Thursday, January 3, 2013

Prosecutorial Overreaching

A couple articles (h/t Instapundit) on prosecutorial overreach. 

The first article discusses the offenses clause and universal jurisdiction. Normally, under criminal law, a government can only prosecute someone for an act that occurred within its jurisdiction which violated a law of its jurisdiction. Thus, for instance, New York cannot arrest and prosecute someone for doing something in Arizona just because it violated New York law, nor can it prosecute someone in New York for violating an Arizona law. The same principles generally apply internationally. However, there is an exception made in the Define and Punish Clause of the Constitution for certain crimes against international law, such as piracy, that occur in international waters. However, like most everything else, the Federal government has been pushing the envelope of its authority. In this case, the Volokh Conspiracy notes a case where the United States arrested three men in a foreign country for acts that had no nexus with the United States--essentially, the men were arrested because they were planning on participating in a foreign civil war. The article describes the facts:
A few days before Christmas, the U.S. indicted three men at the Federal District courthouse in Brooklyn for plotting suicide bomb attacks. This is an extraordinary, almost unique case: none of the people or conduct has any connection to the U.S. The defendants are foreign nationals, captured by some African government ont their way to join up with al-Shabab, the Somali Islamist group. To be clear, there is no suggestion that they planned to target American nationals or facilities, or had even ever been to this country before.

This is an aggressive – and unconstitutional – assertion of universal jurisdiction. The U.S. is prosecuting foreign nationals for their participation in a foreign civil war. Congress, as the Supreme Court recently reminded us in the Health Care decision, is truly one of limited regulatory powers, and thus the first question about such a case is what Art. I power gives Congress the power to punish entirely foreign conduct with no U.S. nexus.

The men have been charged under the “material support for terrorism” statute, 18 USC 2339B . Apart from the many controversies about the substantive sweep of the law, it casts a very broad jurisdictional net. By its terms, it applies to foreigners who support designated foreign terror groups with no connection to the U.S. In other words, it makes terrorism anywhere a federal offense.
Does the U.S. government have universal jurisdiction? No. Jurisdiction derives from sovereignty, and the last I checked, the Federal government was not a world government. Even within the U.S., the Federal government does not enjoy (at least, theoretically) unlimited and unfettered power. These types of cases set a dangerous precedent not only for our government's over-reaching its authority, but that other governments might also do the same.

The second article, from Forbes, describes another, more widely spread shenanigan employed by prosecutors--freezing the assets of criminal defendants so that they can't afford to hire their own attorneys. The article describes incidences where the government did so because it rightfully feared it would lose a weak case to someone able to afford a legal team that could stand up to the Justice Department.

Another tactic I've seen used by the U.S. Attorney's office for minor matters (i.e., misdemeanors) to deny the right to counsel for poor or middle-class defendants is to drop any claim for imprisonment, and proceed only as to fines. Because the provision of a public defender is dependent on the threat of jail time, the U.S. Attorney essentially eliminates that person's ability to have legal representation.

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