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A. Extraterritoriality of Penal Statutes

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Statutes defining criminal conduct may be given extraterritorial effect by Congress insofar as they apply to United States citizens abroad." Analysis of the legislative intent with respect to extraterritorial effect requires application of the standard set forth in the leading case, United States v. Bowman." Bowman involved a federal indictment for conspiracy to defraud a corporation in which the United States was a shareholder. The crimes were committed by three American citizens and a British subject outside the territorial jurisdiction of the United States." The trial court sustained an objection to the indictment based upon the fact that the penal statute, which proscribed various frauds against the United States, did not expressly provide for extraterritorial application." In reversing, the Supreme Court established a two-pronged test to determine whether a penal statute that is silent on the issue of extraterritoriality is intended by Congress to be applied extraterritorially. First, the government must have jurisdiction over the offense under international law." Second, the extraterritorial application "depends upon the purpose of Congress as evinced by the description and nature of the crime. . . ."" With respect to the second part of the test, the Court declared that statutes defining crimes against private individuals or their property should not be given extraterritorial effect unless application outside the United States is authorized expressly in the statute. Different considerations apply, however, if a statute is enacted to protect the govern

Blackmer v. United States, 284 U.S. 421, 437 (1932); accord, United States v. Cotten, 471 F.2d 744, 749 (9th Cir. 1973), cert denied, 411 U.S. 936 (1974); see RESTATEMENT, supra note 50. §§ 30-32. The Blackmer Court pointed out:

While the legislation of the Congress, unless the contrary intent appears, is construed to apply only within the territorial jurisdiction of the United States, the question of its application, so far as citizens of the United States in foreign countries are concerned, is one of construction, not of legislative power.

284 U.S. at 437. With respect to conduct by citizens of other nations occurring outside the United States, the extraterritorial effect depends on whether the exercise of jurisdiction is necessary to deal with a potentially adverse effect upon the security or governmental functions of the United States. Eg, United States v. Pizzarusso, 388 F.2d 8, 10-11 (2d Cir.), cert. denied, 392 U.S. 936 (1968); Rocha v. United States, 288 F.2d 545 (9th Cir.), cert. denied, 366 U.S. 948 (1961).

260 U.S. 94 (1922).

" Id. at 95.

" Id. at 97.

"Id. Under settled principles of international law, the United States would have jurisdiction over actions engaged in or ordered by United States officials outside the United States. See Restatement, supra note 50, §§ 30-32.

54 260 U.S. at 97.

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[Vol. 54:1 ment of the United States from criminal activity, "especially if committed by its own citizens, officers or agents."" The Court noted that such cases could be divided into two classes. In the first, extraterritorial application would not be appropriate "because of the local acts required to constitute" the offenses." In the second class of statutes, however, the offenses "are such that to limit [their] locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for [crimes] as easily committed by citizens... in foreign countries as at home." The Court concluded that "Congress has not thought it necessary to make specific provision in the law that the locus shall include . . . foreign countries, but allows it to be inferred from the nature of the offense."'"

Application of the principles articulated by the Bowman Court does not resolve the question of extraterritorial application of the Act. A potential violation of the Act by conduct outside the United States would not entail a purely private matter; rather, it would involve an action by the government's own "officers or agents." Under Bowman, therefore, the issue is whether a violation of the Act is a crime that "can only be committed within the territorial jurisdiction of the Government because of the local acts required to constitute" the offense or whether limitation of the Act "to strictly territorial jurisdiction would . . . greatly. . . curtail the scope and

"Id at 98 The Court cited American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909), wherein it had rejected extraterritorial application of the antitrust statutes in a civil suit 260 US at 98. The Court reasoned: "If punishment... is to be extended to include offenses committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard.” Id In recent years, the courts have narrowed this exception when dealing with federally regulated matters by finding that the challenged overseas activities had "effects" within the United States See Note, Extraterritorial Application of United States Laws: A Conflict of Laws Approach, 28 STAN. L. Rev. 1005, 1010-24 (1976) and cases cited therein. * 260 U.S. at 98 The Court reasoned that

Id

[t]he same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the Government's jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers, or agents.

Id The Court listed a number of crimes that would be given extraterritorial effect even though the underlying statutes were silent as to territoriality: certification of a false invoice by a consul; forging a ship's papers; enticing desertion from the Navy; bribery of a civil, military or naval officer, crimes dealing with property captured as a prize; stealing property furnished to the military Id. at 99-100.

"Id at 98

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usefulness of the statute and leave open a large immunity."" The Act falls between the two classes set forth in Bowman. The statute makes it unlawful to use the military as a "posse comitatus,” a prohibition that is purely domestic in application." The statute, however, qualifies the term "posse comitatus" with the phrase "or otherwise to execute the laws," which leaves open the possibility of extraterritoriality. Moreover, the phrase "to execute the laws," which is derived from the constitutional powers of the President," reflects an important source of the President's authority to act overseas to protect American lives and property." On the other hand, it is by no means clear from the nature of the offense prohibited by the statute that a strictly territorial interpretation would frustrate its scope and usefulness.

B.

Limitations on Executive Authority

The statutes described as having an extraterritorial effect in Bowman all operated as an aid to executive power by serving to punish acts traditionally considered to be illegal." The Posse Comitatus Act, however, is a limitation on executive power." It does not make the object of executive action illegal; rather, it is addressed solely to the use of an otherwise legitimate means of achieving that objective.

A congressional limitation on executive authority raises substantial constitutional questions." The Supreme Court has recognized the constitutional authority of the President to act as the "sole organ of the federal government in the field of international relations."" Although this does not mean that Presidential power over

"See, eg, United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936): Durand v. Hollins, 8 F. Cas. 111 (C.C.S.D.N.Y. 1860).

"See note 60 supra.

"See 7 CONG. Rec. 3847 (1878) (remarks of Rep. Knott). The fact that the language of the Act includes within its sanctions "[w]hoever . . . uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws," is some indication that the Act's restrictions reach "from the Commander-in-Chief down to the lowest officer in the Army who may presume to take upon himself to decide when he shall use the military force in violation of the law of the land." Id.

"See 41 Op. Att'y Gen. 313, 331 (1957); Furman, supra note 7, at 127 and authorities cited therein.

"United States v. Pink, 315 U.S. 203, 229 (1942) (quoting United States v. CurtissWright Export Corp., 299 U.S. 304, 320 (1936)); accord, United States v. Belmont, 301 U.S. 324, 330 (1937). These cases did not involve a conflict between federal legislative and executive powers.

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[Vol. 54:1 foreign affairs is exclusive,” the degree to which Congress can control Presidential actions is unclear."

When the validity of an act of Congress is questioned, even when there is a serious doubt as to the constitutionality of the statute, "it is a cardinal principal that [the Supreme] Court will first ascertain whether a construction of the statute is possible by which the [constitutional] question may be avoided."" A statute should be construed, consistent with the will of Congress, to comport with constitutional limitations." Executive power in the field of foreign relations is broader than executive power in the domestic sphere." A statute such as the Act might represent a valid restraint on Presidential powers within the United States, but would raise more serious problems if it were interpreted as limiting Presidential authority abroad. Therefore, when the exercise of executive powers overseas is involved, the presumption against extraterritorial application of criminal statutes also provides a means of construing a statute in a manner that will avoid a difficult constitutional question. In the next section, the legislative history of the Act will be examined to determine whether such a reading of the statute is consistent with the intent of Congress.

The origin of the Posse Comitatus Act may be traced to hostility of the Democratic House of Representatives to the use of federal troops by President Grant, a Republican, for law enforcement pur

"See Banco Nacional de Cuba v. Farr, 383 F.2d 166, 182-83 (2d Cir. 1967), cert. denied, 390 U.S. 956 (1968); cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 640-55 (1952) (Jackson, J., concurring) (that the President is the Commander-in-Chief of the armed forces does not give him exclusive power over them).

"See, e... Emerson, The War Powers Resolution Tested: The President's Independent Defense Power, 51 Notre Dame Law. 187 (1975); Glennon, Strengthening the War Powers Resolution: The Case for Purse-Strings Restrictions, 60 MINN. L. Ræv. 1 (1975); King & Leavens, Curbing the Dogs of War: The War Powers Resolution, 18 HARV. INT. L.J. 55 (1977); Note, 1973 War Powers Legislation: Congress Re-Asserts Its Warmaking Power, 5 LOY. CHI. L.J. 83 (1974). See generally G. SUTHERLAND, CONSTITUTIONAL Power and World AFFAIRS (1919); Casper, Constitutional Constraints on the Conduct of Foreign and Defense Policy: A Nonjudicial Model, 43 U. Cm. L. Rev. 463 (1976).

"E.R., United States v. Thirty-Seven Photographs, 402 U.S. 363, 369 (1971); Crowwell v. Benson, 285 U.S. 22, 62 (1932); see Drinan v. Nixon, 364 F. Supp. 854, 858 (D. Mass. 1973). " United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, AFL-CIO, 413 U.S. 548, 571 (1973).

"See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).

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poses in several southern states during the Reconstruction Era and during the disputed Presidential contest in 1876. Although Samuel J. Tilden, the Democratic candidate, obtained a plurality of both the popular and electoral votes, challenges to the certification of the electors from several southern states left Tilden one electoral vote short of victory, with nineteen votes in doubt. Congress, with a Republican majority in the Senate, and a Democratic majority in the House, was unable to resolve the matter, and turned the issue over to an electoral commission. The commission gave all disputed votes to the Republican candidate, Rutherford B. Hayes, providing him with a one-vote victory margin and the result was ratified by Congress. The willingness of Hayes to promise a withdrawal of federal troops from an active role in the South apparently proved to be an important factor in obtaining Democratic support for the final result, known as the "Compromise of 1877.""

When the first version of the Act was debated by the Fortyfourth Congress in 1877, there was a lame duck Republican President, a Democratic majority in the House, and a Republican majority in the Senate. This version was proposed by the House as a rider to an Army appropriations bill." The rider, which was domestic in orientation and purpose, prohibited use of the Army to support claims of named individuals to hold office in various southern states, along with a general ban on use of the Army "in the support of the claims, or pretended claim or claims, of any State government, or officer thereof, in any State, until such government shall have been duly recognized by Congress." This proposal reflected Democratic dissatisfaction with the continued presence of federal

" President Grant ordered military troops to the polls in Florida, South Carolina and Louisiana to guard canvassers and to prevent fraud. Furman, supra note 7, at 94. For a general description of the events surrounding the passage of the Posse Comitatus Act, see J. HICKS, G. MOWRY & R. BURKE, THE AMERICAN NATION 44-48 (1971); Furman, supra note 7, at 92-97; Lorence, The Constitutionality of the Posse Comitatus Act, 8 U. KAN. CITY L. REV. 164, 169-74 (1940); Meeks, supra note 23, at 86-93.

"See Hicks, supra note 75, at 47-48.

"H.R. 4691, 44th Cong., 2d Sess. (1877). The primary feature of the appropriations bill was a reduction in the size of the Army.

T 5 CONG. REC. 2152 (1877). During the debate, Congressman Atkins spoke in general about the "nger" of using large standing armies "to secure the execution of the laws," and spoke specifically in opposition to the use of the soldiers as "policemen" in the resolution of disputed claims to office in the South. Id. at 2112 (1877). Congressman Banning criticized the use of the Army "as a police force" and denounced a statement by the Attorney General authorizing deputy United States Marshals to use military personnel as a posse comitatus during the 1876 election. Id. at 2117.