Extraterritorial Application of American Criminal Law: An Abbreviated Sketch
CRS Report for Congress
Extraterritorial Application of American
Criminal Law: An Abbreviated Sketch
American Law Division
Crime is ordinarily proscribed, tried, and punished according to the laws of the
place where it occurs. American criminal law, however, applies beyond the
geographical confines of the United States under certain limited circumstances. The
federal exceptions to the general rule usually involve crimes aboard a ship or airplane,
crimes condemned by treaty, crimes committed against federal officers or employees
abroad, or crimes planned or initiated overseas with an impact in this country. State
prosecution for overseas misconduct is limited almost exclusively to multi-jurisdictional
crimes, i.e., crimes where some elements of the offense are committed within the state
and others are committed beyond its boundaries.
Although a substantial number of federal criminal statutes have undisputed
extraterritorial application and a great many more have apparent extraterritorial
application, prosecutions are relatively few. In such cases, federal investigators and
prosecutors face legal, practical, and often diplomatic obstacles that can be daunting.
The mutual legal assistance treaties which the United States has with some fifty other
countries reduce or eliminate some of these impediments.
This is an abridged version of a report, which with citations, footnotes, appendices,
and bibliography appears as CRS Report 94-166, Extraterritorial Application of
American Criminal Law, by Charles Doyle.
United States Crimes Abroad
The Constitution does not forbid the enactment of laws that apply outside the United
States. Several passages suggest that the Constitution contemplates the application of
American law beyond the geographical confines of the United States. For instance, it
speaks broadly of “felonies on the high seas,” “offences against the law of nations,”
“commerce with foreign nations,” and of the impact of treaties. Nevertheless, the powers
granted by the Constitution are not without limit. The clauses enumerating Congress’s
powers carry specific or implicit limits which govern the extent to which the power may
be exercised overseas. Other limitations appear elsewhere in the Constitution, most
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notably in the due process clauses. Yet, although American courts that try aliens for
overseas violations of American law must operate within the confines of due process, the
Supreme Court has observed that the Constitution’s due process commands do not protect
aliens who lack any “significant voluntary connection with the United States.” Moreover,
the Court’s more recent decisions often begin with the assumption that the issues of
extraterritorial jurisdiction come without constitutional implications.
Statutory Construction. Thus, the question of the extent to which a particular
statute applies outside the United States has generally been considered a matter of
statutory, rather than constitutional, construction. General rules of statutory construction
have emerged which can explain, if not presage, the result in a given case. The first of
these holds that a statute will be construed to have only territorial application unless there
is a clear indication of some broader intent. A second rule of construction states that the
nature and purpose of a statute may provide an indication of whether Congress intended
a statute to apply beyond the confines of the United States. The third principle
encompasses misconduct overseas which has an impact within the United States. The
final rule declares that unless a contrary intent is clear, Congress is assumed to have acted
so as not to invite action inconsistent with international law.
International law supports rather than dictates decisions in the area of the overseas
application of American law. Neither Congress nor the courts are bound to the dictates
of international law when enacting or interpreting statutes with extraterritorial application.
Yet Congress looks to international law when it evaluates the policy considerations
associated with legislation that may have international consequences. For this reason, the
courts interpret legislation with the presumption that Congress or the state legislature,
unless it indicates otherwise, intends its laws to be applied within the bounds of
international law. To what extent does international law permit a nation to exercise
extraterritorial jurisdiction? The question is essentially one of national interests. What
national interest is served by extraterritorial application and what interests of other nations
suffer by an extraterritorial application? The most common classification of these
interests dates to a 1935 Harvard Law School study which divided them into five
categories involving: (1) the regulation of activities occurring within the territory of a
country; (2) the regulation of the conduct of its nationals; (3) the protection of its
nationals; (4) the regulation of activities outside a country which have an impact within
it; and (5) the regulation of activities which are universally condemned. Legislation may
reflect more than one interest or principle and there is little consensus of the precise
boundaries of the principles. The American Law Institute’s Third Restatement of the
Foreign Relations Law of the United States contains perhaps the most comprehensive,
contemporary statement of international law in the area. It indicates that the latitude
international law affords a country to enact, try and punish violations of its law
extraterritorially is a matter of reasonableness, and its assessment of reasonableness
mirrors a balancing of the interests represented in the principles.
While the Restatement’s views carry considerable weight with both Congress and
the courts, the courts have traditionally ascertained the extent to which international law
would allow extraterritorial application of a particular law by examining American case
law, a source which historically has provided a more permissive view of extraterritorial
jurisdiction than either the Restatement or the Harvard study.
Current American Extraterritorial Criminal Jurisdiction. Congress has
expressly provided for the extraterritorial application of federal criminal law most often
by proscribing conduct that occurs “within the special maritime and territorial jurisdiction
of the United States.” It supplies an explicit basis for the extraterritorial application of
various federal criminal laws relating to: (1) air travel (special aircraft jurisdiction of the
United States); (2) customs matters (customs waters of the U.S.); (3) U.S. spacecraft in
flight; (4) overseas federal facilities and overseas residences of federal employees; (5)
members of U.S. armed forces overseas and those accompanying them; and (6) overseas
human trafficking and sex offenses by federal employees, U.S. military personnel, or
those accompanying them.
The obligations and principles of various international treaties, conventions, or
agreements to which the United States is a party supply a second common ground for
explicit extraterritorial application of federal criminal statutes. Members of the final class
of explicit extraterritorial federal criminal statutes either cryptically declare that their
provisions are to apply overseas or describe a series of jurisdictional circumstances under
which their provisions have extraterritorial application, not infrequently involving the
foreign commerce of the United States in conjunction with other factors.
The federal courts have found extraterritorial application implicit in instances the
purpose for enactment might otherwise be frustrated. Thus they have held that American
extraterritorial criminal jurisdiction includes a wide range of statutes designed to protect
federal officers, employees and property, to prevent smuggling and to deter the
obstruction or corruption of the overseas activities of federal departments and agencies.
A logical extension would be to conclude that statutes enacted to prevent and punish the
theft of federal property apply worldwide. And there seems to be no obvious reason why
statutes protecting the United States from intentional deprivation of its property by
destruction should be treated differently than those where the loss is attributable to theft.
Investigation and Prosecution
Using the terminology of international law in which countries are referred to as
states, the Restatement observes, “It is universally recognized, as a corollary of state
sovereignty, that officials of one state may not exercise their functions in the territory of
another state without the latter’s consent. Thus, while a state may take certain measures
of nonjudicial enforcement against a person in another state, . . . its law enforcement
officers cannot arrest him in another state, and can engage in criminal investigation in that
state only with that state’s consent.” Failure to comply can result in strong diplomatic
protests, liability for reparations, and other remedial repercussions, to say nothing of the
possible criminal prosecution of offending foreign investigators. Consequently,
investigations within another country of extraterritorial federal crimes without the consent
or at least acquiescence of the host country are extremely rare.
Mutual Legal Assistance Treaties and Agreements. Congress has endorsed
diplomatic efforts to increase multinational cooperative law enforcement activities. The
United States has over fifty mutual legal assistance treaties in force. They ordinarily
provide similar clauses, with some variations, for locating and identifying persons and
items; service of process; executing search warrants; taking witness depositions;
persuading foreign nationals to come to the United States voluntarily to present evidence
here, and forfeiture related seizures.
Search and Seizure Abroad. The Fourth Amendment governs the overseas
search and seizure of the person or property of Americans by American law enforcement
officials. The Supreme Court’s Verdugo-Urquidez decision holds that “the Fourth
Amendment [does not] appl[y] to the search and seizure by United States agents of
property that is owned by a nonresident alien and located in a foreign country,” 494 U.S.
at 261. Otherwise, neither the Fourth Amendment nor its exclusionary rule are considered
applicable to overseas searches and seizures conducted by foreign law enforcement
officials, except under two circumstances. The first exception covered foreign conduct
which “shocked the conscience of the court.” The second reached foreign searches or
seizures in which American law enforcement officials were so deeply involved as to
constitute “joint ventures” or some equivalent level of participation.
Self-Incrimination Overseas. Like the Fourth Amendment protection against
unreasonable searches and seizures, the Fifth Amendment self-incrimination clause and
its attendant Miranda warning requirements do not apply to statements made overseas to
foreign officials subject to the same “joint venture” and “shocked conscience” exceptions.
Of course as a general rule to be admissible at trial in this country, any confession must
have been freely made.
Statute of Limitations — 18 U.S.C. 3292 and Related Matters. Federal
capital offenses and certain federal terrorist offenses may be prosecuted at any time. With
some exceptions, prosecution of other federal crimes must begin within five years.
Prosecution of nonviolent federal terrorism offenses must begin within eight years.
Moreover, the statute of limitations is suspended or tolled during any period in which the
accused is a fugitive. Finally, Section 3292 authorizes the federal courts to stay the
running of a statute of limitations in order to await the arrival of evidence requested of a
foreign government. Section 3292 suspensions may run for no more than six months if
the requested foreign assistance is provided before the time the statute of limitations
would otherwise have expired and for no more than three years in other instances. The
suspension period begins with the filing of the request for foreign assistance and ends
with final action by the foreign government upon the request. Because of the built- in
time limits, the government need not show that it acted diligently in its attempts to gather
Extradition. Extradition is perhaps the oldest form of international law
enforcement assistance. It is a creature of treaty by which one country surrenders a
fugitive to another for prosecution or service of sentence. The United States has bilateral
extradition treaties with roughly two-thirds of the nations of the world. Treaties
negotiated before 1960 and still in effect reflect the view then held by the United States
and other common law countries that criminal jurisdiction was territorial and
consequently extradition could not be had for extraterritorial crimes. Subsequently
negotiated agreements either require extradition regardless of where the offense occurs,
permit extradition regardless of where the offense occurs, or require extradition where the
extraterritorial laws of the two nations are compatible. More recent extradition treaties
address other traditional features of our earlier agreements that complicate extradition,
most notable the nationality exception, the political offense exception, and the practice
of limiting extradition to a list of specifically designated offenses.
As an alternative to extradition, particularly if the suspect is not a citizen of the
country of refuge, foreign authorities may be willing to expel or deport him under
circumstances that allow the United States to taken him into custody. In the absence of
a specific treaty provision, the fact that the defendant was abducted overseas and brought
to the United States for trial rather than pursuant to a request under the applicable
extradition treaty does not deprive the federal court of jurisdiction to try him.
Venue. Federal crimes committed within the United States must be tried where they
occur. Venue over extraterritorial crimes is a matter of statute, 18 U.S.C. 3238. Section
3238 permits the trial of extraterritorial crimes either (1) in the district into which the
offender is “first brought” or in which he is arrested for the offense; or (2) prior to that
time, by indictment or information in the district of the offender’s last known residence
and if none is known in the District of Columbia. The phrase “first brought” as used in
Section 3238 means “first brought while in custody.” As the language of the section
suggests, venue for all joint offenders is proper wherever venue for one of their number
Testimony of Overseas Witnesses. Federal courts may subpoena a United
States resident or national found abroad to appear to before it or the grand jury. They
have no authority to subpoena foreign nations located in a foreign country. Mutual legal
assistance treaties and agreements generally contain provisions to facilitate a transfer of
custody for foreign witnesses who are imprisoned overseas and in other instances to elicit
assistance to encourage foreign nationals to come to this country and testify voluntarily.
Unable to secure the presence of overseas witnesses, federal courts may authorize
depositions to be taken abroad, under “exceptional circumstances and in the interests of
justice;” under even more limited circumstances they may admit such depositions into
evidence in a criminal trial.
When a deposition is taken abroad, the courts prefer that the defendant be present,
that his counsel be allowed to cross-examine the witness, that the deposition be taken
under oath, that a verbatim transcript be taken, and that the deposition be captured on
videotape; but they have permitted depositions to be admitted into evidence at a
subsequent criminal trials in this country, notwithstanding the fact that one or more of
these optimal conditions are not present. In the case of some of those nations whose laws
might not otherwise require or even permit depositions under conditions considered
preferable under our law, a treaty provision addresses the issue.
Yet, the question of admissibility of overseas depositions rests ultimately upon
whether the confrontation clause demands can be satisfied. The cases thus far have relied
upon the Supreme Court’s decisions either in Roberts v. Ohio or in Maryland v. Craig.
Faced with the question of whether trial witnesses might testify remotely via a two-way
video conference, Craig held that the confrontation clause’s requirement of physical face-
to-face confrontation between witness and defendant at trial can be excused under limited
circumstances in light of “considerations of public policy and necessities of the case.”
Roberts dealt with the question of whether the admission of hearsay evidence violated the
confrontation clause, and declared that as long as the hearsay evidence came within a
“firmly rooted hearsay exception” its admission into evidence in a criminal trial
constituted no breach of the clause.
More recent decisions might be thought to call into question any continued reliance
on Roberts and Craig. At a minimum, the Supreme Court’s Crawford v. Washington
repudiates the suggestion that Roberts permits anything less than actual confrontation in
the case of “testimonial” hearsay. And at least one appellate panel has concluded that the
prosecution’s need for critical evidence does not alone supply the kind of public policy
considerations necessary to qualify for a Craig exception.
On the other hand, since the pre-Crawford cases required a good faith effort to assure
the defendant’s attendance at overseas depositions, it might be argued that Crawford
requires no adjustment in the area’s jurisprudence. Moreover, the circuit’s Craig analysis
implied that it thought the use of overseas depositions at trial more compatible with the
confrontation clause than the use of video trial testimony.
Admissibility of Foreign Documents. There is a statutory procedure designed
to ease the evidentiary admission of foreign business records in federal courts, 18 U.S.C.
3505. The section covers “foreign record[s] of regularly conducted activity” in virtually
any form, i.e, any “memorandum, report, record, or data compilation, in any form, of
acts, events, conditions, opinions, or diagnoses, maintained in a foreign country,” 18
U.S.C. 3505(c)(1). It exempts qualified business records from the operation of the
hearsay rule in federal criminal proceedings and permits their authentication upon foreign
certification. Finally, it establishes a procedure under which the reliability of the
documents can be challenged in conjunction with other pre-trial motions.
Early appellate decisions upheld Section 3505 in the face of confrontation clause
challenges, as in the case of depositions drawing support from Roberts v. Ohio. Crawford
cast doubt upon the continued vitality of the Roberts rule (hearsay poses no confrontation
problems as long as it falls within a “firmly rooted hearsay exception”) when it held that
only actual confrontation will suffice in the case of “testimonial” hearsay. Although it left
for another day a more complete definition of testimonial hearsay, Crawford did note in
passing that “[m]ost of the hearsay exceptions covered statements that by their nature
were not testimonial — for example business records.” At least one later appellate panel
has rejected a confrontation clause challenge to Section 3505 on the basis of this