When Foreign is Criminal

United States law criminalizes providing material support to foreign terrorist organizations, assaulting foreign officials, accepting campaign contributions from foreign nationals, bribing foreign officials, and transmitting trade secrets to foreign governments, foreign instrumentalities, or foreign agents. These are but a few examples of how foreignness has permeated into a variety of criminal offenses in force today.There is extensive literature on the trend towards expanding the geographic reach of U.S. criminal laws to include extraterritorial conduct. What criminal law literature has failed to discuss in detail is the decision to single out foreignness as a focus of the criminal law somehow separate and distinct from concerns confined to the American homeland. This Article examines how foreignness is reflected in contemporary U.S. criminal law and encourages caution when including a foreign nexus as a substantive element of crimes. It questions when a foreign link increases the threat of harm or the actor's blameworthiness such that it makes sense to include foreignness within the definition of an offense. Even if building a foreign/domestic distinction into a criminal statute is justifiable as central to the very nature of the offense, this Article exposes the challenges of even discerning what is “foreign.”In closing, this Article takes a step back and asks whether creating a polarity between what is domestically American and the rest of the world is a valuable distinction in the criminal law or, in contrast, undermines other values. What do we gain by blatantly specifying “foreign” as an element in defining criminal offenses? And, when we do single out the otherness of “foreign” in criminal statutes, what do we lose?