Drug Trafficking Safe Harbor Elimination Act of 2011

Mr. Speaker, I move to suspend the rules and pass the bill (H.R. 313) to amend the Controlled Substances Act to clarify that persons who enter into a conspiracy within the United States to possess or traffic illegal controlled substances outside the United States, or engage in conduct within the United States to aid or abet drug trafficking outside the United States, may be criminally prosecuted in the United States, and for other purposes, as amended.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous materials on H.R. 313, as amended, currently under consideration.

Mr. Speaker, I yield myself such time as I may consume.

H.R. 313, the Drug Trafficking Safe Harbor Elimination Act of 2011, introduced by the gentleman from California (Mr. Schiff) and me, closes a loophole in Federal law.

Drug traffickers are currently exempt from prosecution in the United States when they conspire to traffic drugs outside of the United States. This bill clarifies Congress' intent that the drug trafficking conspiracy statute should be given extraterritorial application. A Federal criminal case demonstrates how the loophole is being exploited.

In 1998 two individuals conspired with members of a large Colombian drug trafficking organization and a Saudi Arabian prince. The goal of the conspiracy was to traffic 2,000 kilograms of cocaine, worth over $100 million, from South America to Europe. Several meetings among the coconspirators occurred in Miami, Florida, and elsewhere around the world. Specifically while in Miami, they planned in detail to purchase the cocaine in Colombia and ship it to Europe for distribution.

The prince used his royal jet under the cover of diplomatic immunity to transport the cocaine from Venezuela to Paris, France. Although part of the cocaine was seized by law enforcement authorities in France and Spain, about 1,000 kilograms of cocaine were distributed and sold in the Netherlands, Italy, and elsewhere in Europe.

In 2005 two of the conspirators were convicted of drug trafficking and conspiracy in the Federal district court in Florida, and each was sentenced to over 20 years in prison. However, in 2007 the U.S. Court of Appeals for the Eleventh Circuit vacated their convictions. The court reasoned that there is no violation of Federal law when, absent congressional intent, the object of the conspiracy is to possess and distribute controlled substances outside of the United States. This is true even though meetings and negotiations to further the crime occurred on U.S. soil.

Crime is usually a territorial issue, specific to the place where the crime occurs. However, drug trafficking is inherently global in nature now more than ever. In fact, two other provisions of the Controlled Substances Act are already explicitly extraterritorial as they relate to narcoterrorism, terrorism financed through drug trafficking and the foreign manufacture of drugs for importation into the United States. The primary anti-money laundering statute used in drug trafficking cases is also extraterritorial.

Three years ago, Congress enacted the Federal Maritime Drug Law Enforcement Act in response to the increase in use of vessels to traffic drugs around the world. Congress gave this law express extraterritorial effect.

Congress stated ``that trafficking in controlled substances aboard vessels is a serious international problem and is universally condemned. Moreover, such trafficking presents a specific threat to the security and societal well-being of the United States.''

The United States is a signatory to two major international drug- control treaties. Of the 194 countries in the world today, 184 are parties to the 1961 Convention on Narcotic Drugs, which acts as the foundation for most of the world's drug trafficking laws. Drug trafficking is a global problem, universally condemned by law-abiding nations.

Some argue that a person should not be subject to the new conspiracy offense created by this bill unless his conduct is expressly illegal in every country where the drug trafficking occurs. Such a requirement is rarely, if ever, imposed on extraterritorial statutes.

In fact, my colleagues on the other side of the aisle are proponents of a number of extraterritorial laws that contain no requirement that the conduct be illegal in the country where it occurs. Such crimes include genocide, the recruitment or use of child soldiers, or the use of semi-submersible submarines.

These laws are significantly broader than the bill before us today because they do not require any illegal conduct to occur inside the United States. H.R. 313, however, does require that the conspiracy to traffic drugs take place here in the U.S. This legislation is narrowly tailored to reach drug trafficking conspiracies that occur on U.S. soil, but which promote the global distribution of drugs. To require the government to prove that the crime violated foreign law would also render this law essentially ineffective.

Drugs are not simply manufactured in one country and sold in another. Drug shipments make several stops along the way to their final destinations. For instance, cocaine is manufactured and processed in Colombia. It will likely be shipped by ground to Venezuela. It may then be put in a shipping container, transit several Caribbean islands, and then be sent to Africa or Europe. It could be off-loaded in Spain, divided up into smaller, but substantial, shipments and wind up in a dozen European countries. The proceeds from this multi-million-dollar shipment will make their way through the banking systems of a dozen other countries before being delivered to Colombia.

The government should not be required to prove that each of these acts violated each country's laws to prove that the traffickers plotted their conspiracies inside the U.S.

This bill, as amended in the Judiciary Committee with unanimous bipartisan support, excludes conspiracies to possess drugs. This legislation aims to eliminate the safe harbor for drug traffickers and distributors whose primary motive is financial gain. If we do not pass this bill, we continue to invite drug traffickers to plan their schemes within our borders.

The United States should not provide a safe haven for the world's drug traffickers to plot their international drug trafficking operations. This commonsense bill prevents drug traffickers from benefiting from their legal exemption from prosecution, and it tells drug traffickers not to plot their illegal activities in the U.S. If they do, they will be brought to justice.

I do want to thank Mr. Schiff again for sponsoring this legislation with me, and I urge my colleagues to support this bill.

Congress of the United States, House of Representatives,

Committee on Energy and Commerce,

Washington, DC, October 26, 2011.

Hon. Lamar Smith,

Chairman, Committee on the Judiciary, Washington, DC.

Dear Chairman Smith: I am writing concerning H.R. 313, the

``Drug Trafficking Safe Harbor Elimination Act of 2011,''

which was ordered to be reported out of your Committee on

October 6, 2011. I wanted to notify you that the Committee on

Energy and Commerce will forgo action on H.R. 313 so that it

may proceed expeditiously to the House floor for

consideration.

This is being done with the understanding that the

Committee on Energy and Commerce is not waiving any of its

jurisdiction, and the Committee will not in any way be

prejudiced with respect to the appointment of conferees or

its jurisdictional prerogatives on this or similar

legislation.

I would appreciate your response to this letter, confirming

this understanding, and ask that a copy of our exchange of

letters on this matter be included in the Congressional

Record during consideration of H.R. 313 on the House floor.

Sincerely,

Fred Upton,

Chairman.

Mr. Speaker, we are prepared to close; so I will reserve the balance of my time.

Mr. Speaker, let me try again to address some of the concerns of two of my colleagues on the Judiciary Committee. I want to reemphasize that extraterritorial laws do not require that the conduct be illegal in foreign countries.

Congress has enacted numerous laws with extraterritorial effect. Our decision to do so rarely, if ever, hinges on whether the conduct is also criminalized in the foreign country.

Once again, terrorism, drug-related money laundering, genocide, child soldiers--these are all extraterritorial offenses that do not require that the conduct also be against the law in a foreign country.

Moreover, most extraterritorial statutes don't even require that the criminal engage in any illegal conduct inside the United States either. If they engage in terrorism or money laundering or genocide in a foreign country and simply come into the U.S., they can be prosecuted.

The issue of conduct being criminal in a foreign country is not addressed in extraterritorial laws but in extradition treaties.

Also, extradition treaties do not require that conduct be illegal in foreign countries. Before the U.S. can extradite anyone for violation of U.S. law, it must first establish ``dual criminality'' as required by most extradition treaties.

Dual criminality is the principle that a crime in one country has to be a crime in a country extraditing you.

If a drug trafficker engages in a conspiracy here in the U.S., but is later apprehended in a foreign country, the government will have to establish that dual criminality to extradite him back to the U.S.

The extradition laws and treaties among the countries of the world properly provide for this. This principle is rightly excluded from this legislation because it already exists in Federal law.

Finally, Mr. Speaker, I want to also emphasize that the Obama administration clearly supports this legislation. The Department of Justice supported similar legislation in the last Congress, and the Department of Justice stands by its position, as expressed in the 2010 views letters, and supports this legislation tonight.

I urge my colleagues to support this very strong bipartisan piece of legislation, and I yield back the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

I rise in opposition to H.R. 313, a bill that does not make us any safer. In our zealousness to make drug laws as tough as possible, we are now considering an expansion of Federal criminal law to conspiracies to engage in drug activity that occur completely out of the United States.

The reason this bill has been introduced, as the gentleman from Texas has pointed out, is at least partly due to the Eleventh Circuit Court of Appeals decision in 2007 in the Lopez-Vanegas case. The court overturned the conviction of two people who formed an agreement in the United States to transport cocaine from Venezuela to France. The court ruled that current law only applies to conspiracies to distribute drugs in which some of the activity occurs in the United States. Under this bill, some of the conspiracies could be prosecuted even if the drug activity that is the subject of the conspiracy is not illegal where the transaction is going to take place.

For example, the use and the production and the distribution of marijuana for medicinal purposes are all legal in a number of countries, including Canada. Canadians and other citizens involved in legal medical marijuana programs in their countries could face

Federal prosecution if they visit the United States and engage in agreements here in the United States or advance or finance their businesses in Canada. They could be discussing legal transactions in Canada, but the activity is illegal in the United States.

So the agreement in the United States under this bill would constitute an illegal conspiracy, and it would be subject to all of the criminal penalties for drug transactions. In fact, someone would be better off just going to Canada and engaging in the legal drug activity rather than simply making arrangements for the activity by discussing it in the United States.

Unfortunately, the committee failed to adopt an amendment to exclude discussions of activity that may be illegal in the United States but would be legal everyplace that the transaction is to take place.

Now, if one believes that we do have an interest in covering some of these conspiracies under United States law, we should at least confine the law to cover large-scale trafficking. Unfortunately, the committee failed to adopt an amendment to do that, so even small transactions get caught up by this bill, transactions that are legal where they are occurring. And when they get caught up in discussing transactions that are legal where they take place, they're subject to draconian mandatory minimum sentences.

I would note that it is an unfortunate fact that, under our criminal law, we rely too much on mandatory minimums. This bill would subject even more people to them.

Mandatory minimum sentences have been extensively studied, and the conclusions on all of those studies show that the mandatory minimums are unjust; they cause prison overcrowding and are a waste of taxpayers' money. The Federal prison population is currently over 210,000 inmates, nearly a fivefold increase in just a few decades; and that explosion in population is due, to a large extent, to mandatory minimums.

Mandatory minimums do not account for the individual circumstances of the crime or the defendant. The judicial counsel has warned us that, if a mandatory minimum sentence is appropriate, it can be imposed without a mandatory minimum. But with the mandatory minimum, if it violates common sense, it has to be imposed anyway.

In the past few years, numerous high-profile conservative leaders have expressed opposition to mandatory minimum sentencing laws. Some of those conservative expressions came from the Americans for Tax Reform president, Grover Norquist; the American Civil Rights Institute president, Ward Connerly; National Rifle Association president, David Keene; and Justice Fellowship president, Pat Nolan, all of whom have called mandatory sentences into question.

This bill is seemingly an effort to leave no stone unturned in prohibiting any drug transaction from occurring anywhere, even if it doesn't impact the United States. There may be some parts of the bill that are worthwhile. It covers, of course, multimillion-dollar international drug conspiracies, but it also covers small transactions. And to the extent that people will be subject to long mandatory minimums for doing something that is legal, for talking about something that is legal where it is to take place, this bill makes no sense and should be defeated.

I reserve the balance of my time.

I yield such time as he may consume to the gentleman from California (Mr. Schiff).

Mr. Speaker, I yield such time as he may consume to the gentleman from Tennessee (Mr. Cohen).

Mr. Speaker, I yield myself such time as I may consume.

Just finally, we can cover the international drug conspiracies with a reasonably drawn bill. Unfortunately, this bill not only covers the international drug conspiracies, but also, as the gentleman from Tennessee has pointed out, those who are ensnared by doing things that are legal where they occur, but if you agree to do it in the United States, it is all of a sudden a drug conspiracy that'll subject you to all kinds of mandatory minimums.

I would hope that we would defeat this bill, start from scratch and draw a bill that covers what ought to be covered and leaves out what ought not be covered. Agreeing to go to Canada or go to Amsterdam to do something which is legal ought not be a criminal conspiracy in the United States.

With that, Mr. Speaker, I hope we will defeat the bill, and I yield back the balance of my time.

I want to thank the gentleman from Virginia (Mr. Scott) for the time. I also want to thank the gentleman from Texas, the chairman of the Judiciary Committee, for the way he runs his committee. He is an outstanding chairman and a gentleman.

And I appreciate the fact that in this bill, on which the gentleman from Virginia has given much of the argument that I, otherwise, would have made about its failings, that Mr. Smith did accept an amendment to take the possession charges out of it. So possession of drugs is not in it, and that was an improvement.

But, nevertheless, one of the amendments that we did discuss in committee that still bothers me is that the activities could have been entirely legal in the country where they took place. Amsterdam or Holland--Holland is the country which I was thinking of--the Netherlands. And we discussed it in committee. Mr. Scott mentioned medical marijuana being legal in Canada as well as in Israel. But a lot of drugs are legal and transactions in Holland. And if two Americans talked on the phone about going to Holland and buying some marijuana and maybe trading it with somebody else in Holland where it would be legal, it would be a violation of the law in the United States based on this particular statute. And that's what's called an overly broad law, when it captures conduct that it really isn't intended to do.

I don't think--and I hope that the people who voted for this didn't intend for it to criminalize speech when the actions in the country where the act took place were legal. I hope they wouldn't have been thinking that. And on the Judiciary Committee, in particular, we should be very, very circumscribed in what we pass because we're taking people's liberty from them. And ``liberty'' is one of the words inscribed up here, I think, in front of the panel. It is one of the things America holds so dear.

This Thursday, we are going to be celebrating the 220th passage of the Bill of Rights. And the Bill of Rights gives people the freedom of speech and

quite a few freedoms from government oppression and government activities.

To suggest that this is a loophole, I think, is a mistake. I think it was not intended by this Congress to criminalize behavior, particularly behavior that was legal in the country where it took place.

In the situation that the gentleman from Texas describes, where some people got together in Miami to discuss drugs from Colombia that were flown from Venezuela to France and purchased in the Netherlands, Italy, and elsewhere, I don't think that they were in Miami because they thought that was a loophole. I think they were in Miami because they liked Miami. And why wouldn't you? Miami is a great place. They weren't there because it was a loophole. They just happened to be there. And I don't think anybody foresaw that as being illegal conduct. They could have discussed that in Paris or in Caracas or anywhere else. They didn't facilitate the crime, per se. What they did was illegal in all those different countries, and they could have been prosecuted there.

I would submit to you, also, that this Nation and this world almost came to its knees because of derivatives and financial instruments created here in the United States, created here--not just talked about on Wall Street. But it had a global effect because those derivatives affected banks in Europe and all around the world. And as we almost came to our knees because of the criminal activities of people making lots of money with greed, Gekko greed, other people around the world suffered as well economically. But we're not rushing here to criminalize talks between people in Washington and Wall Street and people in Paris about derivatives, about subprime loans, about ways to make money at the expense of poor people and possibly bring the world to its knees economically; that, we're not discussing. But we are discussing the possibility of putting people in jail for going to Amsterdam and talking about buying some marijuana.

Something smells foul, and that's why I oppose the bill.

Mr. Speaker, I thank the gentleman from Virginia for yielding. I am pleased to join with my friend, the distinguished chairman of the Judiciary Committee, in supporting this bipartisan bill. Chairman Smith has been a leader on this issue, and we worked together on it in a prior Congress.

This bill targets a narrow loophole in the Controlled Substances Act which has been exploited by drug traffickers, and the case that particularly brings home this problem is the case that the chairman mentioned.

In 1998 two individuals conspired with Colombian drug cartels to traffic 2,000 kilos of cocaine from South America to Europe. They met in Miami to work out the details of this $100 million transaction. In 2005, following an extensive Federal investigation, they were convicted of drug trafficking and conspiracy and were sentenced to around 24 years in prison, each.

However, in 2007 the 11th Circuit Court of Appeals overturned these convictions. The court found that the way Congress had worded the conspiracy portion of the Controlled Substances Act meant that the conspiracy had to involve trafficking drugs to or from the United States, a condition that was not satisfied in that case. The result of the court's finding is that, in the United States, a drug trafficker can plan and coordinate the shipment of millions of dollars of drugs between our friends and allies yet be beyond the reach of our Nation's laws.

Mr. Speaker, I think this is clearly wrong and not the intent of Congress in passing the Controlled Substances Act. H.R. 313 would close that loophole. In doing so, it doesn't break new ground. Many criminal laws currently on our books have extra territorial reach, including some portions of the Controlled Substances Act itself.

Drug trafficking, by its very nature, is a global problem, and the laws and treaties that fight it must take that into consideration. When we look at the damage the drug cartels have inflicted in countries like Colombia and Mexico, not to mention the devastation their trade causes in the United States, the case for this bill becomes quite clear.

The bill is narrowly crafted to apply only to those who conspire to traffic or distribute narcotics. And with the adoption of the manager's amendment in the Judiciary Committee, it was narrowed further to address concerns that conspiracy charges could apply to only those who sought to possess narcotics overseas. The bill will not open anyone to prosecution for simply discussing the possession of narcotics overseas. It deals only with commerce, not simply speech--the trafficking and distribution of drugs.

Once again, I want to thank Chairman Smith for his leadership on this important bill, and I urge that we pass the measure.