Jan 02, 2013 Fourth Circuit affirms conviction of foreign national for overseas theft
How do United States courts get extraterritorial jurisdiction over criminal prosecutions for crimes allegedly committed outside the United States? How did a United States federal trial court get jurisdiction over the prosecution of Manuel Noriega (I was not yet a criminal defense lawyer when the U.S. invaded Panama to seize Noriega, and have not yet looked up any challenge Noriega made to such extraterritorial jurisdiction)? For prosecutions for people supporting, overseas, listed terrorist organizations, the U.S. federal courts are very ready to give jurisdiction to prosecute them in the United States.
What about getting U.S. federal court extraterritorial jurisdiction over a non-United States citizen/Jordanian resident working for the United States embassy in Iraq who steals U.S. government funds in Iraq? In affirming jurisdiction for the U.S. prosecution of Osama Ayesh — U.S. v. Ayesh, ___ F.3d ___ (4th Cir., Dec. 18, 2012) — the Fourth Circuit turned to the 1922 Supreme Court decision in United States v. Bowman, 260 U.S. 94 (1922):
The Supreme Court in Bowman held that if Congress intends for overseas crimes "against private individuals or their property . . . which affect the peace and good order of the community," to be punished in this country, "it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard." Bowman, 260 U.S. at 98. But that is not the end of the analysis. The Court went on to say that "the same rule of interpretation" should not be applied to criminal statutes that are "not logically dependent on their locality for the government’s jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers, or agents." Id. (emphasis added). In such cases, congressional intent may be "inferred from the nature of the offense." Id. The Court added that to apply such a statute only territorially would "[g]reatly . . . curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home." Id.
How, then, will the United States government respond when United States citizens are prosecuted overseas solely for activities committed inside the United States, and where the overseas court system does not even provide the barest of due process nor other basic protections to criminal defendants? Beware of the approach of what’s good for the goose is good for the gander.