The U.S. is ‘Overcriminalizing’ Foreign Relations: Paper

U.S.-led criminal investigations increasingly extend beyond national borders, creating a crisis of foreign extraterritorial law enforcement that Boston College Law School Prof.  Steven Arrigg Koh terms the “overcriminalization” of foreign relations.

From the U.S. indictment of Venezuelan President Nicolás Maduro for conspiring with Fuerzas Armadas Revolucionarias de Colombia (FARC) to facilitate an international cocaine-trafficking regime, to pursuing a criminal case of fraud against Meng Wanzhou, the CFO of the Chinese telecommunications technology company Huawei, the growing number of U.S.-led foreign affairs prosecutions represents a disturbing trend towards  over-aggressive extraterritorial law enforcement, Koh argues.

Editor’s Note: The Justice Department agreed in September to drop its efforts to extradite Meng Wanzhou from Canada after she admitted to some wrongdoing, but the legal battle with Huawei is continuing. 

Linking extraterritorial law enforcement to domestic criminalization, Koh contextualizes this punishment model as an “alternative model of U.S. global power” that could wind up “supplanting foreign policy.”

“The broad paradigm of extraterritorial policing and regulation in the postwar era constitutes an ‘overlooked’ aspect of American global power,” Koh writes in a paper for the Fordham Law Review. 

 The consequences of foreign relations criminalization are significant: the U.S. spearheading of extraterritorial investigation and prosecution could precipitate retaliatory arrests and extrajudicial killings.

The optics of U.S. involvement also reproduce geopolitical power imbalances, Koh warns.

Koh writes that when one country prosecutes a foreign national, “this represents the critical tension for criminal justice on the global stage: foreign perceptions of a politicized ‘David and Goliath’ case, wherein a lone foreign national is caught in the gears of the omnivorous U.S. criminal justice machine.”

Still, he argues that extraterritorial law enforcement may fulfill specific functions, with the U.S. government most successfully deploying this method when targeting foreign nationals one-at-a-time, when pursuing accountability for past actions, and when the situation involves a protracted criminal legal process.

“When compared to foreign policy, [extraterritorial law enforcement] is more overtly punitive than diplomatic negotiations but less coercive than use of broader military force,” Koh writes.

Considering its part in promoting criminal accountability, extraterritorial law enforcement “may be positive for U.S. foreign relations,” enabling national governments to promote criminal accountability.

For instance, the U.S. and China promoted their mutual interest in combating fentanyl use with the arrest of Liu Yong by Drug Enforcement Agency officials in New Orleans, which in turn led to an international investigation into Liu’s network of manufacturing and shipping fentanyl to American users.

But extraterritorial law enforcement is a sensitive tool — and aggressive prosecution and ever-higher levels of sanctions could push an extraterritorial approach past its positive function, risking the overcriminalization of foreign relations.

Unchecked prosecutorial authority could “lead to the ‘othering’ of foreign defendants” and drive the scope of offenses and their sanctions. Furthermore, the relative “free rein” of the president to drive foreign relations makes extraterritorial law enforcement a potentially dangerous tool.

As such, Koh recommends three reforms to guard against the overcriminalization of foreign relations and fortify extraterritorial law enforcement’s positive functions:

• • • Presidential distancing, or thickening of the layer between the White House and the Department of Justice;
    • Prosecutorial integration, or a thinning out of the layer between the Department of Justice and the U.S. Attorneys’ offices; and
    • Legislative de-escalation, or the ratcheting down of criminal sanctions for certain criminal conduct.

Steven Arrigg Koh

Taken together, these reforms present a path forward for a less punitive approach to U.S. foreign relations.

“U.S. criminal justice today stretches beyond our borders and risks overcriminalizing our foreign relations,” Koh writes.

“Presidential distancing and prosecutorial integration will help the president, DOJ, and individual attorneys uphold these comparative advantages, while a richer normative theory of criminalization may facilitate the necessary legislative de-escalation.”

To read the full Fordham Law Review paper, click here.

Eva Herscowitz is a TCR contributing writer.