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Challenges to the DOJ's Jurisdiction over Extraterritorial Conduct
Editor's note: Last month, the authors observed that the U.S. Supreme Court has in recent years attempted to limit the extraterritorial reach of federal courts, making it harder for them to get personal jurisdiction over foreign defendants (Daimler AG v. Bauman, 134 S. Ct. 746 (2014), and limiting the reach of federal securities laws (Morrison v. National Australia Bank, 561 U.S. 247 (2010)) and the Alien Tort Statute (Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659 (2013)). The results of these efforts have been less than stellar. However, as the authors point out here, there are some defenses that may still work.
Presumption Against Extraterritoriality in Criminal Cases
Morrison and its progeny do provide some assistance for future attacks on extraterritorial application of criminal laws. For instance, the Supreme Court has made clear that courts must apply a presumption that federal laws only apply to conduct that took place within the United States, and that the presumption may be rebutted only when there is a “clearly expressed congressional intent” that the law apply extraterritorially. RJR Nabisco, 136 S. Ct. at 2100. After RJR Nabisco , it is crystal clear that this presumption against extraterritoriality applies not only to civil statutes, but also to criminal ones.
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