Extraterritorial Criminal Jurisdiction

Michael Farbiarz*

Over and over again during the past few decades, the federal government has launched ambitious international prosecutions in the service of U.S. national security goals. These extraterritorial prosecutions of terrorists, arms traffickers, and drug lords have forced courts to grapple with a question that has long been latent in the law: What outer boundaries does the Constitution place on criminal jurisdiction? Answering this question, the federal courts have crafted a new due process jurisprudence. This Article argues that this jurisprudence is fundamentally wrong. By implicitly constitutionalizing concerns for international comity, the new due process jurisprudence usurps the popular branches’ traditional foreign relations powers. And in the name of protecting defendants’ presumed interests, the new due process jurisprudence may end up badly undermining them by incentivizing a turn to harsher, alternative national security measures—drone strikes, for example, and military detention in Guantánamo Bay. Moreover, because of certain structural features of the international law enforcement system, U.S. courts have applied the new due process jurisprudence generally—perhaps even exclusively—in precisely that class of cases to which it should not be applied. None of this needs to be. Borrowing from choice-of-law doctrine, I argue that a coherent due process jurisprudence would focus solely on the unfairness, if any, that flows from actual conflicts between federal criminal law and the local criminal law of the place where the defendant acted. A due process jurisprudence reformulated to focus on actual conflicts protects both the liberty of criminal defendants and global public safety.

* Senior Fellow, New York University Law School, Center on Criminal Law and Administration; Senior Fellow, New York University Law School, Center on Law and Security. Immediately prior to coming to NYU Law School, I served as a federal prosecutor for over a decade. My focus was on national security matters, and I served from 2009 to 2014 as the Co-Chief of the Terrorism and International Narcotics Unit for the U.S. Attorney’s Office for the Southern District of New York. All views expressed here are my own, and this Article is based only on publicly available information. For helpful comments and conversations, thanks to Rachel Barkow, Adam Cox, Barry Friedman, Ryan Goodman, Jim Jacobs, Andrew Kent, David Leibowitz, Daryl Levinson, Richard Primus, Daphna Renan, Shalev Roisman, Dan Richman, and Matt Waxman. For excellent research assistance, thanks to David Jastrab, Meghna Philip, and Perri Ravon. And for consistently excellent work together, from start to finish, thanks to the editors of the Michigan Law Review.

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