Federal officials abroad are unprotected — in a world of increasing volatility

Federal law enforcement officers serve our nation in strategic, protective and investigative capacities across the world. Whether through the Diplomatic Security Service stationed at our nation’s embassies or the Department of Homeland Security components infiltrating multinational drug smuggling operations, federal law enforcement officers play critical, dangerous roles abroad. 

For nearly 200 years, these overseas officers were assured that their government would defend them in the face of danger, but in January 2020 the D.C. Circuit Court of Appeals overturned centuries of precedent and left federal officials abroad without access to justice.

The Senate has acted to correct this court-created gap in federal law, and the House must do the same.

In 2011, members of the Los Zetas drug cartel gunned down U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) Special Agents Jaime Zapata and Victor Avila in an attempted carjacking, according to the Department of Justice.

Government evidence concluded that the defendants, Garcia Sota and Quezada Piña, were members of a Los Zetas hit squad on a mission that day to shoot and steal vehicles for cartel operations. They targeted the armored car with diplomatic plates and ambushed the vehicle, killing Zapata.

In 2017, Sota and Piña were sentenced to life prison terms for their actions. Then-Acting Assistant Attorney General Blanco said the HSI special agents were in Mexico “to protect and serve our country when they were ambushed by these ruthless criminals, who will now spend the rest of their lives in a prison cell. This case serves as a reminder that, if you harm a U.S. agent, the U.S. government will pursue you to the ends of the earth to ensure that you are brought to justice.”

But on appeal, the D.C. court disagreed with the government’s promise. The court vacated the conviction, ruling that 18 U.S.C. Section 1114 — the criminal statute providing protection of U.S. officers and employees — does not apply outside the United States.  

In light of this ruling, federal law enforcement officers stationed overseas feel vulnerable and uncertain that the U.S. government will be equipped to come to their defense if they are attacked. Other government officials and civil servants serving abroad also are left vulnerable.

The decision created a circuit split and opened a loophole in federal law, reversing centuries of precedent and a longstanding implication that these laws were intended to apply extraterritorially.

The current interpretation of the law could embolden criminals abroad and weaken the United States’s international presence. It sends a message to federal employees that their government cannot use the full force of the law to defend them in the event of an attack, creating a recruitment, retention and morale problem for some of the most necessary, in demand and dangerous jobs.

In response to the appeals court’s ruling, Sen. John Cornyn (R-Texas) and Rep. Henry Cuellar (D-Texas) have introduced the bipartisan, bicameral Jaime Zapata and Victor Avila Federal Officers and Employees Protection Act (S. 921 and H.R. 2137). The legislation — drafted in coordination with stakeholders, the Department of Homeland Security and the State Department — has received support from stakeholders across the political spectrum and the Biden administration.

Some opposition to the legislation has been framed as a concern about creating new criminal penalties, but the bill simply codifies centuries of precedent and legal understanding. The bill clarifies the extraterritorial application of three statutes under federal law: 18 U.S.C. 111 (“Assaulting, resisting or impeding certain officers or employees”); 18 U.S.C. 115 (“Influencing, impeding, or retaliating against a Federal official by threatening or injuring a family member”); and 18 U.S.C. 1114 (“Protection of officers and employees of the United States”).

For many years, there was no question that these statutes applied overseas, so the legislation is not a new idea; it is a return to common sense.

In May, the bill unanimously passed the Senate. Now the House must act. It has been more than a decade since the murder of Special Agent Zapata and attempted murder of Special Agent Avila, and almost two years since their attackers’ convictions were vacated. More convictions could be if defense attorneys successfully take advantage of the loophole.

With broad, bipartisan support, there is no reason the legislation should languish. The House must act to show federal officials serving their nation in volatile areas around that world that the U.S. government will also answer the call when necessary.

Larry Cosme is national president of the Federal Law Enforcement Officers Association (FLEOA) and a retired senior special agent for Homeland Security Investigations, a division of Immigration and Customs Enforcement (ICE).