By Matti Mortimore
Courts apply a presumption against extraterritoriality when assessing the geographic scope of federal statutes. Unless Congress has clearly indicated a statute regulates conduct abroad, courts will assume it applies only within the United States. The Supreme Court has vigorously enforced the presumption over the last three decades, stating that it should apply “in all cases.” However, lower courts do not apply the presumption to a narrow class of criminal statutes. They continue to follow the now century old Supreme Court case United States v. Bowman.
In Bowman, four individuals were accused of conspiring to defraud a wholly owned U.S. corporation on a shipment of oil heading for Brazil. All of their conduct occurred outside the United States: upon a U.S. vessel on the high seas and within the port and city of Rio di Janeiro. The defendants argued that because the statute did not specify its geographic scope, it did not apply to their conduct, as all their actions occurred abroad. The District Court agreed, noting that although U.S. vessels upon the high seas are constructively a part of U.S. territory, “[w]hen . . . Congress has intended that its laws shall be operative on the high seas, it has so stated.”
By contrast, the Supreme Court held that the defendants’ actions were regulated by the statute, arguing that a presumption against extraterritoriality “should not be applied to criminal statutes which are, as a class, not logically dependent on their locality . . . but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated.” In other words, statutes that protect the government from direct injuries committable outside its territory should be assumed to apply extraterritorially.
An often-overlooked feature of Bowman is that the only foreign national among the conspirators—a British citizen—was never apprehended or tried in the United States. The Court’s analysis was limited to discerning the statute’s extraterritorial effect over U.S. citizens, and the Court conceded the U.S. may have no jurisdiction over the British subject.
Although most courts ignore nationality in their reading of Bowman, a few have directly repudiated nationality as being relevant to Bowman’s holding. The D.C. Circuit has stated that “the citizenship of the defendants is irrelevant . . . Bowman’s logic did not depend on this fact.” Similarly, the Southern District of New York has argued that Bowman’s analysis rests on two factors, neither having anything to do with nationality. First, the United States has the right to protect itself from harmful conduct wherever it occurs, and secondly, Congress would not enact a statute protecting the U.S. and simultaneously undermine that protective function by limiting the statute’s application to U.S. territory.
However, the claim that nationality is irrelevant to Bowman is inaccurate. The Bowman Court argued that “[t]he three defendants . . . were citizens of the United States,” and were therefore “certainly subject to such laws as it might pass to protect itself and its property.” The government can require its citizens to exercise a greater degree of care and loyalty with regards to its interests than it can of foreign nationals. Indeed, the Supreme Court noted that “[c]learly it is no offense . . . to hold them for this crime against the government to which they owe allegiance.” Foreign citizens normally owe no duties or allegiance to the United States government. Suggesting that foreign citizens should be automatically governed by certain statutes protecting the U.S. government will entail a substantively different set of arguments. In light of these differences, the Court is prompted to add that “the other defendant is a subject of Great Britain . . . [and therefore] it will be time enough to consider what, if any, jurisdiction the District Court below has to punish him when he is brought to trial.”
Almost two decades later, the Supreme Court interpreted Bowman as holding that “a criminal statute dealing with acts that are directly injurious to the government, and are capable of perpetration without regard to particular locality, is to be construed as applicable to citizens of the United States upon the high seas or in a foreign country, though there be no express declaration to that effect.” This is an almost verbatim restatement of the syllabus to Bowman.
Courts should assume statutes prohibiting direct injury to the United States apply extraterritorially to U.S. citizens by default, but must continue to apply a presumption against extraterritoriality when the defendant is a foreign citizen. However, statutes eligible for direct extraterritorial application under Bowman are by their nature strong candidates to rebut the presumption. In practice, Bowman’s limited holding may not aid the escape of foreign defendants from U.S. criminal jurisdiction.
 Beginning in 1991 with EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991), followed most recently by Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), and RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016).
 Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 261 (2010).
 260 U.S. 94 (1922).
 Id. at 95.
 Id. at 96.
 Id. at 96-97.
 United States v. Bowman, 287 F. 588, 592-93 (S.D.N.Y. 1921).
 United States v. Bowman, 260 U.S. 94, 98 (1922).
 Id. at 102-03.
 United States v. Delgado-Garcia, 374 F.3d 1337, 1345-46 (2004); see also United States v. Bin Laden, 92 F. Supp. 2d 189, 194 (S.D.N.Y. 2000) (“[Bowman’s] underlying rationale is not dependent on the nationality of the offender”).
 United States v. Bin Laden, 92 F. Supp. 2d 189, 194 (S.D.N.Y. 2000).
 United States v. Bowman, 260 U.S. 94, 102-03 (1922).
 Compare Restat. 3d of the Foreign Relations Law of the U.S., § 402(2) (3rd 1987) (“[A] state has jurisdiction to prescribe law with respect to…the activities, interests, status, or relations of its nationals outside as well as within its territory”) with § 402(3) (“[A] state has jurisdiction to prescribe law with respect to certain conduct outside its territory by persons not its nationals…”) (emphasis added).
 United States v. Bowman, 260 U.S. 94, 102 (1922) (emphasis added).
 Id. at 102-03 (emphasis added).
 Skiriotes v. Florida, 313 U.S. 69, 73-74 (1941) (emphasis added).
 Cf. United States v. Bowman, 1922 U.S. LEXIS 2344, 1 (“A criminal statute dealing with acts that are directly injurious to the Government and are capable of perpetration without regard to particular locality, and subjecting all who commit them to punishment, is to be construed as applicable to citizens of the United States upon the high seas or in a foreign country, though there be no express declaration to that effect”). Westlaw and hard copy reporters do not contain the syllabus to Bowman, unlike LEXIS Cite, which may help explain how courts missed the relevance of nationality.