Extraterritorial Application of American Criminal Law: An Abbreviated Sketch Page: 3 of 6
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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 territorialjurisdiction
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.
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Extraterritorial Application of American Criminal Law: An Abbreviated Sketch, report, August 18, 2006; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc807929/m1/3/: accessed January 21, 2019), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.