The Sometimes "Craven Watchdog": The Disparate Criminal-Civil Application of the Presumption against Extraterritoriality

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ABSTRACT

Increasingly, courts must decide whether U.S. law applies extraterritorially. Courts largely resolve questions of extraterritorial scope using tools of statutory construction. Of these tools, the presumption against extraterritoriality has been ascendant. However, this presumption is subject to two divergent lines of cases: Morrison v. National Australia Bank Ltd. affirmed the strict operation of the presumption in civil cases, but United States v. Bowman continues to govern the presumption's looser role in criminal cases, thereby creating a doctrinal asymmetry. This Note furthers the argument that courts should reconcile Morrison and Bowman, by laying out three arguments for why an expansive Bowman exception is problematic and unsustainable. First, the two lines of cases create unjustified doctrinal incoherencies, given the interrelated contexts in which the presumption is applied and the rationales underlying the presumption. Second, an expansive exception to the presumption in criminal contexts undermines the smart allocation of authority between the branches of government. Finally, an expansive Bowman exception runs counter to the tradition of offering fair notice of criminal law's prohibitions. This Note asserts that these arguments counsel for the abrogation or, at least, substantial narrowing of the Bowman exception, to harmonize it with Morrison's stricter vision of the presumption against extraterritoriality.

INTRODUCTION

Four men sailing to Brazil hatch a plot on the high seas to defraud their employer, (1) An international civil servant solicits a bribe in Afghanistan. (2) A father sexually abuses his daughter while traveling with her in Europe. (3) A Liberian dictator's son tortures Liberian and Sierra Leonean citizens suspected of opposing his father's rule (4) Each of these actions is based on actual events, and each violates U.S. criminal law, although none was perpetrated within the United States' territorial boundaries. Extraterritoriality describes the capacity of U.S. law to apply abroad, and, as the previous examples illustrate, it can have, as a feature of legislation, implications for criminal liability, national sovereignty, and international relations.

Although the extension of national law outside national borders has existed for more than two hundred years, (5) the practice of law is witnessing a resurgent invocation of extraterritorial legislation of both modern and historic vintage. The Alien Tort Statute (ATS), (6) a statute originating in the eighteenth century and assigning federal courts jurisdiction to hear civil suits against aliens for violations of international law (7) has been the subject of argument and reargument at the Supreme Court regarding its application of the ATS to a corporation's alleged support for violence in Africa. (8) Meanwhile, the Foreign Corrupt Practices Act of 1977 (9) (FCPA) languished in obscurity for a quarter-century before reemerging as a premier tool for punishing bribery of foreign officials, (10) ensnaring the likes of Wal-Mart Stores, Avon Products, and Siemens AG. (11) Extraterritorial statutes can fulfill important functions in the nation's legal regime--such as achieving foreign policy goals, or closing off loopholes created by the ease of international travel and commerce--just as they can create risks that individuals and companies will be subject to conflicting legal obligations (12) or that other states will be upset by the perceivable intrusion of U.S. legal norms within their own borders. (13)

Although there is no dispute regarding Congress's constitutional competence to legislate beyond the nation's borders, (14) there are serious consequences to such extraterritorial prescription, prompting judicial inquiry into whether Congress intended a law to have far-reaching geographical scope. Courts look to the language of the statute for manifestations of such intent, (15) Yet, when a court must construe a geoambiguous statute--that is, one lacking a clear indication of geographical scope (16)--it invokes the presumption against extraterritoriality. …