used to reconcile elements of a crime occurring in multiple jurisdictions); Rollin M. Perkins, The Territorial Principle in Criminal Law, 22 Hastings. L.J. 1155, 1157-61 (1971) (discussing a restricted application of the territorial principle in which the situs of a crime was where the actor's bodily movements "took effect").
(39.) See Berge, supra note 38, at 248-59 (describing relevant history); Larry Kramer, Comment, Jurisdiction over Interstate Felony Murder, 50 U. Chi. L. Rev. 1431, 1436-38 (1983) (same).
(40.) To some, this basic contradiction may suggest that extraterritorial prosecutions are, as a class, unlawful. But that argument is not available. Though they have become more common only recently, the Constitution envisions extraterritorial prosecutions. See U.S. Const. art. I, [section] 8 ("The Congress shall have Power To ... define and punish ... Felonies committed on the high Seas...."); id. art. III, [section] 2 (describing venue rule when a crime is "not committed within any State"). Indeed, the first federal criminal statute created certain extraterritorial offenses, Crimes Act of 1790, [section] 8, 1 Stat. 112, and courts have long held that "any state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends." United States v. Aluminum Co. of Am., 148 F.2d 416, 443 (2d Cir. 1945) (L. Hand, J.); accord Strassheim v. Daily, 221 U.S. 280, 284-85 (1911) (Holmes, J.). Note that these cases do not purport to consider whether due process may limit the exercise of a sovereign's criminal jurisdiction outside its borders.
(41.) 660 F.3d 108 (2d Cir. 2011).
(42.) See Al Kassar, 660 F.3d at 115-16.
(44.) Id. at 116-17.
(45.) 905 F.2d 245 (9th Cir. 1990).
(46.) Al Kassar, 660 F.3d at 118 (quoting Davis, 905 F.2d at 248-49).
(47.) See e.g., United States v. Mohammad-Omar, 323 F. App'x 259, 261 (4th Cir. 2009) (applying Davis standard); see also United States v. Ayesh, 762 F. Supp. 2d 832, 841-42 (E.D. Va. 2011) (same), aff'd, 702 F.3d 162 (4th Cir. 2012); United States v. Shahani-Jahromi, 286 F. Supp. 2d 723, 727-28 (E.D. Va. 2003) (same). But see United States v. Brehm, 691 F.3d 547, 552--54 (4th Cir. 2012) (not following prior Fourth Circuit law on this point).
(48.) See e.g., United States v. Zakharov, 468 F.3d 1171, 1177 (9th Cir. 2006). To be sure, Davis has not been followed everywhere. In the D.C. Circuit, for example, the question whether a "nexus" is required has not yet been reached and resolved. See United States v. Ali, 718 F.3d 929, 943-44 (D.C. Cir. 2013). And some other courts have suggested that due process does not require a "nexus" to the United States. Dan E. Stigall, International Law and Limitations on the Exercise of Extraterritorial Jurisdiction in U.S. Domestic Law, 35 Hastings Int'l & Comp. L. Rev. 323, 359-75 (2012). But most of these cases come out of circuits that handle only a small portion of major extraterritorial prosecutions. And, in any event, most of these cases require something quite a bit like a "nexus," though not in so many words. These cases generally look to international law, and international law in this area "presupposes a nexus." Id. at 380.
(49.) Restatement (Third) of the Foreign Relations Law of the United States [section] 401(a) (Am. Law Inst. 1987).
(50.) The extraterritorial due process doctrine is not concerned with judicial jurisdiction. Judicial jurisdiction is about the power of a sovereign's courts to adjudicate a given case. See id. [section] 401(b). Judicial jurisdiction is generally thought to be established in criminal cases by the simple fact that the defendant is physically present before the court. See infra note 216 and accompanying text.
(51.) The doctrine may not apply to piracy cases. E.g., United States v. Shi, 525 F.3d 709, 723-724 (9th Cir. 2008). But those cases are rare, and sui generis. W.E. Beckett, The Exercise of Criminal Jurisdiction over Foreigners, Brit. Y.B. Int'l L., vol. 6, 1925, at 45 ("Piracy stands on such an exceptional basis that it throws no light on the question of penal jurisdiction generally."). Moreover, the doctrine may not apply to cases involving conduct on "stateless" ships on the high seas. E.g., United States v. Juda, 46 F.3d 961, 966-67 (9th Cir. 1995). But, again, those are rare. This Article does not address these classes of cases, and it does not address "stings"--undercover investigations in which government agents, it is sometimes charged, function as agents provocateur. Those, too, raise their own issues.
(52.) See United States v. Perlaza, 439 F.3d 1149, 1169 (9th Cir. 2006).
(53.) Cf. William J. Stuntz, Plea Bargaining and Criminal Law's Disappearing Shadow, 117 Harv. L. Rev. 2548, 2566-67 (2004) (contrasting crimes, like locally committed murders, that are "mandatory" and must be pursued, with discretionary investigations that federal prosecutors, "free agents," are able to select and pursue).
(54.) Cf. Sudha Setty, Comparative Perspectives on Specialized Trials for Terrorism, 63 Me. L. Rev. 131, 141 (2010) (describing "political traction" of claim that Guantanamo detainees should not be brought to the United States for trial because of acquittal risk).
(55.) 327 F.3d 56, 111 (2d Cir. 2003) (citing United States v. Davis, 905 F.2d 245, 248-49 (9th Cir. 1990)).
(56.) United States v. Davis, 905 F.2d 245, 248-49 (9th Cir. 1990) (citing United States v. Peterson, 812 F.2d 486, 493 (9th Cir. 1987)).
(57.) United States v. Peterson, 812 F.2d 486, 493-94 (9th Cir. 1987) (first citing United States v. Marino-Garcia, 679 F.2d 1373, 1378 n.4 (11th Cir. 1982); then citing United States v. Baker, 609 F.2d 134 (5th Cir. 1980); and then citing United States v. Pizzarusso, 388 F.2d 8, 10-11 (2d Cir. 1968)).
(58.) See United States v. Marino-Garcia, 679 F.2d 1373, 1378 n.4 (11th Cir. 1982); United States v. Pizzarusso, 388 F.2d 8, 10-11 (2d Cir. 1968).
(59.) United States v. Baker, 609 F.2d 134, 136 (5th Cir. 1980).
(60.) 449 U.S. 302, 305 (1981) (plurality opinion).
(61.) Allstate, 449 U.S. at 304, 307-08.
(62.) Id. at 312-13.
(63.) See United States v. Shahani-Jahromi, 286 F. Supp. 2d 723, 727-28 (E.D. Va. 2003) (noting similarity between the Davis "nexus" standard and Allstate). But cf. United States v. Ali, 718 F.3d 929, 943-44 (D.C. Cir. 2013) (rejecting the defendant's analogies to personal jurisdiction jurisprudence while suggesting that courts have sometimes borrowed personal jurisdiction language in addressing extraterritorial due process claims).
(64.) Allstate, 449 U.S. at 313.
(65.) United States v. Davis, 905 F.2d 245, 248-49 (9th Cir. 1990).
(66.) Allstate, 449 U.S. at 313.
(67.) Davis, 905 F.2d at 248-49.
(68.) See Brilmayer & Norchi, supra note 5, at 1224-39.
(69.) Id. at 1253.
(70.) United States v. Yousef, 327 F.3d 56, 111 n.45 (2d Cir. 2003).
(71.) Terry S. Kogan, Toward a Jurisprudence of Choice of Law: The Priority of Fairness over Comity, 62 N.Y.U. L. Rev. 651, 651-53 (1987) (collecting numerous references); accord Willis L.M. Reese, Legislative Jurisdiction, 78 Colum. L. Rev. 1587, 1589 (1978).
(72.) I Laurence H. Tribe, American Constitutional Law 794-95 (3d ed. 2000).
(73.) Richard Primus, The Limits of Enumeration, 124 Yale L.J. 576, 578 (2014) (explaining Tribe's dichotomy).
(74.) E.g., Nat'l Fed'n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2578 (2012) (describing the "general power of governing, possessed by the States ... as the 'police power,'" and noting that, pursuant to this power, states "can and do perform many of the vital functions of modern government," including policing, education, and zoning).
(75.) E.g., id. ("The Constitution may restrict state governments--as it does, for example, by forbidding them to deny any person the equal protection of the laws. But where such prohibitions do not apply, state governments do not need constitutional authorization to act.").
(76.) 33 U.S.C. [section][section] 1251-1387 (2012).
(77.) Int'l Paper Co. v. Ouellette, 479 U.S. 481, 494 (1987) (holding that the Clean Water Act preempts state law that impedes federal efforts to eliminate water pollution or interferes with its chosen methods of doing so).
(78.) See City of Philadelphia v. New Jersey, 437 U.S. 617, 624-25 (1978) (establishing "a per se rule" invalidating "simple economic protectionism" by states under the Dormant Commerce Clause).
(79.) See, e.g., Sebelius, 132 S. Ct. at 2577-78 (providing a history of this idea).
(80.) Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803).
(81.) U.S. Const, art. I, [section] 8, cl. 4.
(82.) Id. cl. 3.
(83.) See, e.g., Sebelius, 132 S. Ct at 2578.
(84.) See Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-13 (1981) (plurality opinion).
(85.) Int'l Shoe Co. v. Washington, 326 U.S. 310, 315-16 (1945).
(86.) 514 U.S. 549 (1995).
(87.) Lopez, 514 U.S. at 567-68.
(88.) E.g., United States v. Comstock, 560 U.S. 126 (2010); Sabri v. United States, 541 U.S. 600 (2004); United States v. Morrison, 529 U.S. 598 (2000).
(89.) 46 U.S.C. [section][section] 70501-70508 (2012).
(90.) Kontorovich, supra note 9, at 1193.
(91.) 700 F.3d 1245 (11th Cir. 2012).
(92.) Bellaizac-Hurtado, 700 F.3d at 1249-58 (construing the Law of Nations Clause, U.S. Const, art. I, [section] 8, cl. 10). The other circuit that sees frequent MDLEA prosecutions is the First, which includes Puerto Rico. The First Circuit seems poised to rein in the MDLEA on internal limits grounds. One influential First Circuit judge has pressed that position in a lengthy dissent. United States v. Cardales-Luna, 632 F.3d 731, 739-51 (1st Cir. 2011) (Torruella, J., dissenting). The "force[ ]" of this position has been acknowledged by the First Circuit. Id. at 737 (majority opinion). But a case that presents the issue in a de novo procedural posture has not yet come up. See United States v. Nueci-Pena, 711 F.3d 191, 198 (1st Cir. 2013); Cardales-Luna, 632 F.3d at 737.
(93.) E.g., United States v. Campbell, 743 F.3d 802, 810 (11th Cir. 2014) (measuring reach of extraterritorial criminal statute against scope of Article I power under Piracies and Felonies Clause); United States v. Brehm, 691 F.3d 547, 551 n.4 (4th Cir. 2012) (same, Raise and Support Armies Clause); United States v. Pendleton, 658 F.3d 299, 307-08 (3d Cir. 2011) (same, Foreign Commerce Clause); United States v. Belfast, 611 F.3d 783, 804-09 (11th Cir. 2010) (same, Necessary and Proper Clause); United States v. Clark, 435 F.3d 1100, 1114 (9th Cir. 2006) (same, Foreign Commerce Clause); United States v. Bredimus, 352 F.3d 200, 204-08 (5th Cir. 2003); (same, Foreign Commerce Clause); see also United States v. Yunis, 681 F. Supp. 896, 907 n.24 (D.D.C. 1988) (striking down various extraterritorial hijacking charges as beyond Congress's Article I powers).
(94.) Brilmayer and Norchi argue that there is no reason why state and federal law should be treated differently from the perspective of due process limits on legislative jurisdiction.
Brilmayer & Norchi, supra note 5, at 1224-40. But the argument in the text is one such reason. That external limits (like due process) are necessary to curb state law does not mean that they are needed for curbing federal law--where the hounds of legislative jurisdiction are already policed, by the internal limits of Article I.
(95.) Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)); accord County of Sacramento v. Lewis ex rel. Estate of Lewis 523 U.S. 833, 842 (1998).
(96.) Graham v. Connor, 490 U.S. 386, 395 (1989). As a doctrinal matter, this argument is not free from doubt. For example, the Supreme Court has not yet explained whether Graham applies when the "explicit textual source" is Article I, not a constitutional amendment--though it is hard to see why it should not. See United States v. Lanier, 520 U.S. 259, 272 n.7 (1997) (describing Graham as applying to "specific constitutional provision/s], such as the Fourth or Eighth Amendment[s]" (emphasis added)). Moreover, the Court has not said whether Graham applies only as a counterweight to the expansiveness of substantive due process--in which case it might not apply to due process checks on legislative jurisdiction. But Graham does not seem confined only to substantive due process. See United States v. James Daniel Good Real Prop., 510 U.S. 43, 50-51 (1993) (declining to apply Graham in a procedural Due Process case--but not suggesting that the principle does not apply, as a categorical matter, in such cases). Rather, Graham appears to be an instantiation of the idea that the specific trumps the general, see Turner v. Rogers, 131 S. Ct. 2507, 2522 (2011) (Thomas, J., dissenting) (suggesting as much for four Justices), in which case it should apply in all Due Process contexts.
(97.) See, e.g., United States v. Lopez, 514 U.S. 549, 584-602 (1995) (Thomas, J., concurring) (arguing that the Article I commerce power has been too permissively construed by the Supreme Court); cf. Bond v. United States, 134 S. Ct. 2077, 2098-3012 (2014) (Scalia, J., concurring) (arguing that Article I Necessary and Proper Clause powers have been construed too permissively by the Supreme Court).
(98.) For example, Judge Torruella's concerns about the permissiveness of Article I, see, e.g., United States v. Cardales-Luna, 632 F.3d 731, 739-51 (1st Cir. 2011) (Torruella, J., dissenting); United States v. Angulo-Hernandez, 565 F.3d 2, 20 (1st Cir. 2009) (Torruella, J., concurring in part and dissenting in part), appear to have led him toward embracing due process limits on federal legislative jurisdiction. See Angulo-Hernandez, 632 F.3d at 19.
(99.) Lewis, 523 U.S. at 843-45 (suggesting it is).
(100.) The Supreme Court, in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315-18 (1936), made the "remarkable claim that the [federal] foreign affairs powers are inherent and not dependent on enumeration [in the Constitution]." David M. Golove, Against Free-Form Formalism, 73 N.Y.U. L. Rev. 1791, 1906 n.347 (1998). This might suggest that the idea of "internal limits" developed in the text has no traction here, because federal extraterritorial power is not limited by the enumerated powers of Article I. But whatever might generally be said about it, Curtiss-Wright has been rejected in this context across the board. The courts have rejected it--testing extraterritorial statutes against the bounds of particular Article I enumerated powers, not an "inherent" powers concept. See supra note 93. Congress, too: extraterritorial criminal statutes have been enacted based on enumerated Article I powers, not "inherent" powers. See, e.g., United States v. Brehm, 691 F.3d 547, 551 n.4 (4th Cir. 2012) (explaining that the House cited several Article I justifications for the passage of the Military Extraterritorial Jurisdiction Act); United States v. Pendleton, 658 F.3d 299, 302 n.1 (3d Cir. 2011) (explaining that the House based its authority to enact the Sex Tourism Prohibition Improvement Act of 2002 on the 'Commerce Clause of Article I); Kent, supra note 9, at 861-64 (detailing a number of recent congressional invocations of the Law of Nations Clause of Article I to support the enactment of various pieces of legislation). And the executive has defended extraterritorial statutes based on the reach of specific Article I powers, not based on "inherent" power; that is clear from the reports of the cases collected above. See supra note 93 and accompanying text.
(101.) See supra notes 94-96 and accompanying text.
(102.) See supra notes 60-61 and accompanying text.
(103.) Allan Erbsen, Horizontal Federalism, 93 Minn. L. Rev. 493 (2008) (describing horizontal federalism).
(104.) 281 U.S. 397, 407-08 (1930).
(105.) See Dick, 281 U.S. at 407-08.
(106.) U.S. Const, art. IV, [section]1; Baker v. Gen. Motors Corp., 522 U.S. 222, 233 (1998) ("Regarding judgments ... the full faith and credit obligation is exacting. A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land.").
(107.) Donald Earl Childress III, When Erie Goes International, 105 Nw. U. L. Rev. 1531, 1552 n.161 (2011).
(108.) Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249, 259-60 (1992).
(109.) United States v. Belmont, 301 U.S. 324, 330 (1937); Anthony J. Bellia Jr. & Bradford R. Clark, The Political Branches and the Law of Nations, 85 Notre Dame L. Rev. 1795, 1801-02 (2010); see also Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 413 (2003); Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 383-86 (2000).
(110.) Garamendi, 539 U.S. at 413; Crosby, 530 U.S. at 371-74; see also, e.g., Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 450-51 (1979) (curbing international reach of state law to permit the nation to "speak with one voice" abroad).
(111.) E.g., Daimler AG v. Bauman, 134 S. Ct. 746, 763 (2014) (noting that "foreign governments' objections to some domestic courts' expansive views of general jurisdiction have in the past impeded negotiations of international agreements" by the federal government) (quoting Brief for the United States as Amicus Curiae Supporting Petitioner at 2, Daimler AG v. Bauman, 134 S. Ct. 746 (2014) (No. 11-865), 2013 WL 3377321); Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 115 (1987) (reversing state assertion of jurisdiction and noting that a "careful inquiry" is necessary, one that assesses, among other things, "the Federal Government's interest in its foreign relations policies").
(112.) E.g., Garamendi, 539 U.S. at 413 (describing "the Constitution's allocation of the foreign relations power to the National Government").
(113.) E.g., Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247, 255 (2010) ("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."' (quoting E.E.O.C. v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991))).
(114.) Cf. Doe VII v. Exxon Mobil Corp., 654 F.3d 11, 77-78 (D.C. Cir. 2011) (Kavanaugh, J., dissenting in part) (describing recent objections by seven countries to extraterritorial application of a particular federal statute at the behest of private plaintiffs).
(115.) It is telling that when a private plaintiff s suit might raise foreign policy concerns, the Supreme Court has strongly suggested that the courts should look to whatever views about the litigation that the federal executive might be willing to express. See Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004); cf. Republic of Austria v. Altmann, 541 U.S. 677, 701-02 (2004) (describing State Department's filing of "statements of interest"). In a similar vein, the Court has spoken of the need for "judicial caution" when it comes to creating a private right of action under a federal statute--in part because creating such a right of action is tantamount "to permitting] enforcement [by a private plaintiff] without the check imposed by prosecutorial discretion." Sosa, 542 U.S. at 725-27.
(116.) 544 U.S. 349 (2005).
(117.) Pasquantino, 544 U.S. at 362.
(118.) Id. at 369 (citations omitted) (first quoting United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936); then quoting Moore v. Mitchell, 30 F.2d 600, 604 (2d Cir. 1929) (L. Hand, J., concurring); and then quoting Chi. & S. Air Lines v. Waterman S. S. Corp., 333 U.S. 103, 111 (1948)).
(119.) Attorney Gen. of Can. v. R.J. Reynolds Tobacco Holdings, Inc., 268 F.3d 103, 123 (2d Cir. 2001) ("When the United States prosecutes a criminal action, the United States Attorney acts in the interest of the United States....").
(120.) See, e.g., Memorandum from the Att'y General to Heads of Dep't Components and United States Att'ys [hereinafter Communications Memo] (Dec. 19, 2007), http://www.justice .gov/sites/default/files/ag/legacy/2008/04/15/ag-121907.pdf [http://perma.cc/D7LV-JEXH] (setting out Department of Justice-wide policies). It was, in part, contacts between prosecutors and senior executive branch figures that caused many observers to excoriate then-Attorney General Alberto Gonzales, and that led to his forced resignation. Daniel Richman, Political Control of Federal Prosecutions: Looking Back and Looking Forward, 58 Duke L.J. 2087, 2190 & n.21 (2009). Gonzales's successor immediately restored traditional (tight) restrictions on communications between prosecutors and others in the executive branch. See Communications Memo, supra.
(121.) For example, then-Attorney General Mukasey's December 2007 memo explicitly specified that its strict limits on prosecutors' communication with the White House did not apply to national security matters. See Communications Memo, supra note 120, at 2.
(122.) Daniel Klaidman, Kill or Capture: The War on Terror and the Soul of the Obama Presidency 237-63 (2012).
(125.) Pasquantino v. United States, 544 U.S. 349, 369 (2005).
(126.) This conclusion is, again, directly at odds with Extraterritoriality's claim that there is no basis for not transposing due process checks on state law into due process limits on federal law, including federal criminal law applied abroad. See Brilmayer & Norchi, supra note 5, at 1224-39.
(127.) See generally Jack L. Goldsmith, The New Formalism in United States Foreign Relations Law, 70 U. Colo. L. Rev. 1395 (1999).
(128.) See, e.g., Republic of Austria v. Altmann, 541 U.S. 677, 688 (2004) (describing the "comity" basis of Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 134, 136 (1812), as "the source of our foreign sovereign immunity jurisprudence").
(129.) Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 486 (1983) (collecting cases); see also United States v. Noriega, 117 F.3d 1206, 1212 (11th Cir. 1997) ("The Executive Branch has not merely refrained from taking a position on this matter; to the contrary, by pursuing [the defendant's] capture and this prosecution, the Executive Branch has manifested its clear sentiment that [the defendant] should be denied head-of-state immunity.").
(130.) Kiobel v. Royal Dutch Petrol. Co., 133 S. Ct. 1659, 1664, 1668-69 (2013) ("The presumption against extraterritoriality guards against our courts triggering ... serious foreign policy consequences, and instead defers such decisions, quite appropriately, to the political branches.").
(131.) See Oetjen v. Cent. Leather Co., 246 U.S. 297, 303-04 (1918) ("The principle that the conduct of one independent government cannot be successfully questioned in the courts of another ... rests at last upon the highest considerations of international comity....").
(132.) 22 U.S.C. [section] 2370(e)(2) (2012) (cutting back on the act of state doctrine by overruling the specific holding of a then-recent Supreme Court act of state doctrine decision, Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964)); S. Rep. No. 1188, at 24 (1964), reprinted in 1964 U.S.C.C.A.N. 3829, 3852 (describing intent to do so).
(133.) E.g., Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1297-98 (3d Cir. 1979) (citing Timberlane Lumber Co. v. Bank of Am. Nat'l Trust, 549 F.2d 597, 614-15 (9th Cir. 1976)); cf. Hartford Fire Ins. Co. v. California, 509 U.S. 764, 798-99 (1993).
(134.) McCulloch v. Sociedad Nacional de Marineros de Hond., 372 U.S. 10, 21-22 (1963); The Paquete Habana, 175 U.S. 677, 700 (1900); The Nereide, 13 U.S. (9 Cranch) 388 (1815). It bears noting that international law obligations may continue to apply as a matter of international law even after being superseded by U.S. domestic law.
(135.) Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).
(137.) United States v. Noriega, 117 F.3d 1206, 1210-11 (11th Cir. 1997); see also John Lindsay-Poland, Emperors in the Jungle: The Hidden History of the U.S. in Panama 118 (2003).
(138.) See supra text accompanying notes 127-136.
(139.) Lochner v. New York, 198 U.S. 45, 58-65 (1905).
(140.) Id. at 75 (Holmes, J., dissenting); cf. United States v. Angulo-Hernandez, 565 F.3d 2, 20 (1st Cir. 2009) (Torruella, J., concurring in part and dissenting in part) (expressing concern about an extraterritorial federal prosecution because "[t]he United States cannot be the world's policeman," and "[i]f we continue to extend the natural borders of our national jurisdiction, we can expect others to do the same against us").
(141.) Robert H. Jackson, The Struggle for Judicial Supremacy: A Study of Crisis in American Power Politics (1941).
(142.) See supra text accompanying note 71.
(143.) The extraterritorial due process doctrine, exemplified in Davis, requires a "nexus" to the United States. See supra text accompanying notes 45-48.
(144.) E.g., Allstate Ins. Co. v. Hague, 449 U.S. 302, 317-18 (1981) (plurality opinion); see also id. at 331 (Stevens, J., concurring); id. at 337-38 (Powell, J., dissenting).
(145.) E.g., Phillips Petrol. Co. v. Shutts, 472 U.S. 797, 822 (1985) (reversing application of state substantive law because, "[w]hen considering fairness in this context, an important element is the expectation of the parties" and "[t]here is no indication that when the leases ... were executed, the parties had any idea that Kansas law would control"); Allstate, 449 U.S. at 312-13 (noting that due process measures the constitutionality of applying "a State's substantive law").
(146.) As to the term "actual conflict," see infra note 149.
(147.) The background assumption is of course that people generally believe that their conduct is governed, at least, by the law of the place where they act.
(148.) The most pointed kind of actual conflict is one in which the defendant is prosecuted in the United States for actions that were not only lawful where she acted--but that local law required her to take. So far as I know, though, nothing like this has come up in an extraterritorial federal prosecution--though an analogous situation sometimes comes up in civil cases. E.g., Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 209 (1958) (reversing dismissal of civil action for noncompliance with discovery order when complying with order would have required the plaintiff to violate Swiss criminal law).
(149.) In civil cases, a conflict between two bodies of substantive law has long been called an "actual conflict." Because I use a similar concept, to similar effect, with respect to criminal cases, I use that same term: actual conflict. Note that I am not the first person to analyze criminal cases with respect to actual conflicts: Professor Colangelo's important work has been trailblazing. Colangelo, supra note 12, at 1103-1109; Colangelo, supra note 13, at 165-74.
(150.) See supra Section III.A.
(151.) This civil-to-criminal analogy is not perfect. See supra Section I.B. But reasoning from civil cases to criminal ones makes sense in part because, as we saw above, the extraterritorial due process doctrine is itself apparently based on that analogy. See supra Section I.D.
(152.) See Florey, supra note 12, at 1068-82.
(153.) Allstate Ins. Co. v. Stolarz, 613 N.E.2d 936, 937 (N.Y. 1993) ("The first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved."); accord, e.g., Teleglobe USA, Inc. v. BCE Inc. (In re Teleglobe Commc'ns Corp.), 493 F.3d 345, 358 (3d Cir. 2007) ("[T]he practice of the federal system and most states [is to] decide a choice-of-law dispute only when the proffered legal regimes actually conflict on a relevant point."); On Air Entm't Corp. v. Nat'l Indem. Co., 210 F.3d 146, 149 (3d Cir. 2000) ("[B]efore a choice of law question arises, there must actually be a conflict between the potentially applicable bodies of law."); In re Air Crash Disaster Near Chi., 111. on May 25, 1979, 644 F.2d 594, 605 n.2 (7th Cir. 1981) ("All laws must be carefully examined to determine that a conflict actually exists, under any choice-of-law theory, before application of the theory."); Pa. Emp., Benefit Tr. Fund v. Zeneca, Inc., 710 F. Supp. 2d 458, 466 (D. Del. 2010) ("Delaware's choice of law approach entails a two-pronged inquiry. First, it is necessary to compare the laws of the competing jurisdictions to determine whether the laws actually conflict on a relevant point."); Samuel Issacharoff, Settled Expectations in a World of Unsettled Law: Choice of Law After the Class Action Fairness Act, 106 Colum. L. Rev. 1839, 1847 (2006) ("By definition, conflicts jurisprudence emerges only where the substantive law of more than one state is potentially implicated by the events in controversy and ... the underlying substantive laws of the competing states vary in some significant aspect."); see also Hartford Fire Ins. Co. v. California, 509 U.S. 764, 821 (1993) (Scalia, J., dissenting) ("Where applicable foreign and domestic law provide different substantive rules of decision to govern the parties' dispute, a conflict-of-laws analysis is necessary." (emphasis added)).
(154.) E.g., Booking v. Gen. Star Mgmt. Co., 254 F.3d 414, 419-23 (2d Cir. 2001) (determining that there is an "actual conflict," and then proceeding to a choice-of-law analysis); Air Crash Disaster, 644 F.2d at 605-08, 610-33 (same). This selection of substantive law is done based on the controlling choice-of-law rules. See id. at 610-33. These rules may be based on "territorial" considerations, for example, or they may derive from "interest analysis." See, e.g., Lea Brilmayer, Rights, Fairness, and Choice of Law, 98 Yale L.J. 1277, 1277-85 (1989).
(155.) Allstate Ins. Co. v. Hague, 449 U.S. 302, 307-13 (1981) (plurality opinion).
(156.) Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944) ("]W]e ought not to pass on questions of constitutionality ... unless such [questions are] unavoidable."); Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) ("The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.").
(157.) Phillips Petrol. Co. v. Shutts, 472 U.S. 797, 816 (1985).
(158.) Id. at 837-38 (1985) (Stevens, J., concurring). In this context, a "false conflict" is the opposite of an "actual conflict." See id.
(159.) Allstate, 449 U.S. at 305.
(162.) See id. at 305-06.
(163.) See id.
(164.) See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (noting that this requirement applies in "every" case); see also Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd" 527 U.S. 666 (1999); Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972).
(165.) Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 766 (2005); see also Logan v. Zimmerman Brush Co., 455 U.S. 422, 431 (1982); Paul v. Davis, 424 U.S. 693, 709 (1976).
(166.) See sources cited supra note 165.
(167.) See, e.g., Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
(168.) Cf. Michael H. v. Gerald D" 491 U.S. 110, 126 (1989) (plurality opinion) (noting, in the context of a due process claim, that "[i]t is no conceivable denial of constitutional right for a State to decline to declare facts unless some legal consequence hinges upon the requested declaration."); City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) ("If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the [police] departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point." (emphasis omitted)).
(169.) Gibson v. Mississippi, 162 U.S. 565, 590 (1896).
(170.) See Dobbert v. Florida, 432 U.S. 282, 294 (1977); see also Weaver v. Graham, 450 U.S. 24, 29 (1981); Malloy v. South Carolina, 237 U.S. 180, 183-84 (1915).
(171.) See supra Part II, Section III.A.
(172.) See supra Section III.B.1.
(173.) See supra Section III.A.
(174.) See supra Section III.B.1.
(175.) Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999).
(176.) See 212 U.S. 315, 319-21 (1909).
(177.) Nielsen, 212 U.S. at 316.
(178.) Id. at 316-17.
(179.) Id. at 321.
(180.) Id. at 320.
(181.) State v. Holden, 217 A.2d 132, 134 (N.J. 1966).
(182.) For these purposes, imagine that there is an applicable body of U.S. tort and criminal law.
(183.) Compare, e.g., United States v. Vasquez-Velasco, 15 F.3d 833, 840 (9th Cir. 1994) (criminal) with Republic of Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 76 (3d Cir. 1994) (civil).
(184.) Restatement (Third) of the Foreign Relations Law of the United States [section] 403 cmt. f (Am. Law Inst. 1987).
(185.) See, e.g., Vermilya-Brown Co., Inc. v. Connell, 335 U.S. 377, 381 (1948).
(186.) In 1932, the Supreme Court upheld the issuance of a subpoena to compel the return of an American citizen to the United States for testimony in a criminal trial. Blackmer v. United States, 284 U.S. 421 (1932). The subpoena, issued under the Walsh Act, was held not to exceed the reach of federal legislative jurisdiction. In 1964, the Act was amended to allow the issuance of extraterritorial subpoenas to U.S. citizens in civil cases--and since then courts have closely examined whether Walsh Act subpoenas should issue in civil cases on numerous occasions. E.g., Balk v. N.Y. Inst, of Tech., 974 F. Supp. 2d 147, 155 (E.D.N.Y. 2013); SEC v. Sabhlok, No. C 08-4238 CRB (JL), 2009 WL 3561523, at *4-5 (N.D. Cal. Oct. 30, 2009); Estate of Ungar v. Palestinian Auth., 412 F. Supp. 2d 328, 332 (S.D.N.Y. 2006); Klesch & Co. v. Liberty Media Corp., 217 F.R.D. 517, 523 (D. Colo. 2003). But none of these cases have even entertained the possibility that although Walsh Act subpoenas do not exceed legislative jurisdiction in criminal cases, as Blackmer held--such subpoenas might nonetheless exceed legislative jurisdiction in civil cases. Rather, the unyielding assumption is that the reach of criminal and civil legislative jurisdiction are co-terminus. This makes sense, because "in assessing whether an assertion of extraterritorial subpoena power violates the due process clause, the distinction between criminal and civil actions is not constitutionally significant." Rhonda Wasserman, The Subpoena Power: Pennoyer's Last Vestige, 74 Minn. L. Rev. 37, 104 (1989).
(187.) 313 U.S. 69 (1941).
(188.) Skiriotes, 313 U.S. at 73, 77, 79 (first citing Cook v. Tait, 265 U.S. 47 (1924); then citing Old Dominion S.S. Co. v. Gilmore (The Hamilton), 207 U.S. 398 (1907); then citing Del Castillo v. McConnico, 168 U.S. 674 (1898); and then citing United Gas Pub. Serv. Co. v. Texas, 303 U.S. 123 (1938)).
(189.) E.g., Askew v. Am. Waterways Operators, Inc., 411 U.S. 325, 333 (1973); Alaska v. Arctic Maid, 366 U.S. 199, 203 (1961).
(190.) William L. Prosser, Interstate Publication, 51 Mich. L. Rev. 959, 971 (1953).
(191.) Michael H. Gottesman, Draining the Dismal Swamp: The Case for Federal Choice of Law Statutes, 80 Geo. L.J. 1, 11-12 (1991) (describing choice-of-law litigation as "expensive and time-consuming").
(192.) See supra text accompanying notes 154-155.
(193.) See supra text accompanying note 37.
(194.) See, e.g., United States v. Perlaza, 439 F.3d 1149, 1168-69 (9th Cir. 2006).
(195.) United States v. Lanier, 520 U.S. 259, 265-66 (1997).
(196.) 660 F.3d 108 (2d Cir. 2011).
(197.) Al Kassar, 660 F.3d at 115-16. The narco-traffickers identified themselves as members of the FARC, a left-wing Colombian organization. Id. at 115. That organization has been designated as a terror group by the United States. Foreign Terrorist Organizations, U.S. Dep't of State, http://www.state.gov/j/ct/rls/other/des/123085.htm [http://perma.cc/8WCE-TXCV].
(198.) Al Kassar, 606 F.3d at 119; accord United States v. Brehm, 691 F.3d 547, 553-54 (4th Cir. 2012) (following Al Kassar on this point).
(199.) 92 F. Supp. 2d 189 (S.D.N.Y. 2000).
(200.) Bin Laden, 92 F. Supp. 2d at 218-19 (quoting Gov't Memo at 34, United States v. Bin Laden, 92 F. Supp. 2d 189 (S.D.N.Y. 2000) (No. 1:98-CR-01023)); accord United States v. Reumayr, 530 F. Supp. 2d 1210, 1223-24 (D.N.M. 2008) (following Bin Laden on this point).
(201.) City of Chicago v. Morales, 527 U.S. 41, 58 (1999).
(202.) Phillips Petrol. Co. v. Shutts, 472 U.S. 797, 816-17 (1985); Allstate Ins. Co. v. Hague, 449 U.S. 302, 307, 320 (1981) (plurality opinion).
(203.) E.g., Peugh v. United States, 133 S. Ct. 2072, 2085-86 (2013) (discussing ex post facto laws).
(204.) See, e.g., United States v. Baez, 349 F.3d 90, 92-93 (2d Cir. 2003).
(205.) In some cases, something akin to a sentencing conflict might be created (or deepened) by the existence of relatively harsher prison conditions in the United States, or the relatively greater distance between a defendant imprisoned in the United States and her family that will need to visit from abroad. But these sorts of concerns can very much be reflected in the sentence imposed by the Court. See, e.g., United States v. Carty, 264 F.3d 191, 196-97 (2d Cir. 2001) (per curiam) (discussing the conditions of confinement that created a sentencing conflict); United States v. Johnson, 964 F.2d 124 (2d Cir. 1992) (discussing how family ties are a valid reason for downward departures from the sentencing guidelines); cf. United States v. Lipman, 133 F.3d 726 (9th Cir. 1998) (holding that a non-U.S. citizen's sentence can be reduced based on extent of cultural connection to the United States).
(206.) See supra Part II.
(207.) See supra Sections III.A-B.
(208.) Note that there may sometimes be scenarios in which there is no actual conflict and no sentencing conflict--but it nonetheless may make sense to apply the extraterritorial due process doctrine. For example, the outcome of a particular prosecution may turn on an affirmative defense, like intoxication or duress, and these defenses may be different in a material way under the relevant bodies of law. Such scenarios seem quite obscure. They are worth noting, but should not detain us here. In a similar vein, differences between procedural laws--differing lengths of statutes of limitations, for example--do not seem to fall within the domains of due process limits on civil legislative jurisdiction, Sun Oil Co. v. Wortman, 486 U.S. 717, 729-30 (1988), and, accordingly, should not be taken to fall within the analogous domains of due process limits on criminal legislative jurisdiction.
(209.) Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981) (plurality opinion) (legislative jurisdiction).
(210.) 95 U.S. 714 (1878) (judicial jurisdiction).
(211.) Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945) (judicial jurisdiction).
(212.) United States v. Davis, 905 F.2d 245, 247-50 (9th Cir. 1990) (legislative jurisdiction).
(213.) United States v. Yousef, 327 F.3d 56, 85-114 (2d Cir. 2003) (judicial jurisdiction).
(214.) Under the Ker-Frisbie rule, the Supreme Court has rejected the argument that the "power of a court to try a person for crime" is affected by the manner in which the defendant came before the court. Frisbie v. Collins, 342 U.S. 519, 521 (1952). The major cases are the ones referenced in the text: United States v. Alvarez-Machain, 504 U.S. 655 (1992); Frisbie, 342 U.S. 519; and Ker v. Illinois, 119 U.S. 436 (1886).
(215.) See, e.g., J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2790 (2011) (plurality opinion); Phillips Petrol. Co. v. Shutts, 472 U.S. 797, 821 (1985); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 778 (1984); Kulko v. Superior Court, 436 U.S. 84, 98 (1978); Shaffer v. Heitner, 433 U.S. 186, 215 (1977); Hanson v. Denckla, 357 U.S. 235, 254 (1958).
(216.) E.g., Albert Levitt, Jurisdiction over Crimes, 16 J. Am. Inst. Crim. L. & Criminology 316, 321 (1926) ("The principle is absolute in Anglo-American law that the accused must be present in court at the time he is being tried.... Nor does it matter how such control was secured."); accord, e.g., United States v. Burke, 425 F.3d 400, 408 (7th Cir. 2005); United States v. Rendon, 354 F.3d 1320, 1326 (11th Cir. 2003); Stamphill v. Johnston, 136 F.2d 291, 292 (9th Cir. 1943); cf. Fed. R. Crim. P. 43(a) ("[T]he defendant must be present at... every trial stage ....").
(217.) See supra note 214.
(218.) E.g., Alvarez-Machain, 504 U.S. at 687-88 (Stevens, J., dissenting) (suggesting that Ker-Frisbie rule is "deeply disturb[ing]" to "most courts throughout the civilized world").
(219.) See supra text accompanying notes 144--145.
(220.) See supra note 37 .
(221.) 500 F.2d 267, 274 (2d Cir. 1974) (considering whether to decline judicial jurisdiction over the defendant even though he is physically present before the court).
(222.) 472 F.3d 662, 666 (9th Cir. 2006) (same).
(223.) See, e.g., United States v. Mitchell, 957 F.2d 465, 470 (7th Cir. 1992) (questioning Toscanino's "continuing constitutional vitality" given the Supreme Court's post-Toscanino reaffirmation of the Ker-Frisbie doctrine).
(224.) In a forthcoming article, I explain how due process limits on judicial jurisdiction should be understood to function in extraterritorial criminal cases.
(225.) See supra Section III.C.
(226.) See supra Sections III.B.5 and III.C.
(227.) See supra text accompanying notes 41-48.
(228.) Restatement (Third) op the Foreign Relations Law op the United States [section] 475 (Am. Law Inst. 1987) ("A state party to an extradition treaty is obligated to comply with the request of another state party to that treaty to arrest and deliver a person duly shown to be sought by that state....").
(229.) 18 U.S.C. [section] 3181 (2012) (listing current extradition treaties).
(230.) See, e.g., U.S. Dep't of Justice, Review of the Office of International Affairs' Role in the International Extradition of Fugitives 8-10 (2002), https://oig.justice.gov/ reports/OBD/e0208/extradition.pdf [https://perma.cc/P67Y-NK3J] (providing statistics).
(231.) Aside from extradition, there are some other ways that the United States gains custody over foreign defendants. Rendition, for example, is defined as "the forcible movement of an individual from one country to another, without use of a formal legal process, such as an extradition mechanism." Daniel L. Pines, Rendition Operations: Does U.S. Law Impose Any Restrictions?, 42 Loy. U. Chi. L.J. 523, 525 (2011). Renditions get headlines, but this in large part because they are exceptional. E.g., Ernesto Londono, Capture of Bombing Suspect in Libya Represents Rare 'Rendition' by U.S. Military, Wash. Post (Oct. 7, 2013), http://www.washingtonpost.com/world/national- security/libya-condemns-us-raid-and-capture-of-bombingsuspect/2013/10/06/aad8b7ec-2ea6-l le3-8906-3daa2bcdel 10_story.html [http://perma.cc/ 2PW2-QA5K] (describing forcible capture of al Qaeda leader by U.S. military on the streets of Tripoli, and his transfer to the United States). Extraditions, by contrast, are utterly commonplace, the background standard from which rendition departs. See, e.g., Melanie M. Laflin, Kidnapped Terrorists: Bringing International Criminals to Justice Through Irregular Rendition and Other Quasi-Legal Options, 26 J. Legis. 315, 319-20 (2000).
(232.) There is some dispute as to whether dual criminality is a requirement of every U.S. extradition treaty. Compare John G. Kester, Some Myths of United States Extradition Law, 76 Geo. L.J. 1441, 1459 (1988) (describing dual criminality as standard in "nearly every" treaty), with Michael John Garcia & Charles Doyle, Cong. Research Serv., 98-958, Extradition to and from the United States: Overview of the Law and Recent Treaties 10 (2010) (describing dual criminality as feature of "all" treaties).
(233.) Quinn v. Robinson, 783 F.2d 776, 783 (9th Cir. 1986); accord Collins v. Loisel, 259 U.S. 309, 311 (1922) ("[A]n offense is extraditable only if the acts charged are criminal by the laws of both countries."); Extradition Treaty with Great Britain and Northern Ireland, U.S.-U.K., Mar. 31, 2003, S. Treaty Doc. No. 108-23, art. 2(1) ("An offense shall be an extraditable offense if the conduct on which the offense is based is punishable under the laws in both States ....").
(234.) As Professor Richman wisely pointed out to me, a country (say Spain) would be exceedingly unlikely to extradite a defendant to the United States for a crime that, while a violation of Spanish criminal law as a formal matter, had fallen into desuetude in Spain and was no longer being enforced there.
(235.) For the relevant terrorism statutes, see 18 U.S.C. [section][section] 2331-2339D (2012); for the narcotics statutes, see 21 U.S.C. [section][section] 846, 951-971 (2012).
(236.) Antonio Cassese, International Law 153-55 (2d ed. 2005).
(237.) Convention for the Suppression of Unlawful Seizure of Aircraft, Mar. 8, 1973, 860 U.N.T.S. 105.
(238.) Id. at art. 2.
(239.) Int'l Civil Aviation Org., Signatories to Convention for the Suppression of Unlawful Seizure of Aircraft, http://www.icao.int/secretariat/legal/List%20of%20Parties/ Hague_EN.pdf [http://perma.cc/6V7U-4UKQ]. In 1974, the United States discharged its own Hague Convention obligations by passing an antihijacking law. See 49 U.S.C. [section] 46502 (2012).
(240.) Gregory Kau, Flashback to the Federal Analog Act of 1986: Mixing Rules and Standards in the Cauldron, 156 U. Pa. L. Rev. 1077, 1082 (2008) (describing the statute's history).
(241.) E.g., United States v. Manuel, 371 F. Supp. 2d 404, 408-11 (S.D.N.Y. 2005).
(242.) Brief of Former State Department Legal Advisers as Amici Curiae in Support of Respondent, Bond v. United States, 134 S. Ct. 2077 (2014) (No. 12-158), 2013 WL 4518602, at *6-7 (citing, inter alia, 21 U.S.C. [section] 801(7) (2012)).
(243.) John De Pue, Fundamental Principles Governing Extraterritorial Prosecutions, U.S. Atty's Bulletin 9-13 (2007), http://www.justice.gov/sites/default/files/usao/legacy/2007/04/ 20/usab5502.pdf [http://perma.cc/75V3-4QF4] (Department of Justice publication, enumerating more than twenty distinct federal crimes established to implement "international agreements, to which the United States is a party, [that] are designed to thwart acts of terrorism"); see also Auguste v. Ridge, 395 F.3d 123, 128 (3d Cir. 2005) (describing an additional related example); Kadic v. Karad_iae, 70 F.3d 232, 241 (2d Cir. 1995) (same); Michael J. Matheson, The Amendment of the War Crimes Act, 101 Am. J. Int'l L. 48, 52 (2007) (same).
(244.) See supra Parts II, III.
(245.) See supra Part III.
(246.) See supra Part III.
(247.) See supra Part V.
(248.) See supra Sections III.B.5, III.C. Note that the approach I have proposed, in which actual-conflict and no-conflict cases are treated differently for due process purposes, finds echoes in international law, where a sovereign's capacity to legislate extraterritorially depends in part on whether the conduct reached by the extraterritorial legislation was lawful or unlawful where it was undertaken. See Restatement (Third) of the Foreign Relations Law of the United States [section] 403(2)(d), (h) (Am. Law Inst. 1987).
(249.) E.g., #BringBackOurGirls: Addressing the Threat of Boko Haram: Hearing Before the Subcomm. on African Affairs of the S. Comm, on Foreign Relations, 113th Cong. 5--7 (2014) [hereinafter #BringBackOurGirls Hearing] (statement of Hon. Robert P. Jackson, Principal Deputy Assistant Secretary of State for African Affairs).
(250.) Compare 18 U.S.C. [section] 2442 (2012) (extraterritorial U.S. criminal statute proscribing conscripting children for fighting), with Jacob Zenn, Boko Haram: Recruitment, Financing, and Arms Trafficking in the Lake Chad Region, CTC Sentinel (Combating Terrorism Ctr., West Point, N.Y.), Oct. 2014, at 5, 6-8, https://www.ctc.usma.edu/posts/boko-haram-recruitmentfinancing-and-arms- trafficking-in-the-lake-chad-region [https://perma.cc/TL3Y-K6UD] (describing Boko Haram's program of forcibly abducting children for fighting).
(251.) This does not mean that any person in the world can be prosecuted in the United States provided that there is no actual conflict. Regardless of whether due process is satisfied, a federal criminal statute must of course nonetheless be within Congress's Article I reach. See, e.g., United States v. Clark, 435 F.3d 1100, 1109-17 (9th Cir. 2006). There is little doubt that the broad impact of Nigeria's Boko Haram on economic life in all of southern Africa allows Congress to reach the group's leader under Article I. See, e.g., Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 448 (1979) (stating that as compared to the--very broad--scope of the interstate Commerce Clause, "the Founders intended the scope of the foreign commerce power to be the greater"). And it is just as clear that the actions of a Nigerian pickpocket acting in Nigeria cannot even begin to cross the Article I threshold--such that Congress cannot constitutionally proscribe such pickpocketing, even if there is no actual conflict.
(252.) E.g., Boko Haram: The Growing Threat to Schoolgirls, Nigeria, and Beyond: Hearing Before the H. Comm, on Foreign Affairs, 113th Cong. 10, 12 (2014) (prepared statement of Hon. Sarah Sewall, Under Secretary for Civilian Security, Democracy, and Human Rights) ("Boko Haram is a Nigerian-based group that ... has metastasized into a regional threat.").
(253.) E.g., MBringBackOurGirls Hearing, supra note 249 at 6-7.
(254.) Cf. supra text accompanying notes 26-27 (describing U.S. prosecutions of Colombian narcotics traffickers as a strategy for taking pressure off the Colombian state).
(255.) Nongovernmental organizations have described "routine!]" use of torture by Nigerian police. Amnesty Int'l, Torture in 2014 at 18 (2014), http://www.amnestyusa.org/sites/ default/files/act400042014en.pdf [http://perma.ee/P894-BWXT], And the global antitorture treaty, acceded to by the United Kingdom in 1988, prohibits signatories from "extradit[ing] a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture," and indicates that "a consistent pattern of ... violations of human rights" is relevant to that determination. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, Dec. 10, 1984, 1465 U.N.T.S. 85.
(256.) See William J. Stuntz, The Distribution of Fourth Amendment Privacy, 67 Geo. Wash. L. Rev. 1265, 1274-77 (1999).
(257.) E.g., Spencer Ackerman, 41 Men Targeted but 1,147 People Killed: US Drone Strikes-- The Facts on the Ground, The Guardian (Nov. 24, 2014), http://www.theguardian.com/usnews/2014/nov/24/-sp-us-drone- strikes-kill-l147 [http://perma.cc/LA5N-6H5D] (describing information collected from various sources).
(258.) See Mark Mazzetti & Eric Schmitt, Terrorism Case Renews Debate Over Drone Hits, N.Y. Times (Apr. 12, 2015), http://www.nytimes.com/2015/04/13/us/terrorism-case-renewsdebate-over-drone-hits.html?_r=l [http://perma.cc/HZ4A-45CT] (describing Obama Administration debate about whether to kill an al Qaeda figure in a drone strike and the eventual decision to criminally charge him instead).
(259.) President Barack Obama, Remarks at National Defense University (May 23, 2013), https://www.whitehouse.gov/the-press-office/2013/05/23/remarks-president-national-defenseuniversity [https://perma.cc/9NXS-VZGN].
(261.) See United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (describing as "emphatic" the view that the Fifth Amendment does not apply abroad to protect non-U.S. citizens). An emerging literature suggests that due process rights should be understood to check all U.S. action, even when undertaken abroad. J. Andrew Kent, A Textual and Historical Case Against a Global Constitution, 95 Geo. L.J. 463, 464 (2007). But whatever the merits of that view, it has not been embraced by the United States, even during the Obama administration. E.g., Government's Memorandum of Law in Response to Defendant Ahmed Khalfan Ghailani's Motion to Dismiss the Indictment on the Grounds of Outrageous Government Conduct at 39-55, United States v. Ghailani, (LAK) (S.D.N.Y. Apr. 23, 2010) (No. S10 98 Cr. 1023), 2010 WL 3336021. Note that the extraterritorial due process doctrine seems to be based on the common-sense assumption that non-U.S. defendants' due process rights are not potentially violated abroad, where they acted criminally--but rather in the United States, where they are being held for trial and tried.
(262.) U.S. Dep't of State, Afghanistan 2013 Human Rights Report 3-15 (2013), http://www.state.gov/documents/organization/220598.pdf [http://perma.cc/66KC-S24K] (describing severe systemic problems with respect to defendants' trial rights); U.S. Dep't of State, Somalia 2013 Human Rights Report 2-11 (2013), http://www.state.gov/documents/ organization/220370.pdf [http://perma.cc/4XF3-QM3P] (same).
(263.) See generally Maqaleh v. Hagel, 738 F.3d 312, 329 (D.C. Cir. 2013); Kiyemba v. Obama, 555 F.3d 1022, 1026 (D.C. Cir. 2009).
(264.) Kris, supra note 19, at 12-13.
(265.) See generally Neal Kumar Katyal, Deterrence's Difficulty, 95 Mich. L. Rev. 2385, 2392 (1997) (discussing specific and general equilibria in the criminal justice context); Stuntz, supra note 256, at 1274-77 (describing substitution effects in the criminal justice context).
(266.) See President Barack Obama, Address to the Nation on Syria (Sept. 10, 2013), https: //www. whitehouse.gov/the-press-office/2013/09/10/remarks-president-address-nation-syria [https://perma.cc/8DT8-22VN] (stating that, in response to Syrian use of chemical weapons during August of 2013, "it is in the national security interests of the United States to respond ... through a targeted military strike"). See generally Matthew C. Waxman, The Power to Threaten War, 123 Yale L.J. 1626, 1635-36 (2014) (noting that the congressional power to declare war "includes the power to authorize limited uses of force short of full-blown war").
(267.) See President Barack Obama, supra note 266 (stating that on August 21, 2013 "Asad's Government gassed to death over a thousand people, including hundreds of children," describing this as a "crime against humanity," and cataloguing evidence that shows that "the Asad regime was responsible," including evidence of involvement of "senior figures in Asad's military machine").
Michael Farbiarz, Senior Fellow, New York University Law School, Center on Criminal Law and Administration; Senior Fellow, New York University Law School, Center on Law and Security. Immediately prior to coming to NYU Law School, I served as a federal prosecutor for over a decade. My focus was on national security matters, and I served from 2009 to 2014 as the Co-Chief of the Terrorism and International Narcotics Unit for the U.S. Attorney's Office for the Southern District of New York. All views expressed here are my own, and this Article is based only on publicly available information. For helpful comments and conversations, thanks to Rachel Barkow, Adam Cox, Barry Friedman, Ryan Goodman, Jim Jacobs, Andrew Kent, David Leibowitz, Daryl Levinson, Richard Primus, Daphna Renan, Shalev Roisman, Dan Richman, and Matt Waxman. For excellent research assistance, thanks to David Jastrab, Meghna Philip, and Perri Ravon. And for consistently excellent work together, from start to finish, thanks to the editors of the Michigan Law Review.
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|Title Annotation:||III. Fairness it Its Proper Place B. The Constitutional Necessity of a Threshold Conflict through VI. A Reformulated Doctrine and the Wages of the Current Approach, with footnotes, p. 533-557|
|Publication:||Michigan Law Review|
|Date:||Feb 1, 2016|
|Previous Article:||Extraterritorial criminal jurisdiction.|
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