The Corner

Foreigners Subject to American Law For Actions Overseas

There’s a lot to be said for Jonah’s very practical answer, but the

more legalistic response is that foreigners are answerable to U.S. law

for various crimes committed overseas against what Congress, subject to

the (pretty tiny) limitations of the Constitution, deems are American

interests. The easiest examples are probably terrorist acts which

target American persons or property. Mohammed Daoud al-`Owhali, for

example, bombed the U.S. embassy in Nairobi. He was a Saudi pretending

to be a Yemeni whose crime (and arrest) took place in Kenya, who had

never set foot in the U.S., and whose only connection to the U.S. was to

have attacked that American installation. He was surrendered by Kenya

to the U.S., convicted of various U.S. terrorism crimes, and is serving

a life sentence (having convinced the jury not to impose the death penalty).

Most matters of national security concern, like espionage, are

analogous. They involve U.S. assets — in the case of espionage, not

persons or defense facilities but information that is vital to U.S.

national security. Consequently, it presents no Constitutional problem

for Congress to write laws that reach such conduct committed outside

U.S. territory. Similarly, drug traffickers who participate in

exporting drugs to the U.S. (e.g., Noriega) or laundering drug money (or

other known criminal proceeds) from the U.S. are chargeable under

American law. Foreign companies who trade on our exchanges can be

reached if they commit a fraud overseas that has American consequences.

Usually, the more interesting problem — as Jonah suggests — is

getting your hands on the bad guy. Other countries are not always crazy

about the elastic reach of our laws. So sometimes they will refuse to

extradite. Or they will extradite with conditions (e.g., the European

countries generally won’t turn over even terrorists unless we agree not

to seek the death penalty; the head of the Sicilian Mafia — who was the

lead defendant in the famous Pizza Connection case in the 1980’s —

faced a limit of 30 years in jail because he was captured in Spain,

where the maximum penalty for any drug crime was 30 years, and Spain

would not extradite unless we promised to honor that cap).

The other thing foreign countries will sometimes do to thwart us is

charge under their own laws the defendants we want them to extradite to

the U.S.. At first blush, this sounds like it would be helpful to U.S.

law enforcement, but it is decidedly not. This is because most European

countries (a) have far more lenient penalties than we do and (b) adhere

to the double jeopardy principle of “ne bis in idem” — which

essentially means they will not extradite for any U.S. crime in which

any part of the evidence involves something they’ve already charged

themselves. Thus, for example, a Dutch CEO who commits a securities

violation for which he might be looking at 20 or more years in the U.S.

but only a year or so in the Netherlands benefits greatly from being

charged there. Ditto the Germans who participated in the 9/11 attacks

and whose maximum sentence, under German law, was 15 years even though

their conduct involved 3000 homicides.


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