Jurisdiction

The expansion of the theoretical bases of jurisdiction to prescribe, which is based on the thwarted extraterritorial narcotics conspiracy aimed at importation of narcotics into the United States, has been criticized. Various U.S. judicial decisions have expanded the objective territoriality theory to include offenses intended to have an effect on the United States, such as thwarted extraterritorial conspiracies. The decisions are the subject of criticism because, being thwarted, the offenses never actually cause such an effect. Because the extraterritorial conspiracy is thwarted, it arguably causes no significant effect on the asserting state's territory and does not give it jurisdiction.

To combat international narcotics trafficking, the U.S. Congress and the courts have expanded extraterritorial jurisdiction In addition to asserting jurisdiction over thwarted extraterritorial conspiracies, they have enacted laws with extraterritorial jurisdiction over new crimes, such as money laundering, even when such crimes have limited connection with the United States.

In the arrest of General Manuel Noriega, the president of Panama, for narcotics offenses, the United States sent troops into Panama, killing innocent civilians to arrest Noriega. The Noriega case is one of the most celebrated modern examples of the expansion of U.S. extraterritorial jurisdiction because of the use of so much force to arrest a head of state for acts that occurred in Panama (Andreas, p. 37).

In August 1986, the United States enacted the Omnibus Diplomatic Security Act of 1986, providing jurisdiction to extradite or prosecute perpetrators of international terrorism. The act provides for the U.S. prosecution of persons who kill U.S. nationals abroad when the offense was "intended to coerce, intimidate, or retaliate against a government or a civilian population." Hence, U.S. jurisdiction is provided even though the actions occur abroad.

The continued expansion of U.S. territorial jurisdiction to combat organized crime was reflected in U.S. Attorney Zachary W. Carter's announcement on 7 October 1997 of stricter interpretation of U.S. jurisdiction over its territorial waters with regard to regulating casino boats. The new interpretation required casino boats that sail from New York City to travel at least twelve miles from shore before passengers could start gambling. New York City Mayor Rudolph W. Giuliani had urged federal officials to invoke the twelve-mile start in order to curb organized crime influences (Fried).

The U.S. has broadly extended its extraterritorial jurisdiction to try to ensure that other governments meet their international law obligations to combat transnational organized crime. Under the Foreign Assistance Act of 1961, as amended (the "FAA"), the U.S. Department of State is required to prepare an annual International Narcotics Control Strategy Report (INCSR). The INCSR provides the factual basis for the presidential narcotics certification determinations for major drug-producing or drug-transit countries. The law requires that if the United States does not certify a country for its actions occurring totally outside the U.S., then it must suspend most foreign assistance and vote against multilateral development bank lending to that country.

The statute requires that for each country that received international narcotics assistance in the past two fiscal years, a report must be issued on the extent to which the country has "met the goals and objectives of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances."

The convention requires that parties take legal measures to prohibit, criminalize, and punish all forms of illicit drug production, trafficking, and drug money laundering, to control chemicals that can be used to process illicit drugs, and to cooperate in international efforts to meet these goals. The convention also requires signatory countries, such as the United States to take extraterritorial criminal action over narcotics offenses committed on the high seas, and to cooperate in allowing an investigating state to search vessels flying its flag, and otherwise cooperate in investigations on the high seas.

In October 1995, President Bill Clinton in President Decision Directive (PDD) 42 imposed sanctions under the International Emergency Economic Powers Act (IEEPA), blocking the assets of the leaders, cohorts, and front companies of identified Colombian narcotics traffickers in the United State and in U.S. banks overseas. IEEPA authorities required the U.S. Secretary of the Treasury to impose sanctions, including freezing assets held in U.S. financial institutions, against nations and entities deemed a threat to the national security, foreign policy, or economy of the United States. The directive provides a series of new initiatives: (a) identifying nations that are most egregious in facilitating money laundering, and considering sanctions if after negotiation they do not take adequate steps; (b) using the authority of the IEEPA to block the U.S. assets of cartel leaders and front companies and to bar trade between them and the United States as outlined in Executive Order 12978; (c) negotiating an international Declaration on Citizens' Security and Combating International Organized Crime; (d) developing a legislative package of new authorities to better enable U.S. agencies to investigate and prosecute all aspects of international organized crime; and (e) seeking additional resources to provide increased U.S. anticrime training and assistance to friendly governments.

On 21 October 1995, President Clinton issued Executive Order 12978, under the authority of IEEPA. It finds that the activities of significant foreign narcotics traffickers centered in Colombia and the unparalleled violence, corruption, and harm constitute a usual and extraordinary threat to the U.S. national security and economy. Additionally, U.S. individuals and companies are forbidden from engaging in financial transactions or trade with the identified individuals or enterprises connected to the Colombian Cali Cartel. The Treasury Department identified 359 businesses and individuals whose assets had been blocked since 1995 under authority of the President's Executive Order. As part of the PDD 42 process, an interagency group is reviewing whether measures can be taken against other international criminal cartels (U.S. Department of State, p. 532).

U.S. extraterritorial jurisdiction has expanded to combat alien smuggling. On 9 November 1995 the report of the Interagency Working Group (IWG), "Deterring Alien Smuggling," determined that alien smuggling must be dealt with at its source as well as in those transit countries through which migrants are moved to the United States. The IWG recommended programs to disrupt global smuggling by increasing the awareness of foreign governments. The IWG has helped prepare a model antismuggling law for adoption in the Western Hemisphere and recommended that additional human resources be devoted to combating alien smuggling by expanding U.S. overseas enforcement capability. In June 1997 the Immigration and Naturalization Service (INS) announced a major expansion of its offices overseas to "go to the source" of the immigrant smuggling problem (Andreas, pp. 40–41).

Congress vested in U.S. district courts jurisdiction over offenses punishable by federal law that have been committed within the special U.S. maritime and territorial jurisdiction. Such jurisdiction extends to the high seas, to any other waters within the U.S. admiralty and maritime jurisdiction that remains outside the jurisdiction of any particular state, and to any U.S. aircraft while in flight over the high seas, or over any other waters within the U.S. admiralty and maritime jurisdiction outside the jurisdiction of any particular state.