[Congressional Record Volume 157, Number 191 (Tuesday, December 13, 2011)]
[House]
[Pages H8831-H8834]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              {time}  1940
          DRUG TRAFFICKING SAFE HARBOR ELIMINATION ACT OF 2011

  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.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                                H.R. 313

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Drug Trafficking Safe Harbor 
     Elimination Act of 2011''.

     SEC. 2. AMENDMENTS TO THE CONTROLLED SUBSTANCES ACT TO 
                   CLARIFY CONSPIRACIES CONDUCTED WITHIN THE 
                   UNITED STATES MAY BE CRIMINALLY PROSECUTED IN 
                   THE UNITED STATES.

       Section 406 of the Controlled Substances Act (21 U.S.C. 
     846) is amended by--
       (1) inserting ``(a)'' before ``Any''; and
       (2) inserting at the end the following:
       ``(b) Whoever, within the United States, conspires with one 
     or more persons, or aids or abets one or more persons, 
     regardless of where such other persons are located, to engage 
     in conduct at any place outside the United States that would 
     constitute a violation of this title, other than a violation 
     of section 404(a), if committed within the United States, 
     shall be subject to the same penalties that would apply to 
     such conduct if it were to occur within the United States.''.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Texas (Mr. Smith) and the gentleman from Virginia (Mr. Scott) each will 
control 20 minutes.
  The Chair recognizes the gentleman from Texas.


                             General Leave

  Mr. SMITH of Texas. 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.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Texas?
  There was no objection.
  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.

[[Page H8832]]

  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.
                                  ____
                                  
         Congress of the United States, House of Representatives, 
           Committee on the Judiciary,
                                 Washington, DC, October 26, 2011.
     Hon. Fred Upton,
     Chairman, House Committee on Energy and Commerce, Washington, 
         DC.
       Dear Chairman Upton: Thank you for your letter regarding 
     H.R. 313, the ``Drug Trafficking Safe Harbor Elimination Act 
     of 2011,'' which was reported favorably by the Committee on 
     the Judiciary on October 6, 2011. This bill was also referred 
     to the Committee on Energy and Commerce.
       I am most appreciative of your decision to discharge the 
     Committee on Energy and Commerce from consideration of H.R. 
     313 so that it may move expeditiously to the House floor. I 
     agree that while you are waiving formal consideration of the 
     bill, the Committee on Energy and Commerce is in no way 
     waiving its jurisdiction over the subject matter contained in 
     the bill. In addition, if a conference is necessary on this 
     bill, I will support any request to have the Committee on 
     Energy and Commerce represented.
       Finally, I would be pleased to include our exchange of 
     letters in the Congressional Record during floor 
     consideration of this bill.
           Sincerely,
                                                      Lamar Smith,
                                                         Chairman.

  I reserve the balance of my time.
  Mr. SCOTT of Virginia. 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

[[Page H8833]]

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.

                              {time}  1950

  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.
  Mr. SMITH of Texas. Mr. Speaker, we are prepared to close; so I will 
reserve the balance of my time.
  Mr. SCOTT of Virginia. I yield such time as he may consume to the 
gentleman from California (Mr. Schiff).
  Mr. SCHIFF. 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.
  Mr. SCOTT of Virginia. Mr. Speaker, I yield such time as he may 
consume to the gentleman from Tennessee (Mr. Cohen).
  Mr. COHEN. 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

[[Page H8834]]

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.

                              {time}  2000

  Mr. SCOTT of Virginia. 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.
  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.

                          ____________________