Extraterritorial Application of American Criminal Law (CRS Report for Congress)
Premium Purchase PDF for $24.95 (77 pages)
add to cart or
subscribe for unlimited access
Pro Premium subscribers have free access to our full library of CRS reports.
Subscribe today, or
request a demo to learn more.
| Release Date |
Revised March 21, 2023 |
| Report Number |
94-166 |
| Authors |
Charles Doyle, Senior Specialist in American Public Law |
| Source Agency |
Congressional Research Service |
| Older Revisions |
-
Premium Revised Oct. 31, 2016 (73 pages, $24.95)
add
-
Premium Revised Feb. 15, 2012 (76 pages, $24.95)
add
-
Premium Revised March 26, 2010 (73 pages, $24.95)
add
-
Premium Revised Sept. 10, 2007 (79 pages, $24.95)
add
-
Premium Aug. 11, 2006 (77 pages, $24.95)
add
|
Summary:
Criminal law is usually territorial. It is a matter of the law of the place where it occurs.
Nevertheless, a number of American criminal laws apply extraterritorially outside of the United
States. Application is generally a question of legislative intent, express or implied. There are two
exceptions. First, the statute must come within Congress’s constitutional authority to enact.
Second, neither the statute nor its application may violate due process or any other constitutional
prohibition.
Claims of implied extraterritoriality must overcome additional obstacles. Federal laws are
presumed to apply only within the United States, unless Congress clearly provides otherwise.
Moreover, the courts will also presume that Congress intends its statutes to be applied in a
manner that does not offend international law.
Historically, in order to overcome these presumptions, the lower federal courts have read certain
vintage Supreme Court cases broadly. The Supreme Court’s recent pronouncements in Morrison
v. National Australia Bank Ltd. and RJR Nabisco v. European Community, however, suggest a far
more restrictive view.
Although the crimes over which the United States has extraterritorial jurisdiction may be many,
so are the obstacles to their enforcement. For both practical and diplomatic reasons, criminal
investigations within another country require the acquiescence, consent, or preferably the
assistance, of the authorities of the host country. The United States has mutual legal assistance
treaties with several countries designed to formalize such cooperative law enforcement assistance.
It has agreements for the same purpose in many other instances. Cooperation, however, may
introduce new obstacles. Searches and interrogations carried out jointly with foreign officials,
certainly if they involve Americans, must be conducted within the confines of the Fourth and
Fifth Amendments. And the Sixth Amendment imposes limits upon the use in American criminal
trials of depositions taken abroad.
The nation’s recently negotiated extradition treaties address some of the features of earlier
agreements which complicate extradition for extraterritorial offenses, that is, dual criminality
requirements; reluctance to recognize extraterritorial jurisdiction; and exemptions on the basis of
nationality or political offenses. To further facilitate the prosecution of federal crimes with
extraterritorial application Congress has enacted special venue, statute of limitations, and
evidentiary statutes. To further cooperative efforts, it enacted the Foreign Evidence Request
Efficiency Act, P.L. 111-79, which authorizes federal courts to issue search warrants, subpoenas,
and other orders to facilitate criminal investigations in this country on behalf of foreign law
enforcement officials.
This report is available in an abridged version, stripped of its attachments, bibliography,
footnotes, and most of its citations to authority, as CRS Report RS22497, Extraterritorial
Application of American Criminal Law: An Abbreviated Sketch, by Charles Doyle.
