Sara A. Solow

Document Type




The remainder of this Article is structured as follows. Part I discusses the United States government's current use of the Article III courts to combat global terrorism. First, it reviews data to show that there has been a whopping number of extraterritorial prosecutions for terrorism crimes brought since 9/11. Second, it surveys the case law to demonstrate that U.S. courts have failed to develop a due process test for assessing extra-jurisdictionality in those terrorism cases, and that this has been problematic because several cases have raised due process questions. Part II puts the discussion in Part I in context by exploring the larger body of United States law on extraterritorial criminal jurisdiction. First, Part II.A shows that the lack of a due process doctrine for limiting terrorism prosecutions is actually par for the course; as a whole, federal court opinions allowing for the extraterritorial application of the criminal law have been largely silent on the Due Process Clause. Next, Part II.B claims that the reason for this state of the doctrine is historical. Extraterritorial crimes necessitating a due process analysis only date back to 1980. In Part III, this Article shifts to a normative argument. Drawing on domestic criminal law in Part III.A and on the law concerning the extraterritorial enforcement of federal civil statutes in Part III.B, this Article argues that the absence of a Due Process Clause test for prosecuting overseas crimes is inconsistent with core tenants in American law. Part III.C examines drug-trafficking cases in the Ninth Circuit since the 1990s, the one body of cases in which judges have begun to fill the holes. In the Conclusion, this Article seeks to apply the lessons from Part III to contemporary extraterritorial terrorism cases. It sketches the outlines of a Due Process Clause test that U.S. courts should apply in terrorism prosecutions going forward.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.