Under what circumstances can crimes that cross national boundaries\u00a0be prosecuted in federal court? This question is critical given the\u00a0increasing frequency with which criminal conduct crosses borders. This\u00a0Article provides a guide through extant extraterritoriality analysis\u2014warts and all\u2014and then considers what the answer should be.<\/p>\n
First, this Article provides a step-by-step roadmap for those seeking\u00a0to answer the questions of where a crime that spans borders was committed\u00a0and, if it is deemed to have been committed outside the territory of\u00a0the United States, whether the applicable statute and Constitution\u00a0would countenance such a prosecution. This roadmap will reveal the\u00a0myriad uncertainties and questions that confront courts daily. This\u00a0Article resolves two of these doctrinal uncertainties: the continuing\u00a0relevance of the Charming Betsy canon of construction and United\u00a0States v. Bowman. Courts frequently invoke the Charming Betsy canon\u00a0of construction to resolve extraterritoriality questions, but that canon\u00a0is no longer relevant given the Supreme Court\u2019s latest cases. In those\u00a0cases, the Supreme Court has applied a strong presumption against the\u00a0extraterritorial application of federal statutes to conduct occurring outside\u00a0the United States. Federal courts, however, rarely apply this presumption\u00a0in criminal cases, instead regularly relying on a 1922\u00a0Supreme Court case, United States v. Bowman, to hold that federal\u00a0criminal statutes have extraterritorial reach. But Bowman, given\u00a0recent developments and viewed in light of the history of the Court\u2019s\u00a0presumption, is an anachronism.<\/p>\n
Second, this Article rebuts the near universal conclusion, reached\u00a0by both courts and commentators, that extraterritoriality analysis should\u00a0be the same in civil and criminal cases. Fundamental separation of\u00a0powers considerations and criminal law\u2019s foundational legality principle\u00a0require that Congress, not courts, clearly and prospectively specify the\u00a0content of criminal prohibitions. If there is ambiguity regarding whether a statute applies extraterritorially and in what circumstances, the operational\u00a0arms of the legality principle, the rule of lenity, and (perhaps)\u00a0the vagueness doctrine, demand that this ambiguity be resolved\u00a0in favor of the defendant. In short, where a criminal statute is geoambiguous,\u00a0a strong presumption against extraterritoriality ought to apply.\u00a0These same principles do not apply in civil cases, and the rationales for\u00a0the strong modern presumption that federal civil statutes do not apply to\u00a0conduct beyond the boundaries of the United States advanced by the\u00a0Supreme Court and scholars are not convincing.<\/p>\n
The current state of affairs\u2014in which courts apply a strong presumption\u00a0against extraterritoriality in civil cases but decline to do so in\u00a0criminal cases\u2014is, in short, profoundly wrong-headed. Congress ought\u00a0to act promptly to enact a general provision that provides uniform\u00a0 guidance\u00a0on these questions in criminal matters.<\/p>\n