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.
First off I reject as totally not constitutional in the U.S. is the many “guilty until proven innocent” financial reporting laws on the federal law books, even as they apply to Americans and American institutions. These are not laws and practices where information is demanded and required to honor a warrant. What has happened is every financial transaction by everyone (above certain amounts depending on the transaction) is presumed to be “guilty until proven innocent” and is required, by law to be reported - so federal agencies can go on fishing expeditions in the data, and knowing nothing about the context can flag anything they want to as suspicious.
Half of this, the foreign banks’ half, would not even exist if the U.S. had a territorial banking system, like most all our major trading partners do, wherein what companies or individuals do not earn in the domestic U.S. economy would not part of what is taxable as far as U.S. taxes (and thus no legal need for U.S. agencies to know).
Not only should the Swiss banks win this legal contest we should (a) move to a territorial tax system and (b) kill this laws that require the automatic reporting of ANY financial information, of any amounts. Yes, file your taxes, but outside of that there should be cause for suspicion and a legal warrant obtained from a court to demand any other report of the peoples private finances.
Will you stand on principle and passively accept your punishment?
The two examples are not equivalent. In the first example a person was doing business with a U.S. bank, subject to U.S. regulations, even if they are not physically in the U.S.
In your example, the Free Republic server is hosted in the United States, giving no jurisdiction whatsoever to the U.K.
“I am reminded of the US law that says you can’t go to Thailand and have sex with underage people.”
That would be different because it’s a US law that applies to US citizens.
I’m okay with US law applying to me wherever I go. I get that.
I am not okay with US law applying to foreigners who have never set foot in the US and who have broken no laws in their native country.
“The two examples are not equivalent. In the first example a person was doing business with a U.S. bank, subject to U.S. regulations, even if they are not physically in the U.S.”
I can understand why some people in the world hate us and our government.
“In your example, the Free Republic server is hosted in the United States, giving no jurisdiction whatsoever to the U.K.”
That sounds all fine and dandy until you’re the one in the dock at the Old Bailey explaining the finer nuances of this principle to the Crown Prosecutor and the Magistrate.
Hmm, except in this case, it is the US laws that seem to be “liberty trampling” and not the other way around. The federal government really has no business demanding to know where we the people choose to put our money.
We get all upset if the government wants to issue identification cards or create a database of firearms owners, but we roll right over if the government wants to track our financial transactions, even though economic liberty is just as essential as any other liberty to a free people.
Legal answer: if the Constitution says you can, yes you can.
Two huge practical problems:
1: If “we” can do it to “them” in “their” country, that’s precedent for “them” to do it to “us” in “our” country.
2: How do you enforce a judgement or sentence?
Manuel Noriega is the primary example I can think of.
Hey, screw you!
No wait: I actually wholly agree with your position.
That was my thought, but wasn’t he under Bush, not Reagan? My first thought was the Achille Lauro terrorists, but we didn’t bring them to the US (though we damn well should have)
Because Noriega facilitated drug traffic from the various Colombian drug cartels in the 1980s through Panama willingly and knowingly which included transshipment of both cocaine hydrochloride and cocaine paste sent to labs in Panama he partnered with and the illegal return of cash to Panama of USA drug proceeds and oddly enough a marijuana smuggling operation to west coast Florida under his direction which resulted in charges there in central district as well as the original southern district Miami charges
Same or more than the Sandies did except given the canal we were willing to go fetch him
Nicaragua just don’t carry as much weight
Noriega really pushed the limit and the election he overthrew ended up being too much for ol busy hands GHWB
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