Published online by Cambridge University Press: 27 February 2017
In recent years, the Congress of the United States has enacted a series of laws criminalizing certain activities committed outside the territory of the United States, even by persons who are not nationals of the United States. The international lawyer would doubtless characterize those laws as assertions by the United States of authority to exercise jurisdiction to prescribe laws on the basis of the principle of “passive personality”—to punish actions directed at the state’s nationals—or perhaps as new applications of principles of universal jurisdiction; one might then examine those laws in the light of recent developments in the international law governing state jurisdiction to prescribe.
1 A different constitutional inquiry, not here undertaken, would be whether applying those laws to a foreign national in respect of an act committed outside U.S. territory might involve unreasonable search and seizure in violation of the Fourth Amendment, or might be regarded as depriving the accused of liberty without due process of law in violation of the Fifth Amendment.
2 For a detailed account of the arrest, transport and interrogation of Yunis, see U.S. News & World Rep., Sept. 12, 1988, at 26–34. See also United States v. Yunis, 681 F.Supp. 891; 896; 909 (all D.D.C. 1988), 859 F.2d 953 (D.C. Cir. 1988).
3 In fact, Yunis was convicted of most of the charges against him, and the jurisdictional challenges were, with one exception, rejected. See United States v. Yunis, 681 F.Supp. 896 (D.D.C.), 859 F.2d 953 (D.C. Cir. 1988).
4 See United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).
5 See Restatement (Third) of Foreign Relations Law of the United States §§402, 403 (1987) [hereinafter Restatement (Third)].
6 See, e.g., United States v. Aluminum Co. of America, 148 F.2d 416, 443 (2d Cir. 1945); Romero v. International Terminal Operating Co., 358 U.S. 354, 382 (1959).
7 U.S. Const. Art. Ill, §2, cl. 3.
8 Id. The first part of the quoted clause appears again, only slightly changed, in the Sixth Amendment, which guarantees the accused “the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” There was evidently no occasion to repeat in the Bill of Rights the proviso concerning crimes committed abroad.
9 The opponents of the word thought it would be regarded as arrogant, and perhaps ridiculous, for one nation to define the law applicable to all nations; the proponents, including Madison, prevailed with the argument that the law of nations was too amorphous, and too differently interpreted in different nations, to support conviction of an offense, without the power in Congress to define. See 2 The Records of the Federal Convention of 1787, at 614–15 (M. Farrand ed. 1937).
10 For a brief account of the debate, see C. Warren, The Making of the Constitution 584–86 (1928).
11 18 U.S.C. §2381 (1982), adopted originally as Act of Apr. 30, 1790, ch. IX, 1 Stat. 112.
12 18 U.S.C. §953 (1982) (the Logan Act), adopted originally as Act of Jan. 30, 1799, ch. I, 1 Stat. 613.
13 50 U.S.C. app. §453 (1982).
14 50 U.S.C. app. §§1–39, 41–44 (1982).
15 See United States v. Bowman, 260 U.S. 94 (1922), sustaining an indictment of three U.S. nationals for conspiracy to defraud the United States by acts on the high seas and in Brazil, but expressly reserving the question whether the United States had jurisdiction over a fourth participant in the alleged conspiracy who was a British subject and was not before the court.
16 The frequently cited decision of the U.S. Supreme Court in Blackmer v. United States, 284 U.S. 421 (1932), is not an exception to the statement in the text. Blackmer was wanted as a witness in a U.S. court in a prosecution growing out of the Teapot Dome scandal, i.e., to give evidence on matters he had observed within the United States. After the events on which he was to testify, he left the United States, and a subpoena was served on him in France. He failed to answer the subpoena, and was judged in contempt of the U.S. district court. It was this judgment that was upheld in the Supreme Court.
17 Compare United States v. Ross, 27 F. Cas. 899 (C.C.D.R.I. 1813) (No. 16,196) (Story, J.) (indictment for murder on board a vessel “without the boundaries of low water mark” sustained), with United States v. Hamilton, 26 F. Cas. 93 (C.C.D. Mass. 1816) (No. 15,290) (Story, J.) (indictment for larceny on board American ship while lying in dock at Le Havre dismissed).
18 Act of Mar. 3, 1825, ch. 65, 4 Stat. 115.
19 So far as I have been able to discover, “state” in this context meant both states of the Union and nation-states. The term “special maritime and territorial jurisdiction of the United States” seems to have been employed first in the 1948 revision of the criminal code, Act of June 25, 1948, ch. 645, 62 Stat. 683, 685.
20 United States v. Flores, 289 U.S. 137, 155 (1933).
21 Restatement (Second) of Foreign Relations Law of the United States §30(2) (1965). The Restatement cites as authority for rejection of jurisdiction based on nationality of the victim only the famous Cutting case, in which a Mexican court condemned a U.S. citizen for publishing in the United States an article defaming a Mexican national, and the United States protested to the Mexican Government. For the case, see 1887 Foreign Relations of the United States 751; or 2 J. B. Moore, Digest of International Law 228 (1906); it is conveniently excerpted in W. Bishop, International Law: Cases and Materials 549–51 (3ded. 1971).
A reporters’ note in the Restatement points out that in S.S. Lotus (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10 (Judgment of Sept. 7), one of Turkey’s bases for asserting jurisdiction over the French officers responsible for a collision on the high seas was harm to Turkish nationals, but that the majority of the Court had declined to pass on the contention made on behalf of France that such jurisdiction was contrary to international law. The dissenting judges, including Judge Moore, who had carried on the controversy over the Cutting case for many years on behalf of the Department of State, would have rejected the passive personality principle in the Lotus case.
22 The Restatement (Third) does not repeat this provision of the Restatement (Second), in part for the reasons described below. See Restatement (Third), supra note 5, §402 comment g and Reporters’ Note 3.
23 I have not included here either the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents, Dec. 14, 1973, 28UST 1975, TIAS No. 8532, 1035 UNTS 167;or U.S. legislation directed at crimes against U.S. government officials, 18 U.S.C. §§1114, 1117 (1982).
24 See, for a brief survey, A. Lowenfeld, Aviation Law, ch. VIII, §1 (2d ed. 1981).
25 Pub. L. No. 87-197, 75 Stat. 466 (1961) (49 U.S.C. §1472(i)–(n) (1982)).
26 Federal Aviation Act of 1958, Pub. L. No. 85-726, tit. I, §101(4) and (20), 72 Stat. 731, 737, 738 (49 U.S.C. §1301(4) and (20) as they read at the time; the numbers have changed since then, but the definitions have remained the same). The trial of the newly defined crimes was to be in the district where the offense was committed or where the offender was arrested or first brought or at the offender’s last known residence or in the District of Columbia. Id. §903 (49 U.S.C. app. §1473, as amended by the Aircraft Piracy amendments, note 33 infra).
27 See generally G. Gunther, Cases and Materials on Constitutional Law 112–21, 147–52 (11th ed. 1985).
28 Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, 20 UST 2941, TIAS No. 6768, 704 UNTS 219.
29 Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 UST 1641, TIAS No. 7192.
30 For an account of Black September 1970, when four airliners were almost simultaneously diverted to the Middle East and war almost broke out in Jordan, see, e.g., A. Lowenfeld, note 24 supra, ch. 8, at 8-13–16.
31 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Sept. 23, 1971, 24 UST 564, TIAS No. 7570.
32 Pub. L. No. 91-449, 84 Stat. 921 (1970) (49 U.S.C. §1301(32), as further amended, 49 U.S.C. app. §1301(38) (1982)). For a discussion of the issues leading to this amendment, published before the legislation was adopted, see Mendelsohn, In-Flight Crime: The International and Domestic Picture Under the Tokyo Convention, 53 Val. L. Rev. 509 (1967).
33 Antihijacking Act of 1974, Pub. L. No. 93-366, tit. I, 88 Stat. 409.
34 Id. §101(32)(d)(ii) (49 U.S.C. app. §1301(38)(d)(ii) (1982)).
35 Id. §103(b) (49 U.S.C. app. §1472(n)(1)).
36 In fact, the warrant pursuant to which the FBI officers arrested Yunis did not recite this section of the U.S. Code. But once he was on U.S. soil, the Government relied in part on a similar basis of jurisdiction. See text at note 49 infra.
37 There is a European Convention on the Suppression of Terrorism, adopted by the Council of Europe in 1976 and currently in force among 18 European countries. ETS No. 90, 4 Council of Europe, European Conventions and Agreements, 1975–1982, at 41 (1983). A Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion that Are of International Significance, Feb. 2, 1971, 27 UST 3949, TIAS No. 8413, has been adopted by the United States and six other states in the Western Hemisphere, but the membership is clearly insufficient for it to be regarded as declaratory of international law or as defining a universal crime of terrorism.
38 GA Res. 34/146 (Dec. 17, 1979), reprinted in 18 ILM 1456 (entered into force for the United States Jan. 6, 1985).
39 Id., Art. 5(1). Paragraphs (b) and (c) are paraphrased; paragraph (d) is quoted exactly, but the italics are mine.
40 The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, supra note 23, also contains a passive personality provision (Art. 3(1)(c)), but it is focused on the status of the injured person as agent of the sending state.
41 Pub. L. No. 98-473, ch. 19, §2002(a), 98 Stat. 1976, 2186 (1984).
42 Id. The statute also excludes, in subsection (b)(2), offenses wholly within the United States and committed by U.S. nationals unless the U.S. Government is the target of the hostage taking.
43 Pub. L. No. 98-473, §1210, 98 Stat, at 2164. An earlier addition, a new paragraph (6) concerning space vehicles registered in the United States, had been adopted in 1981.
44 Pub. L. No. 709, ch. 595, 70 Stat. 538, 539 (1956), adopted after the explosion of an airliner near Longmont, Colorado, with the loss of 44 lives, evidently as the result of a time bomb placed in the baggage compartment.
45 Pub. L. No. 98-473, tit. II, §2013(b), 98 Stat, at 2188.
46 The prosecution argued that Yunis’s activity came within §32(a), on the theory that while the aircraft that was destroyed was not engaged in the air commerce of the United States, it was part of the fleet of Royal Jordanian Airlines, and that airline was engaged in the air commerce of the United States because it operated scheduled flights between Jordan and the United States. The district court—I believe properly—rejected this argument. If, as seems improbable, Congress intended the statute to reach as far as the prosecution claimed, such reach would, I believe, be unconstitutional.
47 See note 31 supra.
48 See notes 34 and 35 supra.
49 681 F.Supp. at 905–07.
50 It was he, it will be recalled, who first pulled himself out of a swamp by his own bootstraps.
51 The Hostage Convention, supra note 38, also provides in Article 5(2) for jurisdiction on the basis that the person is “found” in the state exercising jurisdiction to prosecute.
52 See p. 881 supra.
53 681 F.Supp. at 906.
54 Id. at 907.
55 Some readers may by now have been reminded of the Eichmann case, in particular of Eichmann’s kidnapping by Israeli agents from a hideout in Argentina. To discuss that case in detail would involve too broad a digression here. I would observe only that (1) Eichmann did clearly commit universal crimes, while the international community has been ambivalent about so denominating the crimes defined in the Hague, Montreal, and New York Conventions; and (2) Israel does not live under the constraints of the U.S. Constitution or indeed any constitution.
56 Pub. L. No. 99-399, tit. XII, §1202(a), 100 Stat. 853, 896 (1986) (18 U.S.C. §2331) (Supp. V 1987)).
57 H.R. Conf. Rep. No. 783, 99th Cong., 2d Sess. 87 (1986).
58 18 U.S.C. §2331(e).
59 H.R. Conf. Rep. No. 783, note 57 supra, at 87–88.
60 Id. at 88.
61 In United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), which is generally remembered for the expansive interpretation of the President’s power over foreign affairs, the narrow question was the constitutionality of prosecution under a statute that stated the crime as violation of a prohibition upon the sale of arms to the countries engaged in the Chaco war; the prohibition was effective only upon proclamation by the President that it might contribute to the reestablishment of the peace. The Court upheld the “broad discretion vested in the President.” But (1) the discretion was not vested in the Attorney General; and, more important, (2) the determination was about the political situation in South America, not about the motives of the very crime being charged.
62 See generally Reiss, Prosecutorial Intent in Constitutional Criminal Procedure, 135 U. Pa. L. Rev. 1365 (1987).
63 See Article 5(1)(d) of the Hostage Convention, discussed at note 38 supra.
64 132 Cong. Rec. S1383 (daily ed. Feb. 19, 1986).
65 Note 15 supra.