American law enforcement’s reach is global, yet the grasp of its laws is limited, and the tension between these two realities is apparent. How far US law and US law enforcement can go are not identical.
On the one hand, US courts are wary of the extraterritorial application of US law. The Supreme Court wrote in 2016: “in general, United States law governs domestically but does not rule the world.” Said differently, “legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.”
For three decades, however, the US government has asserted that it may seize fugitives on foreign soil without the foreign government’s consent. Reversing policy of the Jimmy Carter administration (1977-81), Bill Barr, as assistant attorney general (and now No 1 at the Department of Justice), told a congressional committee in 1989 that the United States’ “ability to defend” its citizens from terrorists and drug trafficking was paramount.
Less than a year later, the US scooped up Panamanian strongman Manuel Noriega on an existing federal indictment and brought him to trial in the US on drug-trafficking charges. That was not the first time the US had snatched someone on foreign soil.
But the ambit of overseas US law enforcement goes beyond terror, drugs and strongmen. For example, the Foreign Corrupt Practices Act (FCPA) regulates business conduct abroad, and its targets have included non-Americans. Russian and German companies have been brought to heel by the FCPA. In March, Patrick Ho Chi-ping, a former home secretary of Hong Kong, was convicted by an American jury and sentenced to prison for bribing African officials on behalf of a Chinese energy company. Earlier this year, a foreign national was whisked away from the Dominican Republic to New York on charges pending in the US.
Nor have foreign banks been spared. US prosecutors nailed UBS, Switzerland’s largest bank, with a US$780 million fine in connection with tax evasion by American customers. Meanwhile, Deutsche Bank regularly makes the headlines. But banking is a global business. Countervailing arguments can be marshaled to keep the system sound. In the end, the US dollar is king.
Still, foreign governments and corporations share understandable concerns. During the presidency of Barack Obama, the American Bar Association issued a paper titled “FCPA, Due Process, and Jurisdictional Overreach by the DOJ and SEC,” which called out the problem of criminalizing activities committed by foreigners outside of the US. On that note, the Court of Appeals decision in United States vs Hoskins narrowed the applicability of the FCPA where non-resident foreigners were involved to those instances where the government could demonstrate that the individual acted as an agent of a “domestic concern,” or while actually in the US.
At times, the US government can be mindful that it is acting like a Bigfoot when it comes to transnational regulation. Last year, Makan Delrahim, the head of the Justice Department’s antitrust division, issued a call for “Due Process in Global Antitrust Enforcement.” On the other hand, the administration freely uses all legal tools at its disposal, and friend or foe is a secondary concern.
It’s not just China. Canada too has felt the administration’s wrath.
But what’s sauce for the goose can be sauce for the gander. US soil is not immune to foreign efforts to corral dissidents and fugitives. According to The New York Times, Chinese agents have issued warnings within America’s shores to those who are wanted by Beijing. At the same time as the US and China clash over trade, we are witnessing both countries weaponize their legal rubrics, with policies and laws being extended to areas and matters that were likely never intended.