The United States, like many nation-states, presently claims the authority to project its criminal laws beyond its territorial borders. Indeed, the United States now extends aggressively its criminal laws to activity occurring halfway around the globe. Yet this energetic boom of extraterritorial jurisdiction throws into sharp relief a variety of opposing legal interests: most prominently, those of the foreign individuals to whom the United States subjects its laws. Are there constitutional limits on the ability of the United States to project its criminal laws anywhere in the world, and to anyone it likes? If so, what are they, in what constitutional provisions do they reside, and are they enforceable in U.S. courts? And importantly, if such limits exist, do they hamper the ability of the United States effectively to prosecute dangerous criminals for extraterritorial activity? Given the unprecedented scope of jurisdiction that the United States now claims, the current fight against extraterritorial crime envisages novel legal clashes raising precisely these types of questions. And yet despite their centrality to pressing issues of the day, such as the criminal law front to the war on terror, these questions have been left largely untouched by commentators and unresolved by courts.
In response to these questions, this Article sets out to identify and evaluate potential constitutional limits on the ability of the United States to extend extraterritorially its criminal laws, and more particularly, its anti-terrorism laws. I focus on the United States’ anti-terrorism legislation because given recent history and the current political environment, acts of terrorism are both the most palpable crimes to which the United States applies its laws extraterritorially and the crimes over which the United States most aggressively asserts extraterritorial jurisdiction. In fact, it is presently the stated policy of the United States to wage a war against “terrorism” writ large, wherever it occurs around the world. And a powerful tool in this war is the arsenal of far-reaching anti-terrorism laws currently promulgated in the federal code.
The Article engages and weaves together a number of different areas of law: chiefly, constitutional law, criminal law, and international law. Indeed, I conclude ultimately that while the present constitutional landscape prescribes certain structural and due process limits on the United States’ ability to project and apply extraterritorially its anti-terrorism laws, doctrines of international law intersect with the Constitution to avoid these limits, leaving the United States virtually unconstrained to extend the core panoply of its anti-terrorism laws to foreigners abroad. This may seem surprising at first: international law is often thought of as a constraint on state power. Contrary to this assumption, I show that international law actually expands the power of the United States—under the Constitution—in the context of extraterritorial jurisdiction over terrorist acts committed abroad. Specifically, the international legal doctrine of universal jurisdiction interacts with sources of congressional lawmaking authority to overcome any potential constitutional obstacles to the extraterritorial application of U.S. law to the perpetrators of “universal” crimes under international law; crimes that include terrorist acts like the bombing of public places, infrastructure, transportation systems, airports and aircraft, as well as hijacking, hostage taking, and even financing foreign terrorist organizations. However, constitutional limits—most notably those contained in the Fifth Amendment’s Due Process Clause—do restrict the ability of the United States to apply extraterritorially those U.S. code provisions outlawing conduct that is not subject to universal jurisdiction under international law, such as providing material assistance to, or receiving military training from a foreign terrorist organization. My hope in making these arguments is to provide a clearer and more comprehensive picture of this urgent yet under-analyzed legal topic, and to present a compelling claim in favor of an expansive jurisdiction over dangerous extraterritorial crimes like acts of terrorism—but one that both advances and supports the rule of law and individual rights.
Part I of this Article briefly describes the legal concept of jurisdiction and the modern growth of extraterritorial jurisdiction in both national and international law. It explains the different types of jurisdiction at play in combating extraterritorial crime: jurisdiction to prescribe, jurisdiction to adjudicate, and jurisdiction to enforce. And it clarifies that when courts speak of extraterritorial jurisdiction, they are referring principally to jurisdiction to prescribe, or the authority to apply law. I then emphasize the international legal doctrine of universal jurisdiction, which holds that the commission of certain “universal” crimes gives rise to jurisdiction by all states, irrespective of territorial or national links to the accused criminal or the crime itself.
Part II identifies the possible limitations on the extraterritorial application of U.S. prescriptive jurisdiction. These limits are of two main sorts. The first are structural, and go to Congress’s power to legislate in the first instance. The second involve due process considerations imposed by the Fifth Amendment and thus are personal to the accused, shielding the individual against an unconstitutional application of an otherwise lawful enactment.
As to structural limits, I examine the ambit of Congress’s lawmaking authority under the most pertinent enumerated powers for enacting anti-terrorism legislation of extraterritorial application. These powers include the Offences Clause, granting Congress the power “[t]o define and punish . . . Offences against the Law of Nations,” the Foreign Commerce Clause, and the Necessary and Proper Clause license to effectuate the Article II Treaty Power. I argue that while anti-terrorism legislation enacted pursuant to the Foreign Commerce Clause and Congress’s authority to execute the Treaty Power is subject to potential geographical limits, legislation enacted pursuant to the Offences Clause is not, both as a matter of existing Supreme Court jurisprudence and under at least two original interpretations of the Clause. Moreover, I suggest that Congress also likely has the un-enumerated authority to proscribe terrorist acts abroad pursuant to its “inherent” foreign affairs power. I conclude, however, that when applied to individual defendants, exercises of each of these sources of legislative power—whether enumerated or inherent—are nonetheless still subject to the constraints imposed by the Fifth Amendment’s Due Process Clause.
As to Fifth Amendment due process limits, I look to resolve the apparent confusion in the Courts of Appeal, which uniformly have evaluated extensions of U.S. law to foreigners abroad under the Fifth Amendment—and in terrorism cases to boot. Against the conflicting views of commentators—which either look to the domestic context for the appropriate due process framework or resist a due process analysis of federal extraterritoriality largely over concerns that it unduly weakens U.S. sovereignty on the world stage —I propose a due process test that incorporates principles of international law. This test both accurately describes what courts are doing right in practice and successfully balances individual liberty interests against important governmental objectives like combating extraterritorial crime and maximizing U.S. sovereignty. Indeed, my test frees the United States to apply its laws extraterritorially where it otherwise might not be constitutionally capable under some of the tests courts presently purport to employ—namely, tests that borrow from the domestic context and require a nexus to the United States.
Under a test that incorporates international law, where a U.S. law proscribes a “universal” crime, no Fifth Amendment due process claim stands in the way of the application of that law to the individual accused, even where that individual or the conduct in question has no overt nexus to the United States. Because the proscription is not just one of national law, but also of a pre-existing and universally applicable international law, the accused cannot claim to be shielded from the application of a prohibition to which he is already and always subject. And thus according to what this Article presents as the proper due process analysis, the application of that law will not run afoul of the Fifth Amendment: the accused cannot claim lack of notice of the illegality of his conduct, or for that matter, of the substantive law being applied to him. But for this theory to hold, the offense must in fact be universal, and the U.S. law must reflect faithfully the international prohibition—that is, it must embody the substantive definition of the crime as prescribed by international law. Otherwise, the notice criteria compelled by Fifth Amendment due process will not be satisfied. The trick then is to determine which terrorist offenses qualify as universal, and whether Congress has defined them correctly.
Part III presents a framework for evaluating these conditions. In response to the first condition, it argues that through their substantive and jurisdictional provisions, widely ratified international treaties indicate which crimes are universal by manifesting not only widespread condemnation of the crime that is the subject of the treaty, but also by establishing and even mandating extraterritorial and extra-national jurisdiction for all states parties with respect to the prosecution of its perpetrators. To be clear at the outset, I do not argue that the treaty provisions themselves set forth definitively the international law of universal jurisdiction in these respects, but rather that they make up the best evidence of what that law is. And in the context of the international law against specific acts of terrorism, the custom evidenced by these treaties is bolstered by an extensive state practice guided by a sharp sense of opinio juris. Accordingly, and in response to the second condition, these treaties also contain the best record of the international legal definitions of universal terrorist crimes. And since federal legislation implementing U.S. obligations under the treaties tends to track faithfully the treaty definitions of the crimes (and courts consequently use these definitions to prosecute), we can say with some confidence that the U.S. legislation embodies the substantive definition of the crime as prescribed by international law. Hence terrorist crimes that are not universal will not enable the United States to act beyond the constitutional limits mentioned above. But as to the core panoply of terrorist offenses—namely those that are the subjects of widely ratified international treaties evidencing universal jurisdiction—the United States enjoys an unconstrained jurisdiction under both international and national law….
* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.