Enforcing U.S. laws abroad

Fabio Ochoa, A founder of Colombia’s former Medellin drug cartel was convicted Wednesday of charges he rejoined a smuggling network after he was released from prison and given amnesty.

By what legal authority are people guilty of violating U.S. law if they have engaged in actions from beyond our borders? Apart from having big guns and saying, “Because we say so,” How is it that Manuel Noriega and others violated U.S. law if they never stepped on our soil to begin with?

By the simple method of enacting a law to say that it applies that way.

No Shiiite Sherlocke. Let me rephrase then. “Under what jurisdiction and legal authority are these laws enforced?”

It is simple:

The USA has the right to do this because…

Belgium does not have the right to indict Tommy Franks because…

Does that make it clear?

Let me take a stab at this, I think I know the answer. It’s because might makes right.

I believe the rationale is that what the bad guy was doing abroad has an effect in the USA. He is exporting shit to the USA. I beleive pretty much all governments recognise the right to enact laws against activities which may take place abroad but have effect in their jurisdiction or on their nationals. Pretty much any country will prosecute you for killing one of their nationals abroad if no one else will prosecute you. They just have to get their hands on you.

Apparently you have a writing problem in addition to a reading comprehension problem. I answered the actual question you asked. You then responded with a stupid post. Surprisingly, the answer to your rephrased question is the same.

Monty, if I may, I believe that the OP was asking how the authority to enact laws affecting people in other countries is assumed. You think you answered the question, but you basically only said “because”.

To try to answer th OP, I would venture that there are agreements in place with the other countries (you give us the smugglers, we’ll continue to send you billions of dollars in aid).
Ugly, but effective.

My apologies Monty. I wasn’t looking for thread degradation into who made the stupidist post. I was seeking clarification to determine if maybe Monroe doctrine or perhaps NAFTA or some such specifically gave us a legal authority to do this, or if we just do it because we feel like it.

I think I’m right in saying that sex offenders (specifically aimed at paedophiles) who commit crimes abroad are liable for prosecution in the UK. I can’t say for sure if this became law, but as it was at least considered, I assume there’s some legal basis for its application.

I don’t really see the problem of the OP. AFAIK most states have as a basis the territorial jurisdiction: crimes committed on the state’s territory can be prosecuted. Routinely this is extended also to crimes committed by the state’s citizens, wherever they were committed. Then there are several extensions other extensions with more or less popularity:

  • principle of protection: certain crimes aimed at specific economic or national interests can be prosecuted,
  • principle of passive nationality: crimes committed against the state’s citizend may be prosecuted (this is not really common), and
  • universality principle. For really heinous crimes (i.e. crimes against humanity) anyone can be prosecuted.

The only limits to extension of jurisdiction are

  • practical: you wouldn’t want to have to bother about every crime committed everywhere. Sensible states would only bother if they are in some way influenced by the crime.
  • limitations of international law. There may be treaties extending or limiting what can be prosecuted. Further there is a practical point here as well. Other states may get irritated if your state routinely is prosecuting citizens of other states for what are perceived to be trivialities or nonsense. International law, at least in this respect, is not as rigid and clear as normal national law; it is heavily influenced by practical interests and politics.

The above is mostly textbook.

For the case of the OP: I wager that the person was committing the crime of smuggling drugs into the U.S. I assume that there is a law that says that that is a crime.

  1. The U.S. can prosecute that person legally, since there is a law that says they can. The legal authority to do so derives from that law, which in its turn derives its authority from being enacted properly according to U.S. administrative law. Just like Monty said, I cannot make it any better.
  2. If you want to ask whether that law itself is legal, we are getting into a circular argument. Do you mean the law would be ‘unconstitutional’? What constitutional right (of a non-citizen) would be violated in this case? I do not see what else there is wrong with such a prosecution.

So I have to agree that the OP is not very clear as to its point.

It looks as if you only are expressing surprise about the extension of territorial jurisdiction. As I hoped to explain above, such an extension is by no means exceptional.

In particular the fact that the act itself allegedly took place in another country would not be sufficient to leave it outside the U.S. sphere of jurisdiction. If someone masterminded a crime that is intended to have its primary effect in the U.S., wouldn’t it be natural to have the person prosecuted by the U.S. instead of by the country he just happened to be in at the time?

Furthermore one could say that this particular act does in fact take place on U.S. soil, since the drug trafficking by its very definition has to end up in the U.S. I hope you are not one to say that only the person who physically acts should be prosecuted; luckily we have long since learned that the criminal mastermind can be liable as well.

Maybe you are afraid of repercussions (prosecution of U.S. citizens by other countries) and abuses. But that is an entirely different question/debate.

Note: I am not commenting on the means used to bring specific persons to justice.

Phrased like this, you seem to hold the mistaken belief that every law has to have a specific basis. You seem to confuse the legal standing of state officials with that of the state itself.

It is true that state officials in modern democratic states under rule of law must have a legal basis for their own authority to act. However, when the state acts by making specific laws, it doesn’t have to have any such basis, except the proper procedural course for accepting the law. Hence the answer is: it is a law because the legal authorities wanted to make it a law, and they followed the proper procedures to actually make it a law.

Of course, in fact, there must be a justification that the politicians gave for wanting that specific law. But that justification itself does not need a legal basis.

The above of course could lend itself to abuse. That’s why modern democratic, operating under rule of law, have constitutional rights that limit the extent to which specific laws can be enacted. But a limit on the powers of the state doesn’t mean that every use of that power must have a prior legal basis.

What I find somewhat disturbing is not that the government in some cases enforces its laws abroad. This can be justified as some posters have above. But at the same time the government insists that the constitutional limitations on its actions do not apply if either the location is not US territory and the target not a US citizen

MMI: I agree with your concern, but as I said, that is a debate on the manner in which this enforcement takes place. The OP expressed surprise that the person concerned could be prosecuted at all, and did not voice any concern about the way the conviction came to pass.

I guess this shows an important difference between respecting constitutional rights versus respecting human rights. European countries who have signed the Rome treaty on human rights have to respect these rights for everyone, not only citizens (though there are certain limitations). (This is not meant as a U.S. vs Europe debate, just an observation on a point of law).

Maybe I’m appaled by the truth and it just isn’t the answer I wanted to hear. It still leaves me a bit cloudy with regard to jurisdiction. Did Jon Johansen violate the U.S. DMCA by writing DeCSS in Norway? Or Dmitry Sklyarov, violate it for writing PDF decrypt software in Russia? Or, closer to home for you, If Ashcroft were to outlaw rockwool, saying its primary purpose was marijuana horticulture, (not too far fetched) would the US then have the right to come into your country and bust Grodan claiming they are kingpins profitting off of drug production regardless of the laws of your country? Yes, it would suprise me to learn that these “Criminal Masterminds” were liable for activities they engaged in outside of our borders.

PDF should have been ebook


Well, there’s only one candidate for such a post in this thread. But anyway, as someone mentioned above, “because” is really the answer as to how countries decide to extend the rule of their law beyond their borders. It’s actually “because we decided to do that.”

Monroe Doctrine and NAFTA don’t have to do with our government extending the rule of law to our citizens while they’re out of the country. The laws passed with such language within them do.

That’s pretty much it.

b[frithrah**, I was thinking about those exact same examples, when I mentioned the possibility of abuse. But since your OP only mentioned a clear-cut case of a reprehensible crime, I didn’t think it was proper to talk about those cases. Furthermore, I’m not sufficiently informed on the exact details of the case to discuss them very well. But if you want some provisional opinions (subject to possible revisions)…

I believe that at least one of these cases was in fact dismissed because the judge found that the act was not a crime under the act that the prosecutor invoked (DMCA or another?). This point to the problem: in each case you need to find the limits on what does and what does not constitute a criminal act. That is a difficult question and it may lend itself to abuse. But you cannot get around to that. Is the rental agency that rents a car to a bank robber an accomplice? Normally not, but if he knows about the intended purpose, and is involved in other ways as well, it might become different.

The examples cited are also examples where there is considerable debate whether the act itself should be criminalized. The issue hence is not so much if only foreigners should be prosecuted, but whether anyone should be prosecuted at all.

Another thing is: in your hypothetical example you state that the U.S. would arrest the person himself on foreign territory. I specifically did not debate that point: I refered to that when I talked about the means used to bring specific persons to justice. Arresting persons on foreign territory without the consent of the state involved is generally seen as a flagrant violation of international law. AFAIK most states, including the U.S., go through the proper extradition procedures. These procedures have checks, so not every request is automatically granted (I think it has to do with the seriousness of the crime).

The fact that I might not find it proper to make certain acts criminal or to kidnap alleged criminals does not detract from the fact that a state can perfectly well make criminal acts that are committed abroad. In practice that means that the state has to wait until the person is extradited or comes to the U.S. voluntarily. I’ve heard there are people who are afraid to go to the U.S. for that very reason.

I’m certainly not going to defend the exact actions of the Bush administration. I just wanted to point out (because you repeatedly and specifically asked so) that from a legal point of view (which the OP inquired about) there is nothing wrong here. We are now discussing application and possible abuse of in itself desirable kinds of law. In other words, you are changing the debate as we go along, and seem to think I’m defending standpoints that I definitely do not hold. This other debate would be interesting, but I fear I would be out of my depth there, since it is very much entangled with questions of U.S. constitutional law, criminal law, and politics.