The Foreign Corrupt Practices Act only applies to those making bribes. It does not apply to the recipients of bribes. Since the recipient must be a “foreign official” you run into the issue of “diplomatic immunity.”
The concept is that officials should only be held accountable to the laws in their home state. We would not want our officials being courted off to a foreign country for prosecution. Other countries should not expect their officials to be courted off to the U.S. for prosecution. I am sure you have seen an episode of Law & Order or Lethal Weapon2 where a criminal runs free under diplomatic immunity.
It should not surprise you that there is a correlation between parking violations scofflaws under diplomatic immunity and the corruption in their home country. Ray Fishman and Edward Miguel published a paper researching parking violations and diplomatic immunity in New York City. (The Clinton-Schumer Amendment, which gave the New York City permission to tow diplomatic vehicles, revoke their official parking permits, and have 110 percent of the total amount due paid from U.S. government aid to the offending diplomats’ countries of origin, resulted in a substanital decrease in diplomatic parking scofflaws. )
Congress wrote the FCPA that way because it believed “the efforts expended in resolving the diplomatic, jurisdictional, and enforcement difficulties that would arise upon the prosecution of foreign officials was not worth the minimal deterrent value of such prosecutions.” U.S. v. Castle, 925 F.2d 831 (5th Cir. 1991) (per curiam).
I [George W. Bush] have determined that it is in the interests of the United States to take action to restrict the international travel and to suspend the entry into the United States, as immigrants or nonimmigrants, of certain persons who have committed, participated in, or are beneficiaries of corruption in the performance of public functions where that corruption has serious adverse effects on international activity of U.S. businesses, U.S. foreign assistance goals, the security of the United States against transnational crime and terrorism, or the stability of democratic institutions and nations.
See:
- Cornering the Kleptocrats, Part I by Richard Cassin on The FCPA Blog
- Proclamation 7750 Unwrapped by Richard Cassin on The FCPA Blog
- Proclamation 7750 (.pdf) – Text of the order
- Privacy hedge on visa bans hides political sins published in The Standard
- U.S. Strategy to Internationalize Efforts Against Kleptocracy: Combating High-Level Public Corruption, Denying Safe Haven, and Recovering Assets (.pdf) – Fact Sheet from the Bureau for International Narcotics and Law Enforcement Affairs
- diplomatic immunity – wikipedia
- Cultures of Corruption: Evidence from Diplomatic Parking Tickets (.pdf) by Ray Fishman and Edward Miguel (2006)
- Vienna Convention on Diplomatic Relations of 1961
- Strategies to Fight Kleptocracy (.pdf) by Loretta Graziano Breuning
- The Fight Against Kleptocracy (.pdf) by Elizabeth G. Verville, Deputy Assistant Secretary of State for Crime, INL
- Difficulties and Challenges in Strengthening Cooperation in the Denial of Safe Haven to Corrupt Officials and Those Who Corrupt Them (.pdf) by Kathleen M Hamann of Foley Hoag LLP
