Glaude, 4 MJ 1 (CMA, 1977), the court explained that Congress clearly has the power
to provide for extraterritorial applicability of a federal criminal statute. The
issue is not whether it CAN do so, but whether it HAS done so.
QUESTION:
HOW DO YOU TELL IF
A
FEDERAL
CRIMINAL
STATUTE
APPLIES
ON
AN
EXTRATERRITORIAL BASIS?
ANSWER:
SOMETIMES, THE LANGUAGE OF THE STATUTE WILL SAY WHERE IT APPLIES. IF IT
SAYS IT APPLIES IN "THE SPECIAL MARITIME AND TERRITORIAL JURISDICTION OF
THE UNITED STATES," THEN IT ONLY APPLIES ON AREAS OF EXCLUSIVE OR
CONCURRENT FEDERAL JURISDICTION AN DOES NOT APPLY OVERSEAS. OTHER TIMES,
THE LAW WILL CLEARLY STATE THAT IT APPLIES ON AN EXTRATERRITORIAL BASIS.
SOMETIMES, HOWEVER, THE STATUTE ITSELF IS SILENT.
In U.S. v. Claude, 4 MJ 1 (CMA, 1977), the court explained that the
"application of a penal statute is not automatically limited to crimes committed
within the territorial jurisdiction of the sovereign just because a penal provision
lacks express language that it should be applied extraterritorially." Instead, it
depends on the purpose of the law. In U.S. v. Bowman, 260 US 94, 67 LEd 149, 43
SCt 39 (1977), the Supreme Court explained that it is a question of "statutory
construction: "
"Crimes against private individuals or their property, like assaults,
murder, burglary, larceny, robbery, arson, embezzlement, and frauds of
all kinds which affect the peace and good order of the community, must,
of course, be committed within the territorial jurisdiction of the
government where it may properly exercise it (jurisdiction).
If
punishment of them is to be extended to include those committed outside
of the strict territorial jurisdiction, it is natural for Congress to
say so in the statute...But the same rule of interpretation should not
be applied to criminal statutes which are, as a class, not logically
dependent on their locality for the government's jurisdiction, but are
enacted because of the right of the government to defend itself against
obstruction or fraud, wherever perpetrated, especially if committed by
its own citizens, officers, or agents...to limit their focus to the
strictly territorial jurisdiction would be greatly to curtail the scope
and usefulness of the statute, and leave open a large immunity for
frauds...In such cases, Congress has not thought it necessary to make
specific provisions in the law that the laws shall include the high
seas and foreign countries, but allows it to be inferred from the
nature of the offense."
A good illustration of this principle is U.S. v. Mosley, 14 MJ 852 (ACMR,
1982). There, the court was dealing with 18 USC Section 500, which prohibited the
forgery and counterfeiting of U.S. Postal Service money orders. The statute did
not specifically state whether or not it applied overseas.
The court explained
that it "must examine the thrust of the statute to determine whether the
congressional intent is to protect a governmental rather
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