	Introduction

Subject matter jurisdiction over a criminal offense is usually a matter of the law of the place where the offense occurs. A number of federal criminal statutes, however, enjoy extraterritorial application. The trend continued in the 109 th Congress. And yet others would have expand existing statements of extraterritorial jurisdiction for existing crimes to enlarge the circumstances under which they apply. Several proposals in the 109 th Congress followed this model. The bills in question were:
- Comprehensive Immigration Reform Act ( S. 2611 as agreed to by the Senate);
- Border Protection, Antiterrorism, and Illegal Immigration Control Act ( H.R. Even in the absence of a statement of extraterritorial jurisdiction, the courts seem likely to conclude that the statute was intended to have extraterritorial application and that such application constitutes no affront to the principles of international law. A general statement of extraterritorial jurisdiction also appears in the Telephone Records and Privacy Protection Act, P.L. 109-476 ( H.R. A general statement proposal appeared as well in two bills that would have condemned certain forms of fraud by government contractors, the War Profiteering Prevention Act ( S. 2356 ), proposed 18 U.S.C. The Comprehensive Immigration Reform Act ( S. 2611 as agreed to by the Senate), the Comprehensive Immigration Reform Act ( S. 2612 ), and the Securing America's Borders Act ( S. 2454 ) would have rewritten 18 U.S.C. It provides for extraterritorial jurisdiction if:
(1) the prohibited drug activity or the terrorist offense is in violation of the criminal laws of the United States;
(2) the offense, the prohibited drug activity, or the terrorist offense occurs in or affects interstate or foreign commerce;
(3) an offender provides anything of pecuniary value for a terrorist offense that causes or is designed to cause death or serious bodily injury to a national of the United States while that national is outside the United States, or substantial damage to the property of a legal entity organized under the laws of the United States (including any of its States, districts, commonwealths, territories, or possessions) while that property is outside of the United States;
(4) the offense or the prohibited drug activity occurs in whole or in part outside of the United States (including on the high seas), and a perpetrator of the offense or the prohibited drug activity is a national of the United States or a legal entity organized under the laws of the United States (including any of its States, districts, commonwealths, territories, or possessions); or
(5) after the conduct required for the offense occurs an offender is brought into or found in the United States, even if the conduct required for the offense occurs outside the United States. The Trafficking Victims Protection Reauthorization Act, P.L. ch. 77 (relating to peonage) or 18 U.S.C. ( H.R. Rather than create a new crime but to much the same effect, the Federal Contractor Extraterritorial Jurisdiction for Human Trafficking Offenses Act ( S. 1226 ) would have added a jurisdictional statement to end of chapter 77 that would have prohibited government contractors from engaging in conduct that would violate 18 U.S.C. ch. The USA PATRIOT Improvement and Reauthorization Act supplies samples of this type of statute as well.
Crime is usually territorial. It is ordinarily a matter of the law of the place where it occurs. Nevertheless, a surprising number of American criminal laws apply outside of the United States. Application is generally a question of legislative intent, expressed or implied.
Three statutes enacted in the 109 th Congress have sections that enjoy extraterritorial application. The USA PATRIOT Improvement and Reauthorization Act, P.L. 109-177 , includes a handful of crimes that feature explicit extraterritorial jurisdiction. The Trafficking Victims Protection Reauthorization Act, P.L. 109-164 , carries the Mann Act (18 U.S.C. ch. 117) and the peonage laws (18 U.S.C. ch. 77) overseas under certain circumstances. The Telephone Records and Privacy Protection Act, P.L. 109-476 outlaws various forms of fraud associated with the acquisition of telephone and e-mail records and states that extraterritorial jurisdiction exists over such offenses.
Comparable legislation pending at adjournment of the 109 th Congress included:
Border Protection, Antiterrorism, and Illegal Immigration Control Act ( H.R. 4437 )(House passed); Comprehensive Immigration Reform Act ( S. 2611 )(Senate passed); H.R. 5212 (relating to sexual offenses under the Military Extraterritorial Jurisdiction Act); S. 1226 (relating to human trafficking by federal contractors); S. 2402 (relating to money laundering); S. 12 (relating to war profiteering); S. 2356 (relating to war profiteering); S. 2361 (relating to war profiteering); H.R. 4682 (relating to war profiteering); S. 2368 (relating to alien smuggling); S. 2377 (relating to alien smuggling); S. 2454 (relating to alien smuggling).
In some instances the explicit statements of extraterritorial jurisdiction would have replicated the coverage the courts would have otherwise recognized. In some instances they would have expanded extraterritorial jurisdiction beyond that which the courts would have recognize in the absence of a statement; in still others they apparently would have curtailed it by mentioning some of the traditional grounds implicitly recognized and failing to mention others.