Posted on 10/26/2017 8:28:18 AM PDT by Kaslin
I am in Switzerland this week interacting with and lecturing to students and faculty at the University of Zurich. The subject of our work is the U.S. Constitution and its protections of personal liberty.
In most countries, government has begrudgingly granted snippets of personal liberty to keep those who are demanding it at bay. Throughout history, kings and other tyrants have, from time to time, given in to pressures from folks to recognize their natural rights. These instances of "power granting liberty," as the practice has come to be known, usually have come about to avoid further bloodshed.
In the United States and Switzerland, however, the opposite took place. In both countries, sovereign states came together to establish a central government peacefully. This model is known as "liberty granting power." Indeed, the Swiss Constitution is modeled on our own, whereby free and independent states delegated some of their sovereignty to a new, limited central government.
Today, however, the two countries are embroiled in a below-the-radar dispute over whether U.S. federal courts can try Swiss nationals who have diligently followed Swiss law and who have never been in the U.S.
Here is the back story.
When Thomas Jefferson wrote the Declaration of Independence, he included a section he would later refer to as the indictment of British King George III. It characterized the "long train of abuses and usurpations" designed by the king to "harass our people, and eat out their substance." This was harsh language, even by today's standards.
One of those abuses and usurpations was "for transporting us beyond Seas to be tried for pretended offenses." He was referring to the British practice of charging colonists -- who had never been to Great Britain -- in London for behavior that was lawful in the Colonies but somehow allegedly ran afoul of English law.
The typical charge was speaking out and inducing others to oppose the king and Parliament or refusing to pay their unlawful taxes. These so-called crimes were often generally characterized as treason against the Crown.
This British practice of dragging American colonists before British judges and British juries was so offensive to the colonists that the Framers sought to prevent it from happening here by crafting two prophylactic clauses in the Constitution itself. One clause defined treason as only levying war against the United States or giving aid and comfort to our enemies. The other clause required that people be tried in the state where such crimes were alleged to have been committed.
The Constitution recognizes that American people and property can be harmed by foreigners in foreign countries, and the common law at the time required that if there was no harm, there was no crime.
These first principles -- crime is harm and people should be tried in the place where they are accused of committing a crime -- have been bedrocks of Anglo-American jurisprudence for hundreds of years.
The reason for trying a criminal case in the place where the action took place is to comply with the constitutional requirements of due process. The form of due process requires the pre-existence of the statute allegedly violated, notice of the violation, a trial before a neutral judge and jurors, and the right to appeal the trial's outcome, but the essence of due process is fairness.
Fairness at trial means that the defendant has the constitutionally required tools available to him, not the least of which are witnesses and tangible things to aid in his defense. The Framers knew this would be nearly impossible to achieve in a foreign land before a foreign court.
This understanding subsisted until the Reagan administration when the government began seizing foreigners abroad and bringing them to the U.S. for trial. Though these seizures were repellent, the crimes -- violence against individuals or large-scale distribution of dangerous drugs -- were crimes everywhere, and the harm caused by them was palpable.
Until now.
Now Swiss bankers who have followed and respected Swiss banking laws -- which honor the privacy of customers, no matter who they are -- and who have never caused harm to American people or property are on trial in the U.S.
The charges? Violating U.S. banking laws by failing to report suspicious transactions to U.S. banking regulators. And for those "pretended offenses," these bankers have been transported "beyond Seas" for trial.
The Department of Justice is unable to point to any harm caused by these so-called offenses, but federal judges, just as they did in the Reagan era, are accepting the DOJ argument of universal jurisdiction -- that somehow American federal courts can try anyone, no matter where a person is said to have committed a crime, as long as the defendant is physically in the courtroom.
But this violates the Declaration of Independence and Constitution's first principles, and it subjects American bankers and government officials to the same pretended universal jurisdiction of foreign courts. Indeed, a court in Spain has indicted former President George W. Bush and former Defense Secretary Donald Rumsfeld for alleged war crimes committed in Afghanistan.
Why should Bush and Rumsfeld answer to Spain for events that allegedly occurred in Afghanistan? Why should Swiss bankers answer to the U.S. when they didn't violate Swiss law?
This is all about power and the fiction of universal jurisdiction -- a fiction the Framers thought they had buried. It needs to be buried again.
When people who hate you want to be IN YOUR COUNTRY...it’s called INVASION
We should be smart enough to not let them in.
The people in charge, many elected, are not stupid. So, one might wonder what reasons they have to allow people in who hate this country.
Could it be treason?
Very interesting.
bookmarking
Not sure I understand this. It seems simple.
Swiss bankers broke none of their laws but broke ours.
Do we have a legal or economic treaty that specifies in writing that their country must follow our laws or face economic sanctions or legal action/extradition?
If no, then nothing can be done.
If yes, then execute economic sanctions or begin extradition processes.
Did I miss some nuance here?
I’m still trying to figure out how any lawyer can keep a straight face while claiming that Manuel Noriega had any business being imprisoned in the U.S.
No, you didn’t miss a nuance
Nap is omitting facts so he can make rhetorical points. I’m pretty sure the US government hasn’t actually kidnapped Swiss bankers.
I don't think this case involves a clear distinction between Swiss and U.S. laws. I believe it involves one or more Swiss banks that operate in the U.S. and are therefore subject to U.S. bank regulations.
In your second example, if a Swiss banker conducted a transaction with a U.S. bank and did not adhere to U.S. banking law, then they did violate U.S. law and can be tried in absentia. They are not being tried for something that is legal in their own country, they are being tried for not following U.S. law.
If Switzerland does not wish to extradite, then the penalty is that the individual can never set foot on U.S. soil under threat of arrest.
The U.S. Justice Department is not "transporting beyond the seas" the individual, and the individual did not 'do something that is legal in his home country.'
I’ve long wondered about this.
Hm. I don't think I appreciate the way Judge Napolitano frames this. Who specifically did we seize overseas and bring to this country for trial?
I think I got that, but shouldn’t we be taking sanctions against one or more Swiss Banks in this country?
I kind of like Judge Napolitano too, but there is something about the stance he takes on this that makes me unsettled.
I admit there is likely some aspect of it that I don’t see, but on its face it doesn’t seem right.
It seems straightforward to me...if their laws state that money laundering for terrorists who kill Americans is okay, then it seems that America would say “Okay. Your banks and personnel are persona non grata in this country and cannot operate here. (I just use “laundering money as an example...since one person’s laundering is another person’s business in some places)
But if America says “Okay, we know that your bank laws allow you to launder money, and we don’t have a problem allowing branches of your banks here as long as money laundering doesn’t take place, that’s okay with us.
If they were laundering money here and we let them operate here under our laws, then we revoke their license and give them the boot.
If we knew they were laundering and we let them have banks here, and no laundering takes place in these branches, what leg do we have to stand on if we are upset they are laundering money over there?
“In your second example, if a Swiss banker conducted a transaction with a U.S. bank and did not adhere to U.S. banking law, then they did violate U.S. law and can be tried in absentia. They are not being tried for something that is legal in their own country, they are being tried for not following U.S. law.”
Then what happens someday when you’re on a trip to Germany (for instance) and when you land at the airport you get arrested and sent to the UK to face trial for writing things on Free Republic that violate UK hate speech laws?
Will you stand on principle and passively accept your punishment?
This is specifically an Obama thing. He brow beat the swiss banks to break anonymity. The banks agreed to hand over safe guarded info return for prosecutorial immunity for helping Americans evade taxes.
https://www.usatoday.com/story/news/world/2014/01/22/swiss-banking-secrecy/4390231/
What’s the difference if I put my money in a swiss bank account or a safe deposit box or a PO Box ? how do the owners become liable for my stuff?
Maybe I am missing an emanation of a penumbra, but this concept seems very straightforward, and yes, Neapolitano does indeed muddy the issue by not being straightforward.
My expert legal opinion is that foreigners suck, including their backwards, liberty-trampling laws.
My concern is that if the US prosecutes people for doing things that are legal in their countries where they did them then what’s to stop those countries from prosecuting Americans?
Can I be prosecuted in Canada for violating their gun control laws because my AR-15 isn’t legal in Canada?
Should I be fined because my truck won’t pass French emissions regulations?
Should I face penalty in China because I didn’t ask for their permission before I had seven children?
Where does it stop?
These cases are that the US has decided foreign banks must report any accounts held by US citizens.
Most countries caved. The Swiss even caved. Pretty much only the Chinese and Russians told them to pound sand.
This was an Obama propaganda show after Romney was revealed to have offshore accounts.
You raise the very valid point, and it is what I consider a deal breaker for this concept.
I am reminded of the US law that says you can’t go to Thailand and have sex with underage people.
thanks. The first link I gave pre-dates Romney - goes back to 11/2008.
I wonder if Pres. Trump will have the DOJ drop this ?
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