Terrorism and Extraterritorial Jurisdiction in Criminal Cases: Recent Developments in Brief

CRS Report for Congress
Terrorism and Extraterritorial Jurisdiction in
Criminal Cases: Recent Developments in Brief
Charles Doyle
Senior Specialist
American Law Division
Most crime is territorial. It is proscribed, investigated, tried, and punished under
the law of the place where it occurs. As a general rule, no nation’s laws apply within
the territory of another. Yet in a surprising number of instances, federal criminal law
does apply overseas to U.S. citizens and foreign nationals. As long as there is some
nexus to the United States, federal law authorizes prosecution – practical, diplomatic,
and procedural impediments notwithstanding.
In the 107th Congress, the USA PATRIOT Act and the legislation implementing
the international conventions on terrorist bombings and on financing terrorism have
extended the substantive authority for federal prosecution of crimes occurring elsewhere.
This is an abridged version of CRS Report RL31557, Terrorism and Extraterritorial
Jurisdiction in Criminal Cases: Recent Developments, stripped of its footnotes and most
Extraterritorial Jurisdiction: The Constitution provides the power to enact criminal
laws with extraterritorial application. It vests Congress with, among other things, the
power “to regulate commerce with foreign nations . . . to define and punish piracies and
felonies committed on the high seas, and offenses against the law of nations . . .” and
gives Congress legislative jurisdiction over places acquired “for the erection of forts,
magazines, arsenals, dock-years, and other needful buildings.”
The Constitution also limits the manner in which this authority may be exercised.
The due process clause of the Fifth Amendment, for instance, bars the extraterritorial
application of federal criminal laws in the absence of a connection between the crime, the
defendant, and the United States. Prosecution requires personal jurisdiction over the
defendant and subject matter jurisdiction over the crime. Nevertheless, neither due
process nor any other Constitutional limitation have posed any serious obstacle to the
enactment and enforcement of federal law for crimes committed abroad. In fact, the
extraterritorial application of federal law is frequently said to be a matter of intent rather
than power, of statutory construction rather than constitutional limitation.

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When a statute contains a statement of its extraterritorial application, Congress’s
intent is clear. When the statute is silent, the courts begin with a presumption against
extraterritorial application. The nature of the statute, however, may be sufficient to
overcome the presumption, so long as the application beyond the borders of the United
States does not offend the principles of international law. The courts will find no offense
to international law as long as the application features reasonable contacts between the
crime and the nation asserting jurisdiction. That standard is often judged by whether the
case comes within one of five circumstances or “principles” under which international law
recognizes a nation’s prerogative to assert the application of its laws: (1) the objective
territorial principle where external conduct has a substantial effect within the country; (2)
the protective principal where the outside conduct is directed against the country's
national security; (3) the nationality principle where the offender is one on the country's
nationals; (4) the passive personality principle where the victim is one of the country's
nationals; and (5) the universality principle where the conduct, such as piracy, is
universally condemned and may be prosecuted by any country that can capture the
The inventory of federal crimes with extraterritorial application already includes
prohibitions on crimes of violence committed against federal officials and employees, the
theft or destruction of federal property, efforts to smuggle drugs or foreign nationals into
this country, and aircraft hijacking, to name a few. Legislation during the 107th Congress
augments the store with authority to prosecute: (a) crimes committed by or against
Americans on military and diplomatic installations and residences overseas; (b) fraud
involving American credit cards or other “access devices” committed abroad; (c)
laundering the proceeds of various federal crimes in a foreign bank; (d) laundering in this
country of the proceeds of foreign political corruption and of an expanded list of other
foreign crimes; (e) terrorist bombings abroad; and (f) the overseas financing of terrorism.
Common Law Crimes on American Facilities Overseas: Section 804 of the USA
PATRIOT Act addresses a difference of opinion among the lower federal appellate courts
over whether the federal laws that outlaw such crimes as murder, rape, and robbery when
committed within federal enclaves in this country also apply on American governmental
installations abroad. With the enactment of section 804, they do; at least when either the
victim or the offender is a U.S. national. The dispute centers on the construction of 18
U.S.C. 7(3) which defines the special territorial jurisdiction of the United States. The
Fourth and Ninth Circuits contend that the definition in subsection 7(3) includes areas in
other countries over which the host nation has afforded the United States privileges akin
to sovereignty. The Second Circuit argues that the subsection is intended to encompass
only those areas over which Congress may exercise legislative jurisdiction of the kind
ordinarily vested in the Several States.
The Fourth Circuit has held that at least some areas located in other countries might
be considered within the special territorial jurisdiction of the United States as described
in subsection 7(3), United States v. Erdos, 474 F.2d 157 (4th Cir. 1973). Erdos upheld
the conviction of an American diplomat for the crime of manslaughter committed in the
American embassy in Equatorial Guinea. Erdos saw two grounds for territorial
jurisdiction within subsection 7(3): [1] “Any lands reserved or acquired for the use of the
United States, and under the exclusive or concurrent jurisdiction thereof, or” [2] “any
place purchased or otherwise acquired by the United States by consent of the legislature
of the State in which the same shall be, for the erection of a fort, magazine, arsenal,

dockyard, or other needful building.” It concluded that by virtue of “the practical usage
and dominion exercised over the embassy or other federal establishment by the United
States government. . . . 18 U.S.C. 7(3) is a proper grant of special territorial jurisdiction
embracing an embassy in a foreign country acquired for the use of the United States and
under its concurrent jurisdiction,” 474 F.2d at 159-60.
Courts in the Second Circuit read subsection 7(3) differently. United States v. Bin
Laden, 92 F.Supp.2d 189 (S.D.N.Y. 2000) involved the terrorist bombing of American
embassies in Kenya and Tanzania. Unlike Erdos, it held that the American embassies
abroad were not within the special territorial jurisdiction of the United States and that
statutes outlawing murder and maiming within the territorial jurisdiction of the United
States (18 U.S.C. 1111, 114) had no extraterritorial application, 92 F.Supp.2d at 204-16.
The Court of Appeals for the Second Circuit came to much the same conclusion. It
reversed a conviction under 18 U.S.C. 2243 (sexual abuse of a minor within the territorial
jurisdiction of the United States) for a statutory rape which occurred in a housing complex
on a U.S. military base in Germany, United States v. Gatlin, 216 F.3d 207 (2d Cir. 2000).
Gatlin based its conclusion that subsection 7(3) has no extraterritorial application on three
factors. First, a statute is presumed to have no extraterritorial application absent a clear
indication to the contrary. Second, Gatlin read the subsection’s legislative history as an
indication that Congress intended the subsection to apply solely within the United States.
Third, it pointed out that after Reid and Kinsella, Congress, the Executive Branch, and
commentators had all described as beyond federal jurisdiction those crimes committed by
dependents and contractors on overseas military bases – all assuming that subsection 7(3)
had no extraterritorial application, 216 F.3d at 214-22.
The Ninth Circuit could not agree, United States v. Corey, 232 F.3d 1166 (9th 2000).
Corey involved the conviction of a civilian postal employee for sexual abuse committed
in military housing in Japan and in a residence rented by the U.S. embassy in the
Philippines. Corey found the presumption against extraterritoriality unpersuasive and not
particularly relevant. In its mind, jurisdiction was territorial (not extraterritorial) no
matter where the property was located as long as it was acquired for “needful” purposes
and as long as U.S. legislative jurisdiction over the property was exclusive or concurrent,
232 F.3d at 1170-171. It found support in the history of subsection 7(3) which had been
applied over time to territory beyond the confines of any admitted state or beyond the
continental boundaries of the United States, 232 F.3d at 1173-176.
Congress resolved the dispute, or at least greatly mitigated its consequences, when
it enacted section 804 of the USA PATRIOT Act and the Military Extraterritorial
Jurisdiction Act of 2000. The Military Extraterritorial Jurisdiction Act treats felonies,
committed anywhere overseas by members of the armed forces or those accompanying
or employed by them, as if they were committed within the territorial jurisdiction of the
United States, 18 U.S.C. 3261. Section 804 of the USA PATRIOT Act creates a new
territorial subsection in 18 U.S.C.7: the special territorial jurisdiction of the United States
includes the overseas business premises of federal governmental entities and the
residences of the members of their staffs, but only for crimes committed by or against
Americans (other than those who come within the military extension of 18 U.S.C. 3261).
The split in the circuits remains of consequence for crimes committed in federal overseas
facilities by foreign nationals who are not associated with the U.S. armed forces. In the
Fourth and Ninth Circuits, such crimes may come within the territorial jurisdiction of the
United States. In the Second Circuit, they do not.

Credit Card Fraud Overseas (Fraud and Related Activity in Connection with Access
Devices Abroad): Section 1029 of title 18 proscribes counterfeiting or trafficking in
counterfeit or unauthorized “access devices” or attempting or conspiring to do so “if the
offense affects interstate or foreign commerce.” Thus, prior to the addition of subsection
(h), the section would have been thought to have extraterritorial application when the
offense affected the interstate or foreign commerce of the United States. Subsection (h)
might be construed to limit the overseas application of section 1029 to circumstances
involving an American issuer of the depicted “access device” and some contact between
the United States and the material used in the offense or the profits from it. Alternatively,
it might be construed as an explicit confirmation that the section applies under these
circumstances, but without intending to foreclose other circumstances justifying
application abroad.
Money Laundering: The money laundering provisions of 18 U.S.C. 1956 proscribe
money laundering or more exactly, “financial transactions” related in various ways to a
“specified unlawful activity.” It creates six distinct crimes: (1) laundering with intent to
promote an illicit activity; (2) laundering to evade taxes; (3) laundering to conceal or
disguise; (4) smurfing (structuring transactions to avoid reporting requirements); (5)
international laundering; and (6) laundering part of a law enforcement sting.
The extraterritorial aspects of section 1956 come in two forms. First, the statute
prohibits transactions in this country related to certain crimes in other countries. Second,
the section specifically asserts extraterritorial jurisdiction over transactions in other
countries which involve more than $10,000 and either the participation of an American
or conduct occurring within the United States, 18 U.S.C. 1956(f).
Section 318 of the USA PATRIOT Act expressly eliminates any requirement that the
triggering financial transactions occur in an American bank or other American financial
institution by changing the applicable definition of financial institution to include foreign
banks. Whether this is intended as an implicit repeal of the requirements subsection
1956(f) is unclear. The amendment allows for extraterritorial application in instances
where subsection 1956(f) would not. Subsection 1956(f), for example, does not reach
transactions of less than $10,000 or foreign transactions by a foreign national relating to
specified illegal activity committed in the United States. The report of the House
committee in which this proposal originated makes it clear that the provision was crafted
to fill in gaps in existing law. On the other hand, the courts do not favor repeal by
implication, J.E.M. AG Supply, Inc. v. Pioneer Hi-Bred International, Inc., 122 S.Ct. 593,
606 (2001)(“the only permissible justification for a repeal by implication is when the
earlier and later statutes are irreconcilable”). Yet it is possible to read the amendment and
subsection 1956(f) consistently, i.e., each independently describes circumstances under
which extraterritorial jurisdiction may be asserted without reference to the other.
Section 315 of the Act supplements the 18 U.S.C. 1956 definition of “specified
unlawful activity” to include (when the financial transaction occurs at least in part in the
U.S.) a wider range of foreign crimes such as crimes of violence, foreign official
corruption, various smuggling offenses, and crimes for which we have extradition
obligations under a multinational treaty. It also adds sundry smuggling offenses, gun
running, computer fraud and abuse, and felony violations of the Foreign Agents
Registration Act of 1938 to the definition of the specified unlawful activity.

Treaty Implementation: Contemporaneous with Senate approval of the International
Conventions for the Suppression of Terrorist Bombings and of the Financing of
Terrorism, Congress enacted implementing criminal provisions that feature extraterritorial
components. Subsection 2332f(a) bans the use of nuclear materials, chemical weapons,
explosives, or biological weapons against public places or governmental facilities and
utilities or attempting or conspiring to do so. Violations are punishable in the same
manner as violations of 18 U.S.C. 2332a(a)(use of weapons of mass destruction against
federal property or an American abroad), i.e., imprisonment for any term of years or life
and if death results from commission of the offense the offender may also be subject to
the death penalty.
The extraterritorial reach of the new statute runs parallel to several existing statues
which prohibit international terrorism; the unlawful use of chemical or biological
weapons, nuclear materials, explosives, or weapons of mass destruction; or attacks on
aircraft, airports, mass transit, diplomatic officials, or federal employees. It is somewhat
distinctive in that it may be enforced when the offense is committed overseas and
subsequently the offender is found here or has been brought here. No other connection
to the United States is needed. The section does not become effective, however, until the
treaty provisions it implements come into effect for the United States – a limitation
without which any claim to legislative jurisdiction in some instances might be suspect.
Newly enacted section 2339C condemns (1) providing or collecting funds to be used
for terrorist purposes or (2) concealing information concerning funds used to support
terrorism. Subsection 2339C(a), the financing provision which also outlaws attempts and
conspiracies, applies where the funds are to be used in support of the commission of
either an offense covered in any of the various specified anti-terrorism treaties or an act
of terrorism intended to cause death or serious injury. The underlying treaty offenses
include the following federal crimes and their foreign equivalents: 18 U.S.C. 32
(destruction of aircraft or aircraft facilities); 18 U.S.C. 37 (violence at international
airports); 18 U.S.C. 112, 878, 1116, 1117, 1201 (assault, threats, murder, manslaughter,
attempted murder, kidnaping of internationally protected persons); 18 U.S.C. 831 (nuclear
materials offenses); 18 U.S.C. 1203 (hostage taking); 18 U.S.C. 2280 (violence against
maritime navigation); 18 U.S.C. 2281 (violence against fixed maritime platforms); and
49 U.S.C. 46502 (aircraft piracy). Violations are punishable by imprisonment for not
more than 20 years, a fine of not more than $250,000 for individuals or not more than
$500,000 for organizations, and/or a civil penalty of at least $10,000, 18 U.S.C.


The financing subsection applies overseas if the offender is an American, if the target
of the underlying terrorism is the United States government, an American, or an American
entity, or (when the Financing Convention becomes effective for the U.S.) if the offender
is subsequently found in the United States, 18 U.S.C. 2339C(c). The subsection has
several counterparts elsewhere in federal law, most notably 18 U.S.C. 2339B (providing
material support to terrorists organizations), 18 U.S.C. 2339A (providing material support
to terrorists), and 18 U.S.C. 2 (aiding and abetting). The extraterritorial reach of
subsection 2339C(a) when it may be based on the presence of the offender of the United
States is more sweeping than the most expansive of these. Section 2339B proscribes aid
to groups designated foreign terrorist organizations by the Secretary of State as threats to
U.S. national security or the national security of U.S. nationals and has a general
extraterritorial jurisdiction provision, 18 U.S.C. 2339B(d) (“There is extraterritorial

federal jurisdiction over an offense under this section”). Subsection 2339C(a) is limited
neither to designated terrorist organizations nor to terrorism directed against American
national security interests – the subsequent presence of the financier in the U.S. is enough.
Section 2339A prohibits aid to a terrorist in the commission of any of a list
designated for federal predicate offenses. It has no explicit extraterritorial provisions but
almost certainly has extraterritorial application by virtue of the extraterritorial features of
its predicate offenses. Subsection 2339C(a)’s predicate offense list is more extensive than
that of section 2339A and consequently its extraterritorial reach is greater.
Section 2 imposes the same criminal liability upon those who aid and abet the
commission of a crime as those who actually commit it. It carries the extraterritorial
reach of the underlying offenses. Although more extensive than the predicate offense list
of section 2339A, section 2 cannot stand on the full range of foreign law offenses
available to subsection 2339C(a). Moreover, this section requires a completed predicate
federal crime. There is ordinarily no crime to attempt to aid and abet nor to aid and abet
an unsuccessful criminal effort. Subsection 2339C(a) suffers from neither limitation.
Prior to the Convention for the Suppression of the Financing of Terrorism entering
into force for the United States, however, subsection 2339C)(a) will not reach those
overseas acts of financial support for terrorism offenses whose only connection to the
United States is the subsequent presence of the offender in this country.
Concealment: Section 2339C also contains a concealment offense with extraterritorial
application. Subsection 2339C(c)(concealment) only extends to those violations abroad
that are committed by U.S. nationals or American entities. Section 2 appears to offer
broader extraterritorial coverage, since its parallel prohibition on aiding and abetting
violations of subsection 2339C(a)(financing terrorism) and 2339B enjoys the benefit of
their extraterritorial application without any offender citizenship requirement. On the
other hand, where their proscriptions overlap subsection 2339C(c) provides an additional
penalty option since section 2 carries the same criminal penalties as the underlying
offense (i.e., imprisonment for not more than 20 years plus fine) but not a civil penalty.