Extraterritorial criminal jurisdiction

Abstract

INTRODUCTIONAmerican lawyers know all about the limits the Constitution places on jurisdiction in civil cases, like Pennoyer v. Neff1 or International Shoe.2 But constitutional limits on criminal jurisdiction have been much more obscure. This is because, for most of the nation's history, criminal prosecutions have been purely local affairs. When New York prosecutes a New York resident for a crime she committed in New York, questions of jurisdiction can be taken for granted; they do not warrant attention. But no longer. Over and over during the past few decades, the federal government has launched ambitious international prosecutions in the service of U.S. national security goals- prosecutions of terror leaders operating in Pakistan or Libya, of notorious global arms dealers working in Russia or Spain, and of violent drug lords based in Afghanistan or Colombia. These extraterritorial prosecutions seek to hold defendants accountable for their actions abroad, wholly outside the sovereign territory of the United States. And they force us to ask and answer a fundamental question that has long been latent in the law: Namely, what are the outer boundaries that the Constitution places on criminal jurisdiction?To answer this question, the lower federal courts have spent decades crafting a sprawling new due process jurisprudence, which allows a federal criminal law to reach extraterritorial conduct only if that conduct has a connection or to the United States. And at first glance, this new jurisprudence seems sensible. In an analogous context, the Supreme Court has long required what amounts to a nexus.3 In particular, before state civil law is permitted to reach extraterritorial conduct-before, say, the tort law of Minnesota is allowed to reach a car accident in Wisconsin-due process requires a connection between the source of the law (Minnesota) and the event in question (the accident).4 And leading scholars have argued that there is no reason not to subject federal criminal law to these same due process limits.5I argue, however, that the new due process jurisprudence that has been developed in the criminal context is fundamentally wrong. It is only in extremely rare cases that due process, properly understood, requires a nexus to the United States as a predicate to the exercise of criminal jurisdiction. As things stand, though, due process is generally-if not exclusively-being brought to bear in precisely that class of cases to which it should not be applied. The real world costs of this are severe. Forcing the United States to forego major extraterritorial prosecutions harms global public safety. And in the name of protecting defendants' presumed interests, the new due process jurisprudence may end up badly undermining them, by incentivizing a turn to harsher, alternative national security measures-drone strikes, for example, and military detention in Guantanamo Bay. This Article argues that none of this is necessary. A coherent due process jurisprudence protects both the liberty of criminal defendants and U.S. national security.Due process generally limits the law's extraterritorial reach for two reasons. The first is a concern for intergovernmental structure, for keeping sovereigns from interfering with each other. The second is a concern for protecting individual defendants from unfairness.As I argue, the first concern, for intergovernmental relations, cannot be used to justify due process limits on the extraterritorial application of federal criminal law. Structural concerns about what will or will not lead to a rupture between national governments have long been understood as ultimately the province of the popular branches, not the courts. These structural concerns should not be implicitly constitutionalized-by transposing them into a due process jurisprudence whose purpose is to limit the popular branches and, if necessary, to override their decisions. Moreover, the Constitution already fixes the boundaries of federal law's reach-in Article I. …