Due Process by Proxy: United States v. Brehm and the Problem of Extraterritorial Jurisdiction over Foreign Nationals

BY Edward F. Roche

Sean Brehm, a South-African citizen employed by a private military contractor, assaulted a British contractor on a NATO base in Afghanistan.  Brehm was transported seven thousand miles to the United States, a country he had never visited, where he was tried, convicted, and imprisoned.  On appeal, Brehm contended that the court’s exercise of jurisdiction over him violated due process.  The Fourth Circuit, in United States v. Brehm, upheld his conviction.  This Recent Development argues that, although the court reached the correct result, its reasoning was unsatisfactory and will be unhelpful in future cases.  In explaining the criteria for determining whether a given exercise of extraterritorial jurisdiction is consistent with due process, the court borrowed from two opposite sides of a circuit split, and also added an opaque, “proxy-based” method of reasoning.  This Recent Development explains the limitations of these two different approaches and suggests a new way forward.  Courts should instead simply consider whether the defendant was on actual or constructive notice that, first, he was subject to U.S. laws, and second, his conduct was criminalized in the United States.  The suggested approach would bring the law in this area closer to the widely-understood requirements of the Due Process Clause.  It would be more transparent, which would benefit all involved, and would not jeopardize national security.

DOWNLOAD PDF | 91 N.C. L. Rev.1463 (2013)