U.S. Prosecutors Can Charge Foreign Officials With Bribery Under New Provision
Part of the annual defense bill allows the Justice Department to bring criminal charges against foreign officials who demand or accept a bribe from a U.S. citizen or company, or within a U.S. jurisdiction
U.S. authorities can now prosecute foreign officials who demand or accept bribes from Americans trying to secure business, new legal firepower granted in the recently signed annual defense legislation.
For the first time, a provision of the National Defense Authorization Act has made it a crime for a foreign official to ask for or take a bribe from an American person, a U.S. company or within a U.S. jurisdiction.
President Biden signed the defense bill into law on Dec. 22, after Congress earlier in the month voted to pass the sweeping annual legislation that designates top U.S. military priorities. The NDAA increases the national security budget roughly 3% to $886 billion from the previous year’s $858 billion.
The provision, known as the Foreign Extortion Prevention Act, broadens the scope and reach of U.S. antibribery laws in a way policy supporters say will fight corruption, which the Biden administration has said is one of its top national security priorities.
Advocates for the law say it complements the Foreign Corrupt Practices Act, a longstanding U.S. antibribery law that prohibits the paying of bribes to foreign officials to win or keep business. Under FEPA, violators would be fined no more than $250,000 or three times the value of the bribe; imprisoned for no more than 15 years, or both.
The new provision comes after years of campaigning by a bipartisan coalition of anticorruption groups and government watchdogs, as well as the U.S. Chamber of Commerce.
“Without this, the U.S. legal arsenal for combating international corruption was incomplete,” said Tom Firestone, a partner at law firm Squire Patton Boggs who specializes in white-collar crime, noting that the FCPA only covers the supply side of paying bribes, while FEPA addresses the demand side.
“If it’s enforced effectively, it would hopefully protect U.S. companies operating abroad so they won’t be subject to these demands,” he said.
Transparency International U.S., an anticorruption advocacy group that helped craft the legislation and led the campaign for it, said FEPA could root out foreign corruption at its sources.
“This, without question, is the most consequential anti-foreign-bribery law passed in almost 50 years,” said Scott Greytak, director of advocacy for Transparency International U.S.
Supporters are optimistic enforcement won’t be a problem, as the Justice Department for years has brought charges against foreign officials outside U.S. borders over bribery, but used different laws to do so, for instance, money-laundering or wire fraud statutes.
Under the new provision, foreign officials charged with taking bribes can be arrested when they enter U.S. territory; if they live in a country with an extradition treaty with the U.S., or if they travel to a third country that has an extradition treaty with the U.S., according to Greytak.
Even if some foreign officials are beyond the reach of U.S. marshals, Firestone, a former federal prosecutor, said that isn’t likely to deter prosecution of these cases, as the Justice Department recognizes the value of identifying offenders and holding them responsible.
“The fact they can’t be brought to trial doesn’t mean the U.S. DOJ won’t charge them. That means they can still be arrested if they travel, or they become a prisoner in their own country because they are afraid to travel,” he said.