The House Judiciary Committee passed a bill yesterday that would make it a federal crime for U.S. residents to discuss or plan activities on foreign soil that, if carried out in the U.S., would violate the Controlled Substances Act (CSA) -- even if the planned activities are legal in the countries where they're carried out. H.R. 313, the "Drug Trafficking Safe Harbor Elimination Act of 2011," is sponsored by Judiciary Committee Chairman Rep. Lamar Smith (R-Texas), and allows prosecutors to bring conspiracy charges against anyone who discusses, plans or advises someone else to engage in any activity that violates the CSA, the massive federal law that prohibits drugs like marijuana and strictly regulates prescription medication.
"Under this bill, if a young couple plans a wedding in Amsterdam, and as part of the wedding, they plan to buy the bridal party some marijuana, they would be subject to prosecution," said Bill Piper, director of national affairs for the Drug Policy Alliance, which advocates for reforming the country's drug laws. "The strange thing is that the purchase of and smoking the marijuana while you're there wouldn't be illegal. But this law would make planning the wedding from the U.S. a federal crime."
The law could also potentially affect academics and medical professionals. For example, a U.S. doctor who works with overseas doctors or government officials on needle exchange programs could be subject to criminal prosecution. A U.S. resident who advises someone in another country on how to grow marijuana or how to run a medical marijuana dispensary would also be in violation of the new law, even if medical marijuana is legal in the country where the recipient of the advice resides. If interpreted broadly enough, a prosecutor could possibly even charge doctors, academics and policymakers from contributing their expertise to additional experiments like the drug decriminalization project Portugal, which has successfully reduced drug crime, addiction and overdose deaths.
The Controlled Substances Act also regulates the distribution of prescription drugs, so something as simple as emailing a friend vacationing in Tijuana some suggestions on where to buy prescription medication over the counter could subject a U.S. resident to criminal prosecution. "It could even be something like advising them where to buy cold medicine overseas that they'd have to show I.D. to get here in the U.S.," Piper says.
Civil libertarian attorney and author Harvey Silverglate says the bill raises several concerns. "Just when you think you can't get any more cynical, a bill like this comes along. I mean, it just sounds like an abomination. First, there's no intuitive reason for an American to think that planning an activity that's perfectly legal in another country would have any effect on America," Silverglate says. "So we're getting further away from the common law tradition that laws should be intuitive, and should include a mens rea component. Second, this is just an act of shameless cultural and legal imperialism. It's just outrageous."
Conspiracy laws in general are problematic when applied to the drug war. They give prosecutors extraordinary discretion to charge minor players, such as girlfriends or young siblings, with the crimes committed by major drug distributors. They're also easier convictions to win, and can allow prosecutors to navigate around restrictions like statutes of limitations, so long as the old offense can be loosely linked to a newer one. The Smith bill would expand those powers. Under the Amsterdam wedding scenario, anyone who participated in the planning of the wedding with knowledge of the planned pot purchase would be guilty of conspiracy, even if their particular role was limited to buying flowers or booking the hotel.
The law is a reaction to a 2007 case in which the 11th Circuit U.S. Court of Appeals threw out the convictions of two men who planned the transfer of cocaine from a Colombian drug cartel to a Saudi prince for distribution in Europe. Though the men planned the transaction from Miami, the court found that because the cocaine never reached the U.S. and was never intended to reach the U.S., the men hadn't committed any crime against the United States.
But the Smith bill goes farther than necessary to address that outcome in that case. "They could have limited this law to prohibiting the planning of activities that are illegal in the countries where they take place," Piper says. "That would have allowed them to convict the guys in the Miami case. There was an amendment proposed to do that and it was voted down on party lines. They intentionally made sure the bill includes activities that are legal in other countries. Which means this is an attempt to apply U.S. law all over the globe."
It wouldn't be the first time. Over the last several years, a number of executives from online gambling companies have been arrested in U.S. airports and charged with felony violations of U.S. gambling, racketeering and money laundering laws, even though the executives were citizens of and the companies were incorporated in countries where online gambling is legal.
Last May, one U.S. citizen saw how the policy can apply in reverse. Joe Gordon, a native of Thailand who has lived in America for 30 years, was arrested while visiting his native country for violating Thailand's lèse-majesté law, which bans criticism of the Thai royal family. Gordon had posted a link on his blog to a biography of Thailand's king that has been banned in Thailand.
In recent years, officials have also attempted to impose U.S. white collar crime policies on other countries as well, such as pressuring Switzerland to soften its privacy laws to help American officials to catch tax cheats and money launderers.
But Silverglate says the Smith bill breaks new ground. "I'm horrified by the pressure on Switzerland, and that's probably the libertarian in me, but at least there you have an argument that there's an American interest at stake. Here, I don't see any interest other than to a desire to impose our moral and cultural preferences on the rest of the world."