America Is Becoming The World's Policeman. The Problem Is That It Does Not Extend Rights To Foreigners, It Just Rams The Indictment Down Their Throats.

April 23, 2015, 11:00 am

It’s time to talk about the Fourth Amendment

By Samuel Guzman

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Vienna, March 2014. Dmitry Firtash, a wealthy Ukrainian industrialist, is arrested at the request of the United States, under a warrant from the FBI. Unbeknownst to Firtash, a secret grand jury had indicted him in June 2013 on charges of conspiracy to violate the Foreign Corrupt Practices Act (FCPA) and he had been placed on a government watch list ever since. As alleged in court documents, Firtash along with five other defendants had bribed government officials in India to allow the mining of titanium mines. Claiming his innocence, Firtash has been fighting extradition to the United States ever since he posted a record bail of €125 million.

San Francisco, April 2015. A federal judge dismissed a bribery case with harsh words for prosecutors, calling it “the most misguided prosecution” he had seen in 50 years of criminal practice because prosecutors had stretched too far the reach of U.S. law without respecting the defendants’ rights of due process. The government claimed that two Ukrainian officials, Yuri Sidorenko and Alexander Vassiliev had paid bribes to an official of a UN agency based in Canada in order to secure lucrative contracts for their business.

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Beyond the nationality of the defendants, the connection between the two cases revolves around the steady creeping of the jurisdiction of the U.S. Justice system, that some have claimed is abusive. Buoyed by a plethora of acts and statutes issued by Congress over the past decades that increase the powers of enforcement well beyond the limits of sovereign American territory, the number of cases involving non-U.S. citizens that nevertheless fall under the scope of U.S. law has multiplied.

Under the guise of combatting transnational criminal organizations that transcend national borders, U.S. federal law has increasingly blurred the boundaries between criminal behavior committed on U.S territory and crimes committed beyond the limits of the U.S. For example, a foreign company that uses U.S.-based servers, US banks or conducts business with any entity with these types of US contact could be subject to federal criminal laws.

As Justice William Brennan bemoaned two decades ago in the seminal United States v. Verdugo-Urquidez case, “Foreign nationals must now take care not to violate our drug laws, our antitrust laws, our securities laws, and a host of other federal criminal statutes”. Indeed, the U.S has signed56 mutual legal assistance treaties (MLATs) with third countries. MLATs allow agents of the law to gather and exchange evidence and intelligence in criminal matters and increase the extraterritorial reach of the government.

However, the other side of the coin in this ongoing crusade against international and transnational crime is that even if defendants can be brought before U.S. courts, none of the safeguards enshrined in the U.S. Constitution are extended to them.

Take the Fourth Amendment, which protects the individual’s right to be free from unreasonable search and seizures and requires warrants to be supported by a probable cause, to searches conducted by U.S. agents in foreign countries. The Supreme Court has repeatedly refused to apply it for non-U.S. citizens, even in the face of criticisms that it could lead to abusive behavior by law enforcers. What this means is that the Court will not look at the way the evidence provided was collected nor at the way the arrest warrant was carried out.

Exempted from the rules and safeguards of the U.S. Constitution, collecting foreign intelligence has led to a string of cases that were built on blatant human rights abuses conducted by local authorities with the blessing of U.S. law enforcement agents. For example, in the United States v. Alvarez Machaín case, the Supreme Court upheld the kidnapping of a foreign national by U.S. agents for the purpose of being brought before an American court – a case that was strongly condemned by then-Mexican President Carlos Salinas who even passed a law making nationals aiding and abetting acts of transnational kidnappings criminals “against the homeland”.

Thus we have a perverse double standard: a foreign national can be tried before a U.S. court for violating a U.S. federal statute that could lead to possible imprisonment in a U.S. federal prison, but that national is prohibited from enjoying even the elementary protection awarded by the Fourth Amendment.  As Alvarez Machaín and the 2015 San Francisco cases showed, the growing number of prosecutions involving extraterritorial searches could damage the credibility of the United States and its justice system at home and internationally.

It is highly unlikely that the Framers of the Constitution would have ever sanctioned the U.S. federal government to expand its jurisdiction into the homes of foreign nationals with the aim of prosecuting them. The same Congress that has enacted far-reaching federal statutes shouldn’t turn a blind eye this miscarriage of justice anymore.

Guzman is a policy analyst based in Washington DC with extensive experience in the South American region.