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Drug Trafficking Safe Harbor Elimination Act of 2011

Floor Speech

Location: Washington, DC

Mr. SMITH of Texas. 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. SMITH of Texas. 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.


Mr. SMITH of Texas. 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.

The SPEAKER pro tempore. The question is on the motion offered by the gentleman from Texas (Mr. Smith) that the House suspend the rules and pass the bill, H.R. 313, as amended.

The question was taken; and (two-thirds being in the affirmative) the rules were suspended and the bill, as amended, was passed.

A motion to reconsider was laid on the table.


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