Jeffrey A. Meyer (Quinnipiac University – School of Law) has posted Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of U.S. Law (Minnesota Law Review, Forthcoming) on SSRN.

Scores of federal criminal and civil statutes are “geoambiguous” – they do not say whether they apply to conduct that takes place in foreign countries. This is a vital concern in an age of exploding globalization. The Supreme Court regularly recites a “presumption against extraterritoriality” but just as often overlooks it and opts to apply geoambiguous law abroad. The Court’s inconsistency bespeaks a deep divide among scholars. Judicial unilateralists favor liberally imposing U.S. law abroad to respond to unwanted effects from foreign conduct. Judicial territorialists favor restraint and a return to traditional territoriality to avoid international conflict. And judicial interests-balancers favor multi-factored, case-by-case consideration of whether it is “reasonable” to apply geoambiguous law abroad. This Article advances a new approach – a proposed rule of “dual illegality” to govern how courts apply geoambiguous laws. Under a dual illegality rule, U.S. courts should decline to apply geoambiguous laws to penalize or regulate conduct that occurs in the territory of a foreign state unless the same conduct is also illegal or similarly regulated by the law of the foreign territorial state. A similar rule of dual illegality has worked for many decades as a limitation in countless criminal extradition treaties. A dual illegality rule would revitalize traditional territoriality values as a limiting principle on U.S. assertion of its law abroad, while also allowing extraterritoriality when there is the least likelihood of provoking political dispute. The response to greater globalization should be less jurisdictional contestability and more reliance on rules that do not invite judges – as the rules wrongly do now – to engage in policy-like assessments of the needs or interests of the United States in having its law applied to activity abroad. Courts should apply a dual illegality rule to decide the scope of geoambiguous law.

The Eleventh Circuit upheld the conviction finding that (1) Miranda warnings were unnecessary; (2) the statute applied extraterritorially; and (3) the “purchase” of a child may occur through payment directly to the child, rather than a third party. The Court found that generally, “statements obtained by foreign officers conducting interrogations in their own nations have been held admissible despite a failure to give Miranda warnings to the accused.” The reasoning behind this rule is that the exclusion of evidence by an American court has little to no deterrent effect on foreign police practices. That is, our “Constitution cannot compel such specific, affirmative action by foreign sovereigns.” Moreover, the joint venture exception does not apply because American officials did not know of Frank’s presence in Cambodia until after he was arrested and did not participate in Frank’s detention or interrogation.

Seems to me the result would be the same in a court-martial where the issue could be Article 31, UCMJ, as well as Miranda.

As for the extraterritorial application of the statute, the Court found that because Section 2251A requires that in the course of the prohibited conduct, the defendant or minor “travel[ ] in … interstate or foreign commerce,” Congress plainly intended that the statute sweep broadly and apply extraterritorially. The language of § 2251A requiring travel in foreign commerce, the broad sweep warranted by child pornography offenses, and Congress’s repeated efforts to prevent exploiters of children from evading criminal punishment demonstrate that Congress intended § 2251A to apply extraterritorially. Moreover, such an intent is consistent with international law, which permits jurisdiction under the “nationality” principle.

A military judge sitting as a general court-martial convicted appellant, pursuant to her pleas, of larceny of government property and fraud against the United States (two specifications), in violation of Articles 121 and 132, Uniform Code of Military Justice, 10 U.S.C. §§ 921 and 932 [hereinafter UCMJ]. The military judge sentenced appellant to a dismissal, confinement for seven months, a fine of $135,000, and forfeiture of all pay and allowances. Prior to convening authority action, appellant, a reserve officer, was released from active duty (REFRAD). While pending appellate review, appellant received orders placing her in an inactive status. After convening authority action approving her dismissal, she received discharge orders and an honorable discharge certificate. As our court’s recent opinions reflect, when a soldier pending punitive discharge receives an administrative discharge, contrary to regulation, the discharge may be either void or voidable, depending on the explicit terms of the regulation involved. In this case, we find appellant’s administrative discharge was issued contrary to regulation.

In a detailed review of prior case law and applicable regulations ACCA decides that the administrative discharge was void. Based on the language in the case, it appears the Army is having a problem with favorable discharges being issued while an appeal is still pending.

Query, in this case was the client better served by withdrawing her appeal, and challenging the matter later in federal court? In this case it appears that the prosecution was able to take steps to correct the error because the appellant filed a brief raising the issue.

Sens. Leahy and Kaufman and Rep. David Price introduced companion bills in the Senate and House titled the “Civilian Extraterritorial Jurisdiction Act” (CEJA?), on Feb. 2, 2010. H.R. 4567 and S. 2979 create a new section 3272 in title 18.

Personal Jurisdiction: What Does It Mean for Pay to be “Ready for Delivery ”in Accordance with 10 U.S.C. § 1168(a)?

Know Your Ground: The Military Justice Terrain of Afghanistan