It does seem that you can be prosecuted for a violation of US law committed in another country–all that you have to do is set foot on U.S. soil. At least, that’s the implication left by the 2002 Dmitry Sklyarov case. Sklyarov was a Russian (not American) citizen arrested in the U.S. for breaking a U.S. law while in Russia. (His actions were legal under Russian law.) There’s the DOJ press release here and the “Free Dimitry” site here.
I don’t think they settled the question of whether it was legal/proper for US authorities to arrest a non-citizen for violation of U.S. laws outside the U.S.; prosecutors dropped charges against Sklyarov in exchange for testimony against his employer. (He, and they, were eventually acquitted).
It was controversial for two big reasons, that was one. The other is the fact that in court the accused is generally permitted to cross-examine witnesses–and in many international cases of this nature–that will not practically be possible. The government will obtain what they believe to be suitable evidence, and that will very likely be the only versions presented in court. Most accused will have no way to compel witnesses to appear in court at all, and will not be able to finance their travel costs anyway.
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I tried to find information on this controversy, but I struck out. Can you point me to some discussions?
I realize that Crawford v. Washington was decided after the statute was passed, but it seems to resolve any issues about confrontation rights. The *Roberts * rule, repudiated by Crawford, equally resolves the issue, but in a less favorable way for the defendant. Both cases seem to support the conclusion that unavailability of witnesses is a problem that applies in many kinds of cases–not just international ones.
I agree that the implication of the statute is that they can be prosecuted. Of course, the same result could occur if they consummated in Wyoming. http://www.law.yale.edu/outside/html/Public_Affairs/455/yls_article.htm (full faith and credit does not require recognition of marriage that would be illegal under local law).
I may misunderstand the discussion, but this section only seems to apply to places outside any nation’s jurisdiction. The OP asked for cases when a crime was committed within a foreign nation’s jurisdiction. Hence this section doesn’t seem to apply.
Furthermore one should take into account the closing words:
These seem to point out that treaty law trumps this statute. Are there no relevant treaties?
You are correct, the statute doesn’t directly apply, but the cases I have cited clearly hold that a citizen my in fact be prosecuted for crimes committed on foreign soil.
And see, Skiriotes v. Florida, 313 U.S. 69, 73 (1941) (the United States is not debarred by any rule of international law from governing the conduct of its own citizens upon the high seas or even in foreign countries when the rights of other nations or their nationals are not infringed).
As** Lathe of Heaven **has pointed out, “application of United States law to United States nationals abroad ordinarily raises considerably less serious questions of international comity than does the application of United States law to foreign nationals abroad.” EEOC v. Arabian American Oil Co., 499 U.S. 244, 274 (1991)
One word is key here:
(Emphasis added.)
Paragraph refers to this paragraph of the statute:
You may be scratching your head and wondering how Congress got the power to do this. There are really two answers:
It probably has the power to regulate interstate or cross-border travel for sex acts under the interestate and foreign commerce clauses. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=227&invol=308 (Congress may not regulate prostitution, but it can regulate interstate travel for immoral purposes).
One could argue that the statute was passed in order to implement several child protective treaties. http://www.state.gov/g/tip/rls/tiprpt/2004/33202.htm (discussing Protect act and various child protective treaties); http://www.unicef.org/crc/crc.htm (Convention on Rights of the Child, which requires states to enact legislation in order to comply with treaty). If that were the case, then *Missouri v. Holland * and its progeny support the proposition that Congress may legislate under a treaty even if it otherwise lacks the power under Article I to legislate on the subject matter.
It should also be noted that certain U.S. employment laws apply to U.S. businesses operating on foreign soil – specifically, laws about sexual harrassment. If a U.S. executive working at the subsidiary in country X of a U.S. business harrasses an employee who is a citizen of X, the company can be sued by the citizen of X under U.S. laws, in U.S. court.
The key difference here, though, is that a Wyoming law is broken. In the colorado-Mexico scenario no local law is broken. This actually goes beyond the OP as you can be prosecuted for commiting no crime in a foreign country.
In my mind the key difference is that Wyoming is doing the prosecuting. A different principle of conflict of laws applies in this case, it’s the opposite of extraterritorialilty. In this case, the usual rules of comity and full faith and credit give way to public policy. The host state is permitted to enforce its own law in its own territory.
This seems like a good option to ask a related question I’ve been wondering about. A person who has committed a crime abroad, illegal both in the US and in that other place, can be arrested and convicted in the US even when that person has already served time for the crime in the other country. How does this work with regard to the double jeopardy clause?
ok i have a question if im a foreing and i comitte a crime in the united states to a foreing do the legal system of us extradite to your country to let they keep going to the investigation or the process you like a us citizen
If you do an act in the US which is a crime under US law, you’ll be tried and punished in the US under US law. It makes no difference whether you, or the victim, are US citizens. If you are a foreign national, they will not extradite you to your own country. However, if you are convicted in the US, when you have served your time you may be deported back to your own country as an undesirable alien.
If, after committing the crime in the US but before being arrested, you return to your own country, the US may seek your extradition. Whether your own country will extradite you depends on the terms of whatever extradition arrangement is in place b between your country and the US. Many countries have a policy of not extraditing their own nationals.
