Charming Betsey and the clutches of Uncle Sam

Whither comity?

The cause of the American Revolution was Americans’ objection to living under laws written by other people. They created their own country to be governed by their own laws.

Predictably they grew resentful when the British, even after the revolution, tried to enforce British laws on American soil—or rather on American ships, which under international law amounted to the same thing. Amid Britain’s war with France, British marines boarded American ships and seized men they claimed were deserters from the British navy. American officials complained, but for years the British government ignored the complaints. Britain’s navy was bigger than America’s. Eventually impressment, as the practice was called, contributed to the American decision to declare war on Britain in 1812.

By then American courts had embraced the principle that domestic law should accord with international law. In an 1804 case involving a ship called Charming Betsey, Chief Justice John Marshall declared, “An act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” The principle guided American jurisprudence for more than a century, not least because it reflected the reality that the United States wasn’t strong enough to impose its interpretation of international law on the rest of the world.

But sometimes America hitched a ride with more powerful countries. After the First Opium War of 1839-42, Britain insisted on extraterritoriality, by which British law, rather than Chinese, governed the behavior of British nationals in China. Other countries, including the United States, won similar treatment in an international zone in Shanghai, which had a police force and court system beyond the reach of the Chinese government.

Yet this remained an exception to the American rule until the twentieth century. As late as 1909, Associate Justice Oliver Wendell Holmes Jr. wrote in a case involving dueling American banana companies that local law applied to Americans in foreign countries. Holmes extrapolated to a rejection of extraterritoriality in general. “For another jurisdiction, if it should happen to lay hold of the actor, to treat him according to its own notions, rather than those of the place where he did the acts, not only would be unjust, but would be an interference with the authority of another sovereign, contrary to the comity of nations, which the other state concerned justly might resent.”

As America grew more powerful, its concern about the resentment felt by other countries diminished. When American troops occupied various countries of Central America and the Caribbean during the first three decades of the twentieth century, the American government refused to subject them to the laws of those countries. And after World War II, when America planted military bases in dozens of countries around the world, American troops were similarly shielded from local law. American law applied.

Uncle Sam’s reach extended further in the late twentieth century. Until this point, America’s practice of extraterritoriality had been primarily defensive, keeping Americans from being prosecuted overseas. Now it took the offensive, applying American criminal law to foreign nationals in their own countries. In 1988 Manuel Noriega, the de facto ruler of Panama, was indicted by federal grand juries in Florida on charges of violating American laws against drug trafficking. To some degree the indictments were simply a cover for the desire of George H. W. Bush to remove from power a dictator once friendly to America who had gone rogue. Yet under that cover Bush sent troops to Panama to capture Noriega and transport him to America, where he was tried and convicted. He served seventeen years in U.S. prison.   

Few people shed tears for Noriega, who was a convincingly despicable character. But more than a few questioned the right of the United States to snatch him away from his country and convict him under American law for things he did in Panama. This was precisely what Oliver Wendell Holmes had warned about, and it created the resentment he predicted.

More was coming. In 2023 Congress passed and President Joe Biden signed the Foreign Extortion Prevention Act (FEPA), which criminalized the solicitation of bribes by foreign officials. An existing law forbade Americans to pay bribes to foreign officials. Holmes would have questioned this law, too, on grounds that it should be left to foreign countries to police the paying of bribes within their borders. But the new law would have seemed especially outrageous. It was bad enough to prosecute Americans for actions in foreign countries, but to prosecute foreigners for actions in their own countries was utterly unjustifiable. This was what had been done to Noriega, but his appeared a special case. FEPA cast a broad net.

Defenders of FEPA called it a variant of the concept of universal jurisdiction, which for centuries had been applied to piracy and hijacking. The concept made sense for crimes on the high seas, beyond any national jurisdiction. After Britain abandoned slavery within its own empire, it tried to suppress it elsewhere. The antislavery precedent was expanded in the twentieth century to encompass egregious human rights violations, with courts in many countries claiming the right to prosecute such crimes committed in any country. The principle of universal jurisdiction was used to justify the 1960 capture of the former Nazi Adolf Eichmann by Israeli agents in Argentina and his trial and execution in Israel.

Yet America’s FEPA law was different. Universal jurisdiction applied to crimes against humanity. The FEPA law specified crimes against American notions of what constituted bribery. Such notions are culture-specific. In America, tipping waiters is not merely acceptable but expected. In some other countries it is considered demeaning. In many countries gift-giving is part of how business is done. In America it is usually not. In many cultures government officials would be thought negligent not to use their influence to help relatives. In America nepotism is often illegal.

As of October 2024 the FEPA law has yet to be tested. International law firms have warned their foreign clients to be aware of it, but no high-profile cases have reached trial. When they do, counsel for the defense might well point out that if the shoe were on the other foot—if Americans were prosecuted in foreign courts for actions taken in America—Americans would reject the idea out of hand.

Would the American courts or juries be moved? Probably not. The powerful do what they want. Comity of nations be damned.