In the winter of 1769, the British Parliament responded to unrest in the colonies with a stern rebuke to the inhabitants of Massachusetts Bay: their "daring insults offered to his Majesty's authority" smacked of treason and those thought responsible were to be brought to England for trial.1
When the news reached American shores, the protest was swift. The Virginia House of Burgesses was in session and promptly resolved that "sending . . . Persons, to Places beyond the Sea, to be tried, is highly derogatory of the Rights of British subjects; as thereby the . . . Liberty of summoning and producing Witnesses on such Trial, will be taken away from the Party accused."2 The resolution passed unanimously and was soon adopted in the other colonies.3
The Framers were mindful of this injustice when they drafted the Sixth Amendment. Justice Story reports in his Commentaries on the Constitution that a motivating concern behind the Sixth Amendment was that a "trial in a distant State or territory might subject the party . . . to the inability of procuring the proper witnesses to establish his innocence."4 Though Story quickly assured the reader that "[t]here is little danger, indeed, that Congress would ever exert their power in such an oppressive and unjustifiable a manner,"5 recent developments suggest this confidence was misplaced.
Congress is increasingly criminalizing activities occurring entirely beyond our borders without sufficient attention to the Sixth Amendment promise that "in all criminal prosecutions, the accused shall" have "compulsory process for obtaining witnesses in his favor."6 It is not clear that such laws are constitutional given that the witnesses to the alleged crime are virtually guaranteed to be abroad, beyond the reach of U.S. courts' criminal process.
Without a great deal of analysis, the lower federal courts have generally held that the right to compulsory process extends only so far as the process power of the court and consequently no constitutional violation occurs simply by virtue of the fact that a defense witness is beyond that power.7
But the principal case cited for this proposition considered a very different context: United States v. Greco8 involved a prosecution for trafficking in stolen property. Much of the activity occurred in the United States, but the items were initially stolen in Canada. At trial, the defendant made no request for a particular Canadian witness and raised the issue generally and for the first time only on appeal.9
There is a great difference between a prosecution under a statute generally applied to activity inside the U.S., where one element of the criminal enterprise happens to occur outside the United States, and a prosecution under a criminal statute having the purpose and intent of punishing conduct that occurred wholly beyond our borders. An almost certain consequence of such an extraterritorial criminal statute is that key defense witnesses will lie beyond the reach of American court process. Where this jurisdictional fact is inevitable, rather than incidental, it should not serve to excuse the government's Sixth Amendment obligations.
In an earlier period, the hesitancy of legislatures and courts to exercise extraterritorial personal and subject matter jurisdiction forestalled this problem. Since World War II, that reluctance has eroded particularly with respect to universal jurisdiction for narcotics, terrorism, and human-rights related crimes. Thus far, courts have declared the Fifth Amendment the primary limit on Congress's power in this context.10 However, the malleable standards of due process have not checked the legislature's increasingly aggressive assertions of extraterritorial criminal jurisdiction, usually because the targeted activity is found to have some effect on the U.S. or to be universally condemned.
Part II of this Article examines the early history of the Compulsory Process Clause. …