However we also have a need for a robust criminal legal approach to address the problem of
transnational repression that can better synthesize the crime and its penalties.
A comprehensive definition introduced through legislation could allow prosecutors to target
perpetrators more directly. For example, in the criminal indictment against the perpetrators who
attempted to kidnap Iranian-American dissident Masih Alinejad, there was a reliance on charges
such as conspiracy to commit bank and wire fraud and conspiracy to commit money laundering.
While the first paragraph of that indictment identified the problem as one of transnational
repression, the lack of a specific provision in the US Code meant the defendants needed to face a
range of other charges.
In that indictment, the four Iran-based defendants were charged in federal court because they
hired a private investigative firm based in the United States and used the US financial system,
which is prohibited to agents of the Islamic Republic. But many other acts leading up to the
kidnapping plot encompassed transnational repression. For example, Islamic Republic of Iran
officials pressured Ms. Alinejad’s family with offers of payment to lure Ms. Alinejad to meet
them in a third country, where she could be more easily abducted. They also imprisoned her
brother on unfounded national-security charges, simply to exert pressure on Ms. Alinejad.
These are all acts of transnational repression intended to target a US person, but they do not fall
neatly within existing US criminal law.
A survey of DOJ indictments against PRC actors engaging in transnational repression reveals a
similar pattern of charging.
A new legal definition could specifically outline what types of acts will constitute harassment
and persecution—including crimes like murder, torture, and kidnapping, as well as cyberattacks
and the spread of disinformation.
As lawmakers consider legislative proposals to criminalize transnational repression,
jurisdictional reach should also be a key consideration. Title 18 of the US Code already provides
jurisdiction outside the United States over a broad range of international crimes such as torture,
genocide, war crimes, recruitment of child soldiers, trafficking, piracy, and terrorism.
But jurisdiction must be expansive enough to protect victims. If a bill only allows for the
exercise of extraterritorial jurisdiction when the perpetrator or victim is a US national, it would
leave an accountability gap. For example, prosecutors would be hindered from bringing a case if
foreign family members of a political dissident are being targeted by a foreign state and that
political dissident has recently arrived in the United States as a refugee or asylum seeker.
Short of a federal criminal statute specifically addressing transnational repression, other
proposals that might help enforce accountability include an extraterritorial federal criminal
statute for extrajudicial killings, which could provide accountability if a US-based dissident’s
family members are killed.
Then there are civil litigation tools that could provide remedies for transnational repression.