The Offences Clause, Due Process, and the Extraterritorial Reach of Federal Criminal Law in Narco-Terrorism Prosecutions

Article excerpt

INTRODUCTION........................................................................................................... 1929

I. CONGRESSIONAL POWER UNDER THE OFFENCES CLAUSE.................................... 1933

A. Defining the "Lawof Nations" ................................................................. 1934

B. Congress's Power to Define Offenses. ...................................................... 1936

II. FIFTH AMENDMENT DUE PROCESS AND EXTRATERRITORIAL CRIMINAL JURISDICTION .................................................................................... 1940

A . The Competing Conceptions of Extraterritorial Due Process ................... 1941

B. Courts Should Adopt the Notice Test as the Proper Due Process Standard in Extraterritorial Prosecutions................................................. 1943

III. NARCO-TERRORISM, THE OFFENCES CLAUSE, AND DUE PROCESS....................... 1952

A. Narco-Terrorism and the Offences Clause................................................ 1953

B. Section 96Oa and Fifth Amendment Due Process...................................... 1956

CONCLUSION.............................................................................................................. 1959

INTRODUCTION

November 2002, San Diego: Two Pakistani nationals and one U.S. citizen are charged with dealing 600 kilograms of heroin and five metric tons of hashish in exchange for cash and four anti-aircraft missiles to supply the Taliban and Al-Qaeda.1

November 2002, Houston: Four Colombians are charged with trading $25 million in cash and cocaine in exchange for anti-aircraft missiles, rocket-propelled grenade launchers, 300,000 grenades, 9,000 rifles, and 53 million rounds of ammunition to supply a right-wing revolutionary group in Colombia.2

These examples are not drawn from the television series "24." Instead, these crimes show that the link between narcotics trafficking and terrorism poses a clear threat to the national security of the United States. In the 1980s, with the rise of Colombian drug lord Pablo Escobar, a new name emerged for this phenomenon: narco-terrorism.3 Testifying before the Senate Committee on the Judiciary, Steven W. Casteel, Drug Enforcement Administration Assistant Administrator for Intelligence, defined narcoterrorism as "an organized group that is complicit in the activities of drug trafficking in order to further, or fund, premeditated, politically motivated violence perpetrated against noncombatant targets with the intention to influence (that is, influence a government or group of people)."4

As state-sponsored terrorism declines, terrorist organizations increasingly look to narcotics trafficking as a source of funding.5 This threat is particularly prevalent in Colombia through the operations of the Revolutionary Armed Forces of Colombia (PARC) and in Afghanistan through the operations of the Taliban and Al-Qaeda.6

In response to the growing threat of narco-terrorism, Congress enacted 21 U.S.C. § 96Oa as part of the USA PATRIOT Improvement and Reauthorization Act of 2005.7 In short, § 96Oa criminalizes the use of drug trafficking proceeds to finance a terrorist organization or terrorist activity and does not require any nexus to the United States. More specifically, § 960a(a) proscribes trafficking any controlled or counterfeit substance - as punishable under 21 U.S.C. § 841(a)8 - and prohibits a person from knowingly providing, or attempting or conspiring to provide, "directly or indirectly, anything of pecuniary value to any person or organization that has engaged or engages in terrorist activity ... or terrorism."9 The statute's jurisdiction-al component, § 960a(b), provides jurisdiction over an offense if "after the conduct required for the offense occurs an offender is brought into or found in the United States, even if the conduct required for the offense occurs outside the United States. …