It's hard not to feel satisfaction at the indictment of soccer officials for apparently corrupting the globe's Beautiful Game— soccer in America but football to most of the world. The decision of newly reelected Sepp Blatter to quit as president of the Federation Internationale de Football Association suggests a possible deal with U.S. prosecutors. After arresting seven top FIFA executives in advance of the organization's annual meeting in Switzerland, American law enforcement indicated that Blatter was a target of their investigation.
Yet emotional satisfaction is a bad basis for government policy. While the U.S. is not the only nation to assert extraterritorial jurisdiction, it does so more often and more broadly than anyone else. As a result, what has been called “the new imperialism” causes other nations to bridle at Washington’s imposition of its preferences on others. For instance, a Russian spokesman promptly denounced the FIFA case as “another case of illegal extraterritorial application of U.S. laws.”
However self-serving Moscow’s objection, American prosecution of crimes even when committed by foreigners in foreign lands is more than a little hypocritical since the U.S. (rightly) refuses to accept the jurisdiction of the International Criminal Court. Moreover, punishing foreigners creates future risks. Doing so works in America’s favor only as long as the U.S. is the dominant force on earth. Americans might rue the precedent set by their own government in a world where power is more equally distributed. Someday Americans might get indicted by other nations for “crimes” committed in the U.S.
How did Washington become the world's policeman and prosecutor in the case of FIFA? Despite substantial youthful enthusiasm for the game, global football remains a modest phenomenon in America, lagging well behind baseball, basketball, hockey, and of course American football (hence the odd U.S. name of soccer). Most of the alleged crimes involve foreigners acting overseas. The impact on America is less than that on almost every other nation on earth, since virtually everywhere the sport commands greater loyalty from a larger percentage of the population.
Nevertheless, Attorney General Loretta E. Lynch was at her publicity-seeking best in announcing the indictments. Some of the criminal acts took place in America, she explained, and the corruption affected, yes, interstate (and foreign) commerce, the boilerplate justification used by Uncle Sam for regulating most everything.
No doubt the indictment satisfied the letter of U.S. law since some of the defendants met in America (a convenient transit point especially for Latin Americas) and used the U.S. banking system (triggering bribery, money laundering, racketeering, and wire fraud statutes). Explained FBI Director James Comey: “If you touch our shores with your corrupt enterprise, whether that’s through meetings or using our world-class financial system, you will be held accountable.”
But good law doesn’t make good policy.
Over-criminalization is a serious problem in America. Increasingly crimes are not malum in se, that is, inherently immoral, and do not require mens rea, that is, knowledge that conduct is illegal. For instance, government increasingly treats a host of economic and environmental actions as criminal rather than civil offenses. Prosecutorial tools also have expanded. In 1970 Congress approved the Racketeer Influenced and Corrupt Organizations Act to target the mafia. Since then RICO has been wheeled out against most any collection of individuals, such as abortion protestors.
Criminal law traditionally was left to the states. Today there are some 4500 federal criminal laws and even more regulations. Warned federal appellate court judge Alex Kozinski: “Violations are so common that any attempt to go after all criminals would sweep up millions of people.” For instance, in April eight Atlanta school employees were sentenced to prison for “racketeering”—after changing their students’ answers to improve their competency test scores.
Former Speaker Denny Hastert recently was indicted for making cash withdrawals under the amount which must be reported. But in complying with that requirement he violated the law by breaking up (“structuring”) his withdrawals. The discreditable conduct he apparently was hiding doesn’t turn his cash practices into a valid reason to prosecute him.
As American power has grown, so has Washington's willingness to apply its laws to the rest of the world. Traditionally a government had to have actual jurisdiction over you before it could claim the authority to jail you. But might rather than right has spurred U.S. extraterritoriality. America hosts the world's largest economy and most important financial system. It is hard for global actors to avoid it. Moreover, U.S. economic and military power allows it to demand of others what they would never demand of Americans.
Washington has routinely abducted foreigners overseas, both those charged with drug offenses and terrorism. Perhaps the most extreme case of armed extradition of a sort was the 1989 invasion of Panama, after which ousted dictator Manuel Noriega was transported to America and convicted of violating U.S. drug laws. He had been indicted nearly two years before for allegedly accepting a bribe to protect the Medellin cocaine cartel and conspiring to ship drugs to America. Although Noriega had not committed his crimes in America or used the U.S. banking system, President George H. W. Bush cited arresting Noriega as one of his four justifications for war.
Washington relied on the “protective principle,” allowing extraterritorial action in cases where vital interests are threatened. But that’s a tough case to make for normal criminal activity. Nevertheless, Noriega lost his fight against U.S. jurisdiction. His intent to violate the law was ruled to be enough. The federal district court stated that “even if no overt acts or effects occurred within the territorial borders, the object of the alleged conspiracy was to import cocaine into the United States.” At least U.S. drug laws then were consistent with those of other nations. That, however, is changing, as Latin American governments increasingly recognize the harm caused by drug prohibition. Imagine if Saudi Arabia indicted and extradited Americans for conspiring to smuggle Bibles or booze into the Kingdom.
Even more problematic has been the Justice Department crusade to turn foreign banks into arms of the IRS. The U.S. has gone after Swiss banks with the greatest enthusiasm, paying informants, filing criminal prosecutions, and imposing multi-billion dollar fines for accepting deposits from Americans. The campaign got rolling with a major court victory over UBS in 2008. Since then several other banks have pled guilty and around 100 accepted a “settlement” involving “total cooperation,” as in snitching on their American depositors. Just last week Rothschild Bank AG and Banca Credinvest SA agreed to pay multi-million dollar fines for offering banking services to Americans. Whatever the moral responsibility of wealthy U.S. taxpayers, foreign bankers commit no wrong in handling such accounts. Citizens of Switzerland and the rest of the world have no obligation to help fill Uncle Sam’s coffers to finance more waste and wars.
Congress also passed the Foreign Account Tax Compliance Act (FATCA) requiring all non-American financial institutions to report any accounts held by Americans. As a result, foreign banks face substantial costs in dealing with U.S. citizens, even those fully compliant with American tax laws. Foreign financial institutions must either transmit the information to their government for release to the U.S. or send the information directly.
As a consequence, many foreign banks now refuse to serve Americans. More Americans living abroad are renouncing their citizenship. Foreign governments also have complained about Washington conscripting their financial institutions as tax collectors. The U.S. has offered reciprocity, but only America taxes income wherever earned in the world.
Perhaps the most expansive form of extraterritoriality is sanctions. Washington is ever ready to ban or limit trade, financial transactions, and even travel. By one count, the U.S. imposed 61 different economic penalties between 1993 and 1998, as many as during the previous eight decades. Sanctions predate America’s founding, with the “nonimportation” movement and boycott of tea, for instance. In the early 1800s Washington prohibited trade with Britain and France.
Today Cuba, Iran, North Korea, Russia, Sudan, and Syria face various economic restrictions. But the U.S. does not just order about American companies. It also threatens foreign firms and banks. Washington’s dictates are amplified not only by the size of the American market, but through Swift, the Brussels-based organization which manages international financial transfers.
Traditionally sanctions applied to “U.S. persons,” that is, American citizens and residents, companies formed in the U.S. and their branches, and firms located in America. In an attempt to prevent construction of the natural gas pipeline between Western Europe and the Soviet Union Washington targeted U.S. subsidiaries and licensees, without great effect. Since no one else was prepared to join America in its embargo against Cuba, in 1996 Congress approved the Helms-Burton Act penalizing foreign subsidiaries of U.S. concerns and foreigners who “trafficked” in confiscated American property. Later sanctions against Iran, Libya, Sudan, and Syria also applied to resale of U.S.-origin goods, transactions with foreign firms, and foreign banks financing prohibited transactions.
Through both legislation and regulation Washington has constantly expanded the extraterritorial reach of U.S. penalties. European companies, in particular, have found themselves fined for activities which are legal under national as well as European Union law. American prosecutors have sought extradition of foreign nationals acting legally at home. Explained attorneys Ronald Meltzer and David Ross of WilmerHale, “U.S. law has undergone a significant shift: it effectively creates an expanding regime of secondary sanctions that are triggered by transactions that do not require a nexus to the United States.”
Helping foreign firms comply with complex U.S. sanction rules has become big business for major American law firms. Increasingly foreign banks are unwilling to handle transactions legal under domestic law. Many enterprises simply avoid dealing with disfavored nations entirely. Ironically, the system sometimes has favored U.S. firms, which are better able to obtain waivers. Sometimes other governments have enacted “blocking” statutes which prohibit their nationals from complying with foreign, i.e., American, restrictions deemed harmful to their national interest. Companies then have been caught in an impossible middle.
The moral fervor behind many of Washington’s many fevered crusades often is laudable. But a desire to do good does not warrant America attempting to play dictatress to the world. The end really does not always justify the means.
So it is with the U.S. indictments against corrupt soccer officials, and even more so with Washington's determination to make foreign banks agents of the IRS and foreign individuals and companies tools of U.S. foreign policy. Such overreach inevitably breeds abuse. It also invites retaliation in the future, when America no longer so dominates the globe. If Americans eventually find themselves in a foreign court for legal conduct in the U.S., they will have today's lawmakers and officials to thank.