Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and the Intersection of National and International Law

摘要

The United States, like many nation-states, presently claims the authority to project its criminal laws beyond its territorial borders. Indeed, the United States now extends aggressively its criminal laws to activity occurring halfway around the globe. Yet this energetic boom of extraterritorial jurisdiction throws into sharp relief a variety of opposing legal interests: most prominently, those of the foreign individuals to whom the United States subjects its laws. Are there constitutional limits on the ability of the United States to project its criminal laws anywhere in the world, and to anyone it likes? If so, what are they, in what constitutional provisions do they reside, and are they enforceable in U.S. courts? And importantly, if such limits exist, do they hamper the ability of the United States effectively to prosecute dangerous criminals for extraterritorial activity? Given the unprecedented scope of jurisdiction that the United States now claims, the current fight against extraterritorial crime envisages novel legal clashes raising precisely these types of questions. And yet despite their centrality to pressing issues of the day, such as the criminal law front to the war on terror, these questions have been left largely untouched by commentators and unresolved by courts.