# ' Jurisdiction Advisory Committee

Section 1 15 1, Public Law 104- 106
Report to The Secretary of Defense The Attorney General The Congress of the LJnited States

 DEPARTMENT OF DEFENSE
OFFICE OF GENERAL COUNSEL
   1600 DEFENSE PENTAGON
  WASHINGTON, DC 20301 - 1  600

April 18, 1997

The Honorable Janet Reno
Attorney General of the United States
Washington, D.C. 20530

Dear Attorney General Reno:

     We are pleased to submit the attached report of the Overseas
Jurisdiction Advisory Committee. This committee, which was
jointly appointed by you and Secretary of Defense Perry pursuant
to section 1151 of the National Defense Authorization Act for
Fiscal Year 1996, has reviewed and made recommendations
concerning criminal jurisdiction over civilians accompanying the
armed forces outside the United States.

     This report reflects a year of work. Ably assisted by a
working group of military lawyers, we have thoroughly researched
the relevant legal issues and gathered a large body of data to
support our findings and recommendations. The product of our
efforts is a report that we believe will guide the Congress to
the best resolution of this difficult and longstanding issue.

Very Respectfully,

h % c ? d L
John S. Cooke

L '
                       Brigadier General, JA, U.S. Army
                              Advisory Committee Chair
                                                + m L
                                                       lorence W. Madden

$ Senior Attorney
                                                      Deputy General Counsel
   Department of Justice
                                                      Department of the Air Force
  e&
  Robert E. Reed
   cnlonel , 4::9. Air Force

d

Richard B. Schiff / /
Captain, JAGC, U.S. Navy
C'&
         g 7 2
Charles E. Trant
Colonel, JA, U.S. Army

David f Stewart
Assist nt Legal Adviser
Department of State

## Report Of The Advisory Committee On Criminal Law Jurisdiction Over Civilians Accompanying The Armed Forces In Time Of *Armed* Conflict (The "Overseas Jurisdiction Advisory **Committee"** ) T A B L E  Of Contents

Executive Summary ........
iv
I.
Introduction ........
1
11.
Background ........
4
A. Article 2(a) **(111,** UCMJ, and the Supreme Court ..... 5
B. Article 2(a) **(101,** UCMJ, and the Court of Military
Appeals ........
6
C. Extraterritorial Effect of Federal Criminal Law ... 7
D. The IIJurisdictional Gaps" ........
9
E. Past Legislative Proposals ........
9
111.
Committee Activities ........
11
IV .
Historical Experiences and Current Practices Concerning
Civilians Accompanying the Forces in the Field ........ 12
A. Pre-UCMJ Experience ........
12 .
B. Vietnam ........
14
C. Recent Experience and Practice ........
15
Employees ........
15
1. Use, Function, and Training of Civilian
;!.
Gr-owLli i n  the Use of **DoD** Civilian and
..
. \ . A L L
L r * >  \ ..L
'Illk.; ..,
..
3 . CivilLan Family Members. Employees. and
Contractors Accompanying the Forces Overseas .. 23
.
4 . Disciplinary Tools Currently Available ........ 27
D . Experiences of O t h e r  U.S. Government Agencies and
Foreign Governments ........
29
1 .
U.S. Department of Justice and Department
of State ........
2 9
2 . United Kingdom and Canada ........
30
Committee Findings ........
3 3
V .
A .
Contingency Operations ........
33
B .
DoD Civilian Family Members Stationed Overseas .... 39
Alternatives to Criminal Jurisdiction ........ 4 4
C .
1 . Available Remedies ........
44
2 . Adequacy of Remedies ........
4 5
D .
The Need for Legislation ........
4 6
1 . Contingency Operations ........
4 6
2 . Peacetime Settings ........
48
.
Committee Recommendations ........
4 9
VI .
A . Court-Martial Jurisdiction: Contingency
Operations ........
5 0
1 . Constitutionality of New Article 2(a) **(13)** ..... 54 2 . Policy Concerns ........
57
. . .  I . . . . . . . .  ........ ....
c
r,Q
Conclusion ........
64
VII
I

1. Section 1151, National Defense Authorization Act for Fiscal
Year 1996, Pub. L. No. 104-106, 110 Stat. 186 (1996).
2. Memorandum from Dept. of Defense General Counsel to Members,
Overseas **Jurisdiction Advisory** Comm.
(Charter), May 14, 1996.
3 .
Draft bill.

## Report Of The Adviscry Committee On Criminal Law Jurisdiction Over Civilians Accompanying The Armed Forces In Time Of Armed Conflict (The "Overseas Jurisdiction Advisory Committee") Executive Summary

The Overseas Jurisdiction Advisory Committee was appointed by the Secretary of Defense and the Attorney General, pursuant to Section 1151, National Defense Authorization Act for Fiscal Year
1996, Pub. L. No. 104-106, 110 Stat. 186 **(1996).** The committee's duties were to: review historical experiences and current practices concerning the use, training, discipline, and functions of civilians accompanying the Armed Forces in the field; develop specific recommendations concerning the advisability and feasibility of establishing United States criminal jurisdiction over civilians accompanying the armed forces in the field outside the United States during time of armed conflict not involving a war declared by Congress; and develop other recommendations as the committee considered appropriate.

The committee conducted extensive research and gathered information and opinions from within the Department of Defense, including each Service and each of the Combatant Commands with overseas areas of responsibility. The committee also gathered information from the Department of Justice, the Department of State, and from legal authorities in the United Kingdom and Canada.

The committee found that two jurisdictional "gaps" currently exist with respect to civilians accompanying the armed forces overseas.

                                                                                               1
                                                                                                      a * -  . t
                                                                                                                1 -
                                                                                                                                                    -..
4 .
                                     , & , *
                                                                                                                                                     ....

With increasing

     First, civilians accompanying the armed forces in the field
d u r i l l g  military operations overseas, not involving a war declared
by Consress, are not subject to the criminal jurisdiction of the
....... ...... ....
                        . . . . . . . .
                                                ........
committee found that this gap carries the substantial potential
for serious damage to the success of military operations and the
safety of United States or allied forces.
reliance on DoD civilian employees and contractors to carry out
mission essential functions as an integrated part of military

operations, it is essential that the United States have the authority to deter offenses, and, if necessary, punish civilians who commit crimes in such an environment. Without such authority, the unsatisfactory alternatives are trial before a foreign tribunal, if any is available, or no criminal punishment.

To close this gap, the committee recommends extending courtmartial jurisdiction to cover civilians accompanying the armed forces during contingency operations so designated by the Secretary of Defense, under 10 U . S . C .  section 101 (a) (13) **(A)** , in places outside the United States specified by the Secretary of Defense.

The committee recognizes that extending court-martial jurisdiction to civilians is, for both constitutional and practical reasons, a serious step. Nevertheless, to ensure the success of future military operations, the comfiittee believes that this step is necessary. The committee's proposal is narrowly tailored. Not ail military operations will trigger this court-martial jurisdiction. Specific action by the Secretary of Defense is required, and such action will specify geographic limits outside the United States for the application of courtmartial jurisdiction. This mechanism will have the additional virtue of making clear exactly when, and also where, civilians may be subject to court-martial jurisdiction.

The committee also addressed a second jurisdictional gap.

It is well known that civilians accompanying the armed forces overseas are not subject to the criminal jurisdiction of the United States, except those criminal statutes that have extraterritorial application. Thus, civilian employees of DoD
and the Services, civilian contractors, and the family members of such civilians and of servicemembers are not subject to United States jurisdiction for most offenses overseas. While such civilians may be subject to the criminal jurisdiction of the host country, under most Status of Forces Agreements, often the host nation is not interested in prosecuting offenses by United States citizens. As a result, such civilians can and do commit serious offenses and face no more than minor administrative sanctions available to overseas commanders. It is not unusual for persons suspected of serious crimes, such as rape or child abuse, to remain in an overseas command or to return to communities in the United States without having been subjected to criminal prosecution.

To close this gap, the committee recommends extending the jurisdiction of federal (Article **111)** courts to try such offenses committed by persons accompanying the armed forces overseas.

This would be done by making punishable offenses committed by a civilian accompanying the armed forces in a foreign country if the act would be an offense punishable by imprisonment for more than one year if it had been committed within the special maritime and territorial jurisdiction of the United States (18
U.S.C. section 7).

Because of the substantial logistical problems associated with prosecuting such cases, the committee envisions that this authority would be used sparingly. Nevertheless, it should be available to address serious crimes by persons accompanying the armed forces overseas.

The committee's recommendations are independent of each Each is necessary to close a significant jurisdictional Although the other.

gap in United States criminal jurisdiction.

committee's second proposal would also partially close the first jurisdictional gap, it would, for reasons addressed more fully in the report, not entirely or adequately address the problems associated with crimes in contingency operations.

The committee believes that failure to close these gaps carries the high likelihood not only of injustice in individual cases and danger to the public safety, but of severe damage to military operations and to the foreign policy and national security interests of the United States.

favorable consideration by Congress.

The committee urges

# Report Of The Advisory Committee On Criminal Law Jurisdiction Over Crvilulns Accompanying The *Armed* Forces In Time Of *Arked* Conflict (Tee "Overseas Jurisdiction Advisory Committee")

## I. Introduction

In section 1151 of the National Defense Authorization Act for Fiscal Year **1996,l** Congress required the Secretary of Defense and the Attorney General to appoint jointly an advisory Committee. This advisory committee was to "review and make recommendations concerning the appropriate forum for criminal jurisdiction over civilians accompanying the Armed Forces in the field outside the United States in time of armed conflict.'12 The committee was to have at least five members and include experts in military law, international law, and federal civilian criminal law, with diverse experiences in the prosecution and defense of criminal cases.) A copy of the enabling statute is Appendix 1.

The Secretary of Defense and the Attorney General appointed the following as voting members of the "Overseas Jurisdiction Advisory Committee" :
Brigadier General **John** S. Cooke, U.S. **Army** (Chair), Chief Judge, **U . S .**  Army Court of Criminal Appeals, and Commander, U.S.

Army Legal Services Agency;
John F. De Pue, Senior Attorney, Terrorism and Violent Crime Section, Criminal Division, U.S. Department of Justice;
Florence W. **Madden,** Deputy General Counsel (Military Affairs), Department of the Air Force;
Colonel **Robert** E. Reed, U.S. Air Force, Chief, Military Justice Division, Office of The Judge Advocate General, U.S. Air Force ;
Captain **Richard** B. Schiff, U.S. Navy, Assistant Judge Advocate General for Civil Law, U.S. Navy;
David P. Stewart, Assistant Legal Adviser, Office of the Legal Adviser, **U . S .**  Department of State; and Colonel Charles E. T r a n t ,  U.S. Army, Chief, Criminal Law Division, Office of The Judge Advocate General, U . S .  Army.

The Secretary of Defense and the Attorney General examined t h e
credentials of the above members and determined the committee membership met the statutory requirements.

With the concurrence of the Attorney General, the General Counsel of the Department of Defense **(DoD)** issued a charter to the committee. A copy of the charter is Appendix 2. The General Counsel also supported the committee's administrative requirements by assigning an officer as an executive secretary.

The executive secretary supervised a working group of three judge advocates.4
Under its enabling statute, the committee's first duty is to review the historical experiences and current practices of the Services concerning the use, training, discipline, and functions of civilians accompanying the armed forces in the field.5 Based on this review, the committee must develop specific recommendations concerning the advisability and feasibility of establishing United States criminal law jurisdiction over such persons during armed conflict.6 The statute requires the committee to consider at least three options, alone or in combination: establish court-martial jurisdiction, extend Article **I11** court jurisdiction, and establish an Article I court for this purpose.' The statute also permits the committee to develop other recommendations as it deem appropriate. *
In her charter to the committee, the **DoD** General Counsel provided additional guidance. The General Counsel directed the committee to consider the proper balance among the rights of victims and defendants, the needs of the armed forces, and U.S.

relations with host nations. She then further instructed as follows:
Of particular importance is whether any extension of criminal jurisdiction is necessary. Initially, you should decide if there is a problem and, if so, what it is. If you identify a problem, you shculd consider whether criminal jurisdiction is the way to soive it. You should also consider alternatives to the criminal jurisdiction solution. Only if and to the extent you find a problem, and determine criminal jurisdiction is the best solution, should you then consider the proper means for extending jurisdiction.

      . , . I , . ' ,  I .  ' I * '
  ' Id. "Article I11 courtii
                                         and "Article I court" refer to articles of the
Constitution. See U.S. CONST., arts. I, 111. Article I11 establishes the
Supreme court and "such other inferior courts as the Congress may from time to
time ordain aad establish." U.S. CONST., art. 111,  1. Although Congress may
create an "Article 111 court, that court's general jurisdiction is
established by the Constitution. See id. 8 2. Congress creates so-called
"Article I courts" for areas of specialized jurisdiction. See U.S. CONST.,

source of power i s  statutory.

## 0 * Pub. L. No. 104-106, I Llsl(C) ( 3 ) . 11. Background

Criminal acts by civilians accompanying the armed forces, and the power of military commanders to deal with such crime are not new issues in American jurispr~dence.~
Civilians accompanying the armed forces "in the field" have been subject to court-martial jurisdiction since the Revolutionary War. With the Cold War, for the first time large numbers of American troops and, therefore, civilians accompanying them (dependents and employees) were stationed overseas in peacetime. The Uniform Code of Military Justice (UCMJ or "Code")
provided for court-martial jurisdiction over such civilians.

Article 2(a) **(10)** and 2(a) **(11)** of the Code provide:
(a) The following persons are subject to
[the UCMJ] : - .  .

(10) In time of war, persons serving with or accompanying an armed force in the field.

-
(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.1
With these provisions, Congress comprehensively addressed court-martial jurisdiction over civilians accompanying the forces, both in war and in peace. By 1970, decisions of the United States Supreme Court and the United States Court of Military Appeals had severely restricted the application of Article 2 (a)
(10) and Article 2 (a) **(111,** creating jurisdictional gaps in the ability of United States law to address crimes committed by civilians accompa'.Iying the forces overseas.

first controversy focused on Axticle 2 (a) **(11)** .

The

## A. A R T I C L E  2 ( A )  (Ll), Ucmj, And The Supreme Court

Passage of Article 2(a) **(111,** UCMJ, is a descendant of the so-called
"Crowder Article," named after Major General Enoch Crowder, former Judge Advocate General of the Army, who helped secure a similar addition to the Articles of War in 1916.11
the article was based on two assumptions: **(1)** that the language in the Fifth Aiendment to the U.S. Constitution mandating trial by jury "except in cases arising in the land or naval forces"'*
meant that if an offense was committed by a civilian accompanying the forces, the jury right did not apply; and **(2)** that constitutional rights did not follow American citizens when they traveled outside the United States.I3
-.

The second assumption was Based on these assumptions, Congress purported to extend court-martial jurisdiction to cover civilians accompanying the forces at all times -- peace or war.

rejected in a series of Supreme Court cases decided before adoption of the UCMJ.14 The first assumption was laid to rest in
1957, along with the peacetime application of Article 2(a) **(11)** of the Code, by a series of Supreme Court cases beginning with R e i d
v. Covert.

Reid v. *CovertlS* and a companion ease (Kinsella v. Krueger16)
both involved court-martial convictions of civilian wives who had killed their gemicemember husbands while stationed overseas.

The Supreme Court's holdings in these, and a series of successor cases,I7 struck down the peacetime application of Article
2(a) **(11)** and established the principle that the Constitution does not allow trial of civilians by court-martial in peacetime.

## B. Article 2 ( A )  (Lo), Ucmj, And **The** Court Of Military Appeals

The Supreme Court's Reid v. *Covert* line of cases was limited LO Article 2(a) **(111,** and did not address Article 2 (a)
(10) of the Code, which subjects to court-martial jurisdiction those civilians serving with armed forces in the field I'[i]n time of war." Article 2(a) **(10)** was tested before the Court of Military Appeals during the Vietnam conflict by the case of United S t a t e s
v. Averette."
[il n time In *Averette,* an Army civilian employee serving in Vietnam was convicted of attempted larceny by a court-martial. The U.S.

Court of Military Appeals1g overturned the conviction, holding, as a matter of statutory construction, that the military had no jurisdiction under Article 2 (a)
(10) because the phrase of war" - -  as used in that article -- meant a congressionally declared war. As the Vietnam Conflict was not such a declared

## .- I S 354 U.S. 1 (1957).

Decided on rehearing along with Reid v. Covert.

For the Court's prior opinion in **Kinsella** v. *Krueger* (reaching a different result), *see* 351 U.S. 470
(1956).

'.

" R e i d  *v .*  Covert involved premeditated murder, a potentially capital crime under the Code. *S e e*  Art. **118,** UCMJ, 10 U.S.C.  **918.** The Courtls opinions left open the question of whether Article 2(a)(11) could be constitutionally applied in peacetime to noncapital crimes. This question was resolved in the negative three years later. **M c E l r o y**  v. *United S t a t e s*  ex rel. *Guagliardo,* 361
U.S. 281 **(1960);** Kinsella v. *U n i t e d  S t a t e s*  ex rel. *S i n g l e t o n ,*  361 U.S. 234
(19GO).

Is 19 U.S.C.M.A. **363,** 41 C.M.R.

363 (1970).

war, the court held that Article 2(a) **(10)** would not support court-martial jurisdiction over the civilian employee.

While the R e i d  v. *C o v e r t*  line of cases and *A v e r e t t e*  answered many questions about the ability of military law to reach civilians accompanying U.S. forces overseas, these opinions did not address all pertinent issues. In particular, they left one issue open that has become a focal point of this committee's research. That issue is whether Congress may constitutionally extend court-martial jurisdiction over civilians serving with the forces in the field during military operations that, while not part of a declared war, do not occur in tlpeacetime,''
either.

## C. Extraterritorial Effect Of Federal Criminal Law

Aside from crime by civilians serving with U.S. forces during military operations, another area of concern has been criminal acts by civilians accompanying U.S. forces overseas in peacetime conditions. Federal law does not address this problem adequately because most federal criminal statutes do not apply unless the crime occurs in U.S. territory or within the special maritime and territorial jurisdiction of the United States.20
The report noted that Tn a 1979 report to Conqress,zl the General Accounting u & L ~ c ~
~
~
S
S
C
S
S
~
~

L t l c  SLaLUs UL !ItiscurlducL atfiuIAy G i V l l l a i l Y
accompanying the armed forces overseas in the twenty-two years after R e i d  v. C o v e r t .
The GAO Report concluded there are two potentially serious consequences of a lack of criminal jurisdiction over these civilians: **(1)** in cases where the host country assumes jurisdiction, American citizens could be subjected to judicial systems which might not provide the rights, guarantees and safeguards available under the U.S. Constitution, and to trials in a foreign language; and (2) in cases where the host cougtry declines to exercise jurisdiction,'persons committing serious crimes might go free.

this potential problem could be aggravated by the **U . S .**  policy of General Accounting Office, *Some Criminal* Offenses Committed Overseas by maximizing jurisdiction,22 that is, seeking waiver of jurisdiction from host countries in all cases - -  even when the U.S. may be powerless to act.

The 1979 GAO Report is the only systematic effort to date to quantify the problem of misconduct among civilians accompanying the forces overseas. According to the Report, 343,000 civilians accompanied the forces abroad in a 12-month period ending in November, 1977.23 This number included civilian employees of the forces, their dependents, and dependents of servicemembers.

During this time, in cases where host countries had primary right of jurisdiction under applicable Status of Forces Agreements, host countries waived their primary right of jurisdiction in favor of United States jurisdiction in 59 "serious" cases and 54
"less serious" ones. "Serious" cases were defined as murder
(none released) , rape (one released), manslaughter, negligent homicide (non? released), arson (one released), robbery and related offenses (54 released) , burglary and related offenses
(one released) , forgery and related offenses (none released), and aggravated assault (two released) . "Less serious" crimes were simple assault, drug abuse, contraband, disorderly conduct, drunkenness, and breach of peace. In contrast, host countries did not waive their primary right of jurisdiction in 200 serious cases. Although the Report recommended that each military department maintain more comprehensive records on civilian offenses overseas, this has not been done.

The GAO made the following additional observations in the
1979 report: the inability to deal with criminal activity among DoD civilians24 accompanying the armed forces overseas, except by civilian dependents of military members.

means of relatively inadequate administrative sanctions, has several potential consequences - -  **(1)** lack of deterrence, (2)
morale problems among military members who receive more severe punishments than civilians for similar crimes, (3)a negative perception by host countries about our ability to deal with crime committed by our citizens, and **(4)** a low priority among military investigators to investigations in which the suspects are DoD
civilians. In addition to its recommendation that the services keep better records of civilian misconduct, the **GAO** called on Congress to enact legislation extending criminal jurisdiction over U.S. citizen civilian employees and dependents accompanying the forces overseas.

## D . The 88Jurisdictional Gapsn

The R e i d  v. *Covert* line of cases, *Averette,* and the GAO
study reveal two distinct Itjurisdictional **gapst1** in which United States criminal law does not adequately address crimes by civilians accompanying the armed forces in foreign countries.

The first 'IgapV1
is the unavailability of military law to deter and punish criminal acts by **DoD** civilian employees and contractors, who serve with and directly support military operations in the field. The second is the failure of federal criminal law to comprehensively-apply to crimes by **DoD** civilian employees, contractors, and dependents who accompany **U . S .**  forces overseas in peacetime.

The existence of these "jurisdictional gaps" is not news to the Congress or to other U.S. Government entities. Indeed, this issue has been the subject of many proposed legislative l8fixes.lt

## E. Past Legislative Proposals.

Since 1965, there have been many proposals before Congress attempting to resolve the problem of lack of jurisdiction over civilians accompanying the Some of these have reached the hearing stage, but none have become law. Generally, the proposals have taken the approach of making crimes under the U.S.

C U ~ C  C X L L ~ L C L L ~ L U L ~ ~
i r i  **aLLecL,** that is, making crimes committed outside U.S. territory prosecutable in U.S. courts. Some of the proposals recommended amending title 10 ("Armed Forces). Others focused on title 18 ("Federal Jurisdiction"). A brief sampling of these propsals follows:
S. 2007, introduced in **1967,26** would have made some civilians accompanying the forces overseas subject to some of the substantive provisions of the UCMJ, which has extraterritorial application. The bill applied to Itany citizen, national, or other person owing allegiance to the United States ... serving with, employed by, or accompanying the armed forces outside the United States.

'I2'
The Criminal Justice Reform Act of **1975"** would have applied to all United States citizens overseas, if they were not subject to the "general jurisdiction of the United States" and if their crime fell within one of nine categories. These categories included violent crimes against public servants of the United States performing official duties abroad, treason, espionage, or release of classified information, fraud against the United States, manufacture or distribution of drugs for importation into the United States, and offenses committed by or against United States nationals (except those committed by service members, who are subject to the UCMJ)
. 2 9
-
H.R. **255,30** considered by the House Judiciary Committee in
1986, would have expanded the special maritime and territorial jurisdiction of the United States31 to cover nationals or citizens of the United States "serving with, employed by, or

## E See 18 U.S.C. 8 7.

accompanying the Armed Forces outside the United Those crimes listed in title 18, which by their terms have effect only within the special maritime and territorial jurisdiction, would have applied to some civilian offenders accompanying the forces abroad who committed offenses while engaged in performance of official duties, within a U . S .  military installation abroad or the area of operations of a unit in the field, or against a United States service member or another civilian accompanying the forces.

33
The Department of Justice currently has formulated a legislative proposal which would add chapter 212 (sections 3261-
3264) to title 18, U.S. Code. This proposal contemplates return of defendants for trial in federal court in the United States.

Persons covered would include those formerly serving with the armed forces outside the U.S. and persons presently accompanying or employed by the armed forces outside U.S. territory. Such persons would be subject to the federal criminal law whenever they engaged in conduct which would be an offense punishable by imprisonment for over a year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States.

became a focus of the committee's review.

This Justice Department proposal eventually

## 111. Committee Activities -.

The committee, with the assistance of its working group, conducted extensive research. This involved gathering information and recommendations, as well as legal research. All committee resource materials and correspondence are maintained in the Office of the General Counsel, Department of Defense.

The issue of criminal law jurisdiction over civilians accompanying the forces overseas has been a subject of many academic articles34 and government studies.3s As discussed above, The committee there also have been many legislative proposals.

reviewed the articles, studies, and each legislative proposal along with associated commentary.

Included were The committee requested information and recommendations from the Armed Services and each Combatant Command that has a geographic responsibility outside **U.S.** territory.

requests for information on the numbers of **DoD** civilians
(dependents, employees, and contractor employees) presentiy deployed and cases of misconduct by such persons.

The committee then contacted the Justice Department's That office The working group analyzed the United States Code for federal criminal statutes that already had effect outside U.S.

territory.

Executive Office of United States Attorneys.

surveyed all United States Attorneys for their experiences and recommendations concerning overseas misconduct by civilians accompanying the armed forces.

Finally, the committee requested information from the military legal establishments of the United Kingdom and Canada.

Both countries have experience with trying by court-martial civilians who are accused of offenses while accompanying their forces overseas. Each responded to the committee with extensive information on the laws and procedures governing the exercise of that jurisdiction.

## Iv. Historical Experiences Aed Current Practices Concerning Civilians .9Ccompanying The Armed Forces In The Field A. Pre-Ucmj Experience

Civilians have served with or otherwise accompanied American forces in the field or on board ship since the'beginning of the United States, but not in significant numbers until the Civil War.36 Under the Articles of War then existing, civilians accompanying U.S. armies were subject to court-martial jurisdiction only during war.37 For the Sea Senrices, certain of the Articles for the Government of the Navy applied to civilians aboard U.S. vessels, even in peacetime.38 In the last century, the Supreme Court upheld the jurisdiction of a naval courtmartial over a civilian serving on board ship.39 As for civilians not serving with or accompanying forces, the Supreme Court has long held that military tribunals could not exercise jurisdiction over-civilians in the United States, even in wartime, where the civil courts were still functioning.40
The committee found no reported During World Wars I and 11, both of which were declared wars, civilians accompanying the armed forces in the field were tried by courts-martial.41
courts-martial of civilians accompanying the armed forces during other than a period of declared war in the twentieth century before the UCMJ was enacted.42 The committee found no reported cases of exercise of court-martial jurisdiction under Article
2 ( a )  **(10)** of the newly-enacted UCMJ during the Korean War.

" *Id.* at 98-102.

See Becker at 280-81.

jY Ex Parte Reed, *100* U.S. 13 (1879).

 " See, e . g . ,  Hines v. Mikell, 259 F .  28 (4th Cir. 1919); In re Berue, 54
F.Supp. 2 5 2  (S.D. Ohio 1 9 4 4 ) ;
                       McCune v. Kilpatrick, 53 F.Supp. 8 0  (E.D. Va.
:362 .
      Ex Parre Gerlach, 247 F. 616 (S.D.N.Y. 1917).

although a state of war with Germany still technically

     cf. Madsen v. Kinsella, 343 U.S. 341 (1952) (upholding jurisdiction of
military commission to t r y  a spouse accompanying a servicemember in occupied
Germany in 1950;
existed, hostilities were officially declared terminated in 1946).
                                                                                        I

## B. Vietnam

In his seminal text on legal issues arising durir,g the Vietnam War, Major General George S. Prugh stated that sf[e]fforts to subject U.S. civilians [in Vietnam] to military discipline were generally not effective."43 This inability to discipline civilians "became a cause for major concern to the U . S .  command
[United States Military Assistance Command, Vietnam (MAW) ] .

1144
Most of these civilians were U.S. contractor employees.45
Technically, these U.S. civilians fell outside the terms of the Pentalateral Agreement,46 the international agreement that governed the status of U.S. forces and **DoD** civilian employees in Vietnam.47 As a practical matter, however, Vietnam was not interested in prosecuting crimes involving U.S. property or victims.48 Consequently, the U.S. secured waiver of Vietnamese jurisdiction over six civilian cases, occurring between November
1966 and August 1968.49

## George S. **Prugh,** Lnw At War: Vie?Nam 1964-1973 92 **(1975).** Major General Prugh Was The Military Assistance Command, Vietnam **(Maw)** Staff Judge Advocate From 1964 - 1966, **And** Assumed Duties As The Judge Advocate General Of The Army In 1971.

" PRUGH at 108.

Formally known as the "Mutual Defense Assistance in Indcchina Agreement," the treaty **was** signed by the five nations, France, Laos, Cambodia, Vietnam, and the U.S., on 23 December 1950. while the agreement is no longer in force, it is reprinted at Appendix I of Law a t  **War:** Vietnam 1964 - 1973.

While the Parties Annex B of the Agreement accords various diplomatic immunities to different levels of personnel. U.S. military personnel and DoD civilians were granted immunity from Vietnamese civil and criminal process.

obviously never envisioned the vast number of U.S. personnel that ultimately deployed to Vietnam, they continued to apply its provisions throughout the conflict. Id. at 88.

" *Id.* at 92.

'*
Id. Crimes such &lack marketing and currency manipulation were of particular concern to U.S. MAW.

Id. at 109.

" *Id.* at **109.** There were ten other civilian cases MACV was interested in MACV ultimately tried four cases, one of which was Averette.

As discussed earlier, the U.S. Court of Military Appeals in Averette rejected court-martial jurisdiction under the "[iln time of war" provision of Article 2(a) **(lo),** holding that IIwar"
referred to a congressionally declared war.

Because of the Averette decision, MAW prosecuted no other civilians in Vietnam.

The alternative to criminal sanctions was administrative action. General Prugh reported that, while commanders wi;hdrew various military privileges from civilians in **1966, 1967,** and
1968, it was not until **1969** that MACV imposed more formal administrative sanctions. In September **1969,** MACV made administrative debarments1 a provision in all civilian employment contracts.52 MACV used the debarment process frequentl~.~~
--
C. Recent Experience and Practice

## Ivilian Em- 1. Use, Function. **And** Truer Of C . .

Operations DESERT SHIELD and DESERT STORM saw the deployment
-.

of thousands of **DoD** civilian and contractor employees. There
.-

  "'(...continued)
prosecuting; however, the State Department, which issued identification cards
to civilian contractor employees and generally exercised authority over these
U.S. civilians, preferred the imposition of administrative measures to
criminal sanctions. The State Department view prevailed in these ten cases.
Id.

   50
         PRUGH at 110.
   '' The process of debarment resulted in a civilian employee's loss of
military privileg.es and, essentially, employment in Vietnam, as the
contractors agreed to terminate those debarred. Id.

rules and regulations for conduct or face debarment.

were **4,500** DoD civilians and at least 3,000 contractor employees deployed.54 With the rapid growth of contingency operations following Operation DESERT STORM, U . S .  forces -- and with them a significant number of civilian employees -- have deployed to Somalia, Haiti, Kuwait, Rwanda and to the Balkans. The Army Materiel Command (AMC) deployed 32 Department of the Army Civilians (DAC) and **279** contractor employees to Operation RESTORE
HOPE in Somalia.55 Approximately 110 DoD civilians and 12
contractor employees deployed to Rwanda in **1994** to support that humanitarian assistance operation.56 Operation VIGILANT WARRIOR
saw AMC deploy **169** DAC and **126** contractor employees to Kuwait in the fall of **1994.57** Seventy-four DAC and 611 contractor employees deployed from *AMC* to Operation UPHOLD DEMOCRACY in Haiti.5e Finally, **450** DoD civilians and **1143** contractor employees deployed to various Balkan nations to support the NATO
Implementation Force (IFOR)
. 5 9
During Operations DESERT
During these operations, deployed civilian employees have performed a wide variety of functions.

SHIELD and DESERT STORM, DoD civilian employees performed technical specialties in fields such as communications, equipment maintenance, and weapon system modernization, while contractor employees were involved with aviation, weapons, and automation systems support.60 In particular, contractor employees Of these deployed personnel, the Army **Materiel Command alone** .

    54
          DEP'T OF DEFENSE,
                                        CONDUCT OF THE PERSIAN GULF W A R :
                                                                                                FINAL REPORT TO CONGRESS N-2-3
(April 1992).
deployed 1,178 Department of the Army Civilians (DAC) and 1,140 contractor
employees. Information Paper, Army Materiel Command, subject: Deployment
History (25 Nov. 1996) [hereinafter "AMC Information Paper"] .

    AMC Information Paper.
                                         -
 '' Memorandum from MAJ Shelley Econom, Labor L. Div., Off. JAG, Army, to
Col Charles E. Trant, Chief, C r h .  L. Div., Off. JAG, Army (June 28, 1996).

" AMC Information Paper.
'* Id.
'' Id.

DoD FINAL
         REPORT, PERSIAN GULF at N - 2 .
                                    The report also noted that the Navy
                                                                (continued ...)

maintained such critical weapons as the Patriot Air Defense System, Multiple Launch Rocket System, and the TOW and Hellfire missiles.si Contingency operations in Somalia, Rwanda, and Haiti, utilized DoD civilians and contractor employees extensively on the Logistics Civil Augmentation Program (LOGCAP).

The contractors performed tasks such as meal preparation, laundering clothes, installation maintenance, vehicle maintenance, transportation, and some stevedore work.62
DoD subsequently formalized pre-deployment The Desert Storm Assessment Team identified the need for more extensive civilian training, particularly on the issue of their legal status.63
training and administration by issuing regulations for both DoD
emergency-essential civilian employees and essential contractor employees.

64
During Operation DESERT
A discussion of international jurisdictional arrangements is necessary to an understanding of the treatment of civilian offenses during these deployments.

STORM, civilians were technically subject to Saudi law because of the United States Military Training Mission Agreement.6f All
60(...continued)
deployed 500 to 600 civilian employees **for** ship and aircraft repair, and an additional *5 0 0*  civilian mariners manning Military Sealift Command vessels.

Id. at N-4-5.

## Army Materiel **Command** Memorandum (Dec. 13, 1995).

" UNITED STATES **ARMY** LEGAL SERVICES
AGENCY, DESERT
STORM ASSESSMENT **TEAM** ' S REPORT TO THE
JUDGE ADVOCLTE **GENE=** OF THE
at F-3 **(22** Apr. **1992)** [hereinafter DSAT REPORT].

64 **DoD** Dir. **1404.10,** Elnergency-Essential (E-E) DoD **U.S.** Citizen Civilian Employees (Apr.10, **1992);** 'DoD Inst. **3020.37,** Continuation of Essential DoD
Contractor Services *During Crises* (Nov. 6, **1990).** Both regulations require ncrvicc componento to identify those civilian personnel who they consider essential.

Arabia, Feb. 8 & **27, 1977,** art. 8, **T.I.A.S.** No. 8558.

parties understood this agreement to apply to **U.S.** forces deployed to Saudi Arabia. The agreement provided for exclusive U.S. jurisdiction over military personnel, but did not cover civilian personnel.66 Despite this lack of coverage, commanders were unwilling to turn over civilians to the Saudi legal system.

Consequently, a commander had no satisfactory option if a civilian employee committed a serious offense.67 In Somalia, there was no functioning government, and no Status of Forces Agreement (SOFA) existed; thus, U.S. c0mmandei.s exercised exclusive jurisdiction over all U.S. personnel, military or civilian.68 The Rwandan government granted administrative and technical staff privileges and immunities to **U . S .**  forces, including civilian employees deploying to that nation.69 No agreement existed in Haiti until December 22, 1994, three months into the depl~yment.'~
The SOFA eventually provided for a consultative process for criminal jurisdiction over civilians.71
The SOFAS with Bosnia, Croatia, and the Federal Republic of Yugoslavia (Serbia), contained in the Dayton Accords, provided for the status of IFOR personnel, including civilians.72 Under
65( ... continued)
66
DSAT **REPORT** at F-2.

67 Id. at F - 2 .
Fortunately, no such offenses occurred.

6x DEP'T OF *ARMY,* AFTER ACTION REPORT: U.S. **ARMY** LEGAL OPERATIONS IN OPERATION RESTORE
AAR] .

69
Memorandum for the Record, MAJ Marc L. Warren, Int'l & Operational L.

Div., The Judge Advocate General's School, U.S. Army, subject: Status of Forces in Rwanda, (31 Aug. **1994).** Administrative and technical staff privileges accord those persons absolute immunity from the host-nation criminal jurisdiction and immunity from the host-nation's civil jurisdiction for those acts performed in the course of their duties. Vienna Convention on Diplomatic Relations, Apr. 18, 1961, arts. **2 9 - 3 5 ,**  36, T.I.A.S. No. 7502, 50
U.N.T.S. 9 5 .
Haiti *AAR* at 52.

M
" *r d .*  at 2 5 5 .
the agreements, the providing nations retained exclusive criminal jurisdiction over its civilian Because host-nation prosecution of civilian offenses was not
*available or desirable, commanders had to rely on administrative measures to handle civilian employee misconduct. Fortunately, during Operations **DESERT** SHIELD and **DESERT** STORM -- by far the largest deployment of **DoD** civilian employees and contractor employees -- instances of criminal conduct were rare.74 The austere conditions of the region no doubt contributed to the absence of criminal activity. The **DoD** Final Report, Persian Gulf, also cited the volunteer spirit and professionalism of the civilian employees as factors. The cases of misconduct that did occur involved DoD civilian employees who did not report as directed to the area of operations-or left the area without authority.

Both involved allegations of larceny, one by The Minor misconduct was more prevalent, In Haiti, the Staff Judge Advocate **(SJA),** Joint Logistics Support Command reported t w o  cases of significant crimes by civilian employees.

a DoD civilian employee and one by a contractor employee.75
command pursued administrative action against the **DoD** civilian employee, and barred the contractor employee from the in~tallation.'~
specifically violations of the General Order, such as violating the two-vehicle travel restriction, possessing or consuming alcohol, sexual relations with local nationals, and other behavior considered detrimental to good order and discipline I
"(...continued)
(1996) [hereinafter Dayton Accords].

 " T d .  at 102-107
 '' DoD FINAL
          REPORT, PERSIAN GULF at N-6.
 '' Memorandum, LTC Arthur L. Passar, AMSMI-GC-A1-D, to Staff Judge
Advocate, U.S. Army Material Command, subject: After Action Report, Legal
Support to Joint Logistics Supporr Command, Joint Task Force 190, Haiti,
Operation UPHOLD DEMOCRACY, September 1994 - March 1995, paras. 6 i . & j . ,
May 1995).
                                                         (11

## I

-I ._ _-
during the operation." The staff judge advocate reported that contractor personnel "regularlyt1
violaced the regulation.78 The commander of Joint Logistics Support Command issued at least two letters of reprimand to the same DoD civilian employee for violation of the General Order.79 This situation had a negative impact on soldiers' morale as they perceived a double standard in enforcing the General Order."O
In Bosnia, a senior judge advocate reported that DoD
civilian and contractor employees are performing well, with few adverse incidents.81 As in Haiti, eighc DoD civilians and one contractor employee violated General Order Number 1 by entering a neighboring village in an unauthorized convoy. The cognizant commander imposed temporary suspensions on the **DoD** civilian employees. The only significant substantiated incident involved a **DoD** contractor employee who possessed a controlled substance with the intent to distribute. The conttactor fired that employee.82 One potentially serious incident occurred in Croatia as an employee of the Army and Air Force Exchange Service (AAFES)
accused another AAFES employee of sexual assault. Although the to U.S. Army Europe, Off. JAG., subject: Infotmbtion on Civilians Accompanying the Force in Operation JOINT ENDEAVOUR (7 Jul. 1996).

'' McGuire Memorandum.

alleged victim subsequently recanted the allegation, judge advocates were concerned that Croatia, the only state with effective jurisdiction, may not have had the desire to prosecute the case.

Civilian employees have played a significant in-theater role during military operations. Their role has increased in recent deployments to Somalia, Haiti, Rwanda and Bosnia as the Armed Forces transfer support functions to the civilian sector.83 The development of the Logistical Support Element concept **(LSE)** and the use of the Logistics Civil Augmentation Program (LOGCAP)
illustrate this trend.

The Army Materiel Command (AMC) established the LSE program in 1994. Made ~p primarily of **DoD** civilian employees, along with auiitc t i i i l i L c l i y  cliicl **cu11ti-ac:toi-** p c r n o n n r l l ,  the T,SE is designed as a rapidly deploying logistics cell that can provide a wide spectrum of logistics functions. These functions include technical advice, maintenance, contracting, and supply, to name a few. The maximum size of a LSE is nearly 1300, the number of personnel AMC
anticipates it will need in a major armed conflict. The LSE is not constantly manned; it is only activated for contingencies.

It does have the flexibility to deploy smaller modules for a

x3
The **DGD** Final Report foresaw this development:
While the recitation of civilian roles and duties in this report is not exhaustive, it is illustrative of the degree to which the military has come to depend on the civilian employees and contractors. Many roles have been transferred to the civilian sector from the military because of force reductions, realignments and civilianization efforts.

Civilian employed in direct support of Operations DESERT
It seems clear that future contingencies CI1ITFT.V and m?SPRT .STORM w e r e  t h e r e  hecause the capability they reprzseutrcl W
~
P

i i u L  ~ U L A A ~ A C A A L L ~
A
~
~
A
L
~
~
L
S

L
~
L
 :,4
uniformed military or because the capability had been consciously assigned to the civilian component to conserve military manpower.

also **w i l l**  require the presence and involvement of civilians in active theaters of operations.

DoD FINAL REPORT, PERSIAN GULF at n-2.

particular operation.

less than one hundred **DoD** civilians to As an example, AMC has deployed a LSE of The purpose of the LOGCAP is to plan for civilian External support sources come from LOGCAP assists the Army in achieving its contractors to augment Army forces by performing selected services in wartime.e5
policy of increasing its "combat potential within peacetime resource allocationsii by increasing the number of sources from which it can draw support.e6
LOGCAP or through host nation agreements."
Host nation agreements have not been available in Somalia, Rwanda, and Haiti, given the limitations of host nation infrastructure, the absence of a functioning government, or both.ea Consequently, LOGCAP was the preeminent support resource in each of these deployments.e9
-
One difficulty associated with this growth in the use of contractor employees is the lack of accurate accounting of such personnel by the Services. The committee was only able to obtain statistics from the Army, particularly the Army Materiel Command
  AM^), which centrally processes all deploying civilians through the Continental United States Replacement Center **(CRC)** at Fort Benning, Georgia (formerly located at Aberdeen Proving Ground)
AMC has maintained statistics for all of its personnel deploying, both
(continued.. .)
Previous studies have reached similar conclusions.91 Besides its major recommendations in section VI of this report, the committee recommends that **DoD** require the Services to keep current data on a l l  contractor employees deplQy@d with forces in the field, and report that figure periodically to the Office of the Secretary of Defense.

## * . . Civilian Familv Me D Contractors C 3 . & Comdanv -

In many ways, American military communities overseas resemble small American citins. In addition to uniformed personnel, these communities **are** populated with many civilians:
DoD employees, employees of **POP** contractors, and family members.92 Family members include those of civilian employees and contractors, as well as chose of servicemembers. It is not unusual for the civilians apcornpanying **U.S.** forces at a particular overseas location co outnumber the uniformed personnel.

Civilians accompanying **0.9,** forces overseas remain a significant command responsibility, despite the recent post-Cold War drawdown. While U.S. mi$ic$ry personnel assigned overseas have decreased by 54% since *1.989,* from 510,000 to 237,000, the
-
number of family members accompanying **DoD** personnel has decreased by only **39%,** and the number QC **DoD** civilian employees dropped by

   92
          Family members of military petsomel, and of DoD civilian employees and
Contractor personnel overseas, are ofcen referred to as "dependents," both
officially and in common usage. SPL?, e . g . ,  10 U.S.C.  1036 (escorts for
dependents of armed forces members during travel), 1059 (transitional
assistance for dependents of armed forces members separated for dependant
abuse); DoD D i r .  1342.6, DepartmeBt O f  Defense Dependents Schools (Oct. 13,
1992) ; DoD D i r .  6010.4, Dependenta tft9dical Care, (Apr. 2 5 ,  1962).

4 8 % . 9 3  As of March 31, 1996, there were more than 240,000 family members of military and civilian employees overseas and nearly
9 6 , 0 0 0  civilian employees.94 At the same time, the frequency of criminal incidents involving **U . S .**  civilian employeesg5 and U . S .
family members has not fallen prop~rtionally.~~
The right,to prosecute an offense committed by a member of the U . S .  force, or a civilian serving with or accompanying that force, is governed by the SOFA between the U.S. and the host nation. The typical **SOFA** gives U . S .  military authorities the exclusive right to exercise jurisdiction over acts that violate U.S. law, but not host nation law, and the host nation exclusive jurisdiction over offenses under its law that are not offenses under U . S .
For acts that violate the laws of both

93
      DEP ' T OF DEFENSE,
                            WASH - HEADQUARTERS
                                                   SERVICE, DIRECTORATE
                                                                             FOR INFORMATION, WORLDWIDE

MANPOWER DISTRIBUTION BY GEOGRAPHICAL
                                     AREA, at 12 ( 1 9 8 9 )  .
                                                              DEP'T OF DEFENSE, WASH.
HEADQUARTERS
             SERVICE, DIRECTORATE FOR INFORMATION, WORLDWIDE MANPOWER DISTRIBU~ION
                                                                                   BY
GEOGRAPHICAL
             AREA, at 12 ( 1 9 9 6 )  [hereinafter 1996 WHS REPORT].
                                                                       The committee
chose 1989 as a year of comparison because it has become acknowledged as the
last year of the Cold War, and represented a high level of troop concentration
in Europe.

94
      1996 WHS REPORT at 12.

     The key reference regarding the exercise of foreign criminal
jurisdiction is the DoD Annual Report of Statistics on the Exercise of
Criminal Jurisdiction by Foreign Tribundls over United States Personnel.

DEP'T O F  DEFENSE,
               REPORT OF STATISTICS ON THE EXERCISE OF CRIMINAL JURISDICTION
                                                                  BY FOREIGN

TRIBUNALS
       OVER UNITED
                STATES PERSONNEL (1989 & 1995) [hereinafter DoD FCJ REPORT].
This report combines statistics for both DoD civilian employees and family
members into one category for reporting purposes.

No matter

    96
          It is important to note that these figures are not a complete picture of '
misconduct by DoD civilians overseas, because these statistics only address
cases where the host country had primary right of jurisdiction. The committee
could find no useful statistics on offenses over which the U.S. had primary
right of jurisdiction. Also, the committee could not find definitive
statistics concerning the number of contractor employees serving with U.S.
forces overseas or misconduct associated with contractor personnel.
whether Congress acts on the committees recommendations in section VI of this
report, the committee recommends that DoD require the Services to track this
information.

   See, e . g . ,  NATO SOFA, art. VII, 5 2 (1951).
97

The countries, the typical SOFA gives either the **U.S.** or the host nation a primary right of jurisdiction, depending on the circumstances of the offense. The U.S. will have primary right of jurisdiction over offenses solely against the property or security of the U.S., solely against the person or property of other U.S. personnel, or arising out of the performance of official duty by U.S. personnel.9e The primary right to prosecute all other offenses rests with the host nation.99
nation with the primary right of jurisdiction may waive that right, either on its own initiative or at the request of the other nation.

loo The number of cases in which civilian employees and family members were subject to the exclusive or primary right of jurisdictionlo' of a host nation fell from 1,576 in 19891? to
1,428 in 1995.13 Of these cases, host country jurisdiction was relinquished to U.S. authorities in **240** (or 15%) in 1989 and in
326 (or 21%) in 1995.14 These statistics are relevant only to
98 Id. J 3(a).

'' Id. S 3(b).

loo Id. 5 3 (c) .

In these cases, the **SOFA** grants one of
"" The terms exclusive and concurrent jurisdiction derive from the NATO
SOFA, which has been often used as a model for other SOFAS.

Exclusive jurisdiction refers to those categories of offenses punishable by the laws of only one of the states, e.g., national security offenses such as espionage or treason. Concurrent jurisdiction arises in cases involving offenses punishable by the laws of both states.

the states primary concurrent jurisdiction, e.g., the NATO **SOFA** grants the sending state primary concurrent jurisdiction over offenses committed in the course of duty or those offenses against persons or property of the sending state. Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, Jun. **19, 1951,** art. VII, **T.I.A.S.** No. 2846, 199
u. N. T. S .

L A W  151 (1971).
                    6 7 .
                               See SERGE W E F F ,  STATUS OF MILITARY FORCES
                                                                                                                      m E R  CURRENT INTERNATIONAL
                                                                                            -

1989 DOD FCJ REPORT at 1.

I"'
       1995 DoD FCJ REPORT at 1.

show that the general trend of civilian misconduct is not declining significantly. They do not reveal the primary source of commanders' concerns about overseas civilian misconduct:
those cases in which, under a **SOFA,** the U.S. has primary right of jurisdiction, that is, offenses against **U.S.** persons or property, or acts by civilian employees in the performance of official duty. These cases concern commanders most, because U.S. criminal law often does not apply even when the SOFA gives the U.S.

primary right of jurisdiction.

Not surprisingly, commanders of those forces accompanied by the greatest number of civilians, particularly in Korea, Japan, and Germany, expressed the greatest concern with civilian crime.

In the Pacific, Japanese and Korean authorities usually choose not to prosecute cases in which no host nation victims or accomplices are involved, or when successful prosecutions are not a virtual certainty.Io5 German authorities are also reluctant to prosecute cases in which they have no significant interest.

Army judge advocates state that, when German authorities do prosecute U . S .  civilians, the sentences are often I1inadequate1'
when compared to court-martial punishments.106 As a result, cases of rape, child molestation, domestic violence, drug distribution, and substantial larcenies go unpunished Lor inadequatzly punished. In such cases, and dozens of others Io4(.

. .continued)
to waive jurisdiction in cases in which "suitable corrective action can be taken under existing administrative regulations.

'I DEP'T OF *ARMY,* REG. 27-50, STATUS
OF **FORCES** POLICIES, PROCEDURES, AND INFORMATION, para. 1-7b **(14** Jan.

1990) [hereinafter AR **27-50].** This regulation is dual-titled as Secretary of the Navy Instruction 5420.4G.

See Memorandum, General Counsel, Department of the Air Force to Overseas Jurisdiction Advisory Committee, subject: Overseas Jurisdiction Advisory committee **(15** Aug. **1996);** Memorandum, Staff Judge Advocate to the Commandant of the Marine **Corps** to Overseas Jurisdiction Committee, subject: Overseas Jurisdiction Advisory Committee - Marine Corps Input **(17** Jul. 19961;
Memorandum, Fleet Judge Advocate, U.S. Pacific Fleet to Assistant Judge Advocate General (Civil Law), subject: Overseas Jurisdiction Advisory Committee **( 3**  Jul. 1996).

'06
Memorandum, Judge Advocate, **U . S .**  Army, Europe and Seventh Army to COL.

Thomas G. Becker, Associate Deputy General Counsel (Military Justice and Personnel Policy), subject: Jurisdiction over Civilians Overseas (8 Aug.

1996) -
reported in response to the committeets requests for information, commanders complained of the woeful inadequacy of available administrative remedies. Typical of the responses from the field were the comments of the Commander, U.S. Naval Forces, Japan, who described the inability to deal adequately with serious civilian offenses as a "significant and longstanding problem" that leaves overseas commanders and their communities "without any legal deterrent to, nor protection from, criminal activity.

DoD civilian employees are subject to a variety of administrative sanctions for misconduct under federal law pursuant to their federal employment contract. These sanctions include informal actions (oral admonitions and warnings) , formal actions (written reprimands), suspension for less than 14 days, and adverse actions (suspensions for more than 14 days, furloughs without pay, reductions in pay or grade, and removal).108 While deployed, they are subject to the commander's general conduct policy, violations of which expose them to administrative sanctions.

DoD civilian family members are subject to administrative sanctions ranging from warnings, restricting base privileges
(driving, commissary, and post exchange), **an3** barring from the base, to the early return of family members to the United States.

The last two are significant. Barring a dependent from an overseas base cuts the dependent off from the source of almost all privileges associated with membership in the American military community. Barment often has the practical effect of preventing the dependent's sponsor from living in government housing on the base. ''Early return of dependents" is accomplished by revoking the dependent's status under **SOFA,** which often is the prerequisite for the dependent's lawful presence in the host country. Revocation of **SOFA** status for one dependent often has the practical effect of requiring the early return of all of a sponsor's family members, and may require the curtailment of a military member's tour of duty. This may have serious career consequences for the military member.

Contractor employees, unlike **DoD** civilian employees, are not under the direct supervision of military commanders. Instead, their relationship with the military is solely a function of the contract of employment between their employer and the government.

The contract contains the statement of work the contractor is to perform. The contractor must then hire qualified personnel to perform to the standard of the statement of work. Thus, in most cases it is the contractor who must impose any sanctions on his or her ernp10yee.l~~
Military commanders are not powerless in this relationship.

They have the responsibility to accomplish their assigned mission, and require a disciplined force to do so; such a force obviously includes those civilians accompanying the force. To ensure this discipline and unit cohesion, the Army Materiel Command recommends that contracting officers include contract provisions requiring contractor personnel to comply with the commander's guidance and instructions, such as General Order Number 1.ll0 Failure to comply with that guidance may result in the commander barring the contractor employee from certain facilities, such as the post exchange. Ultimately, the commander can recommend that the employer remove the offending employee from the area of operations.111 The Staff Judge Advocate for the Joint Logistics Support Command in Haiti reported that in the vast majority of cases, contractors were willing to remove such employees.112 If a contractor is not willing to remove an employee, the commander has the power to bar the employee from installation facilities or revoke the employee's SOFA status, which would require the employee to leave the host country.

'09 u. s . *ARMY* MATERIEL **COMMAND,** *AMc* CONTRACTOR DEPLOYMENT GUIDE
FOR CONTRACTING OFFICERS
2-1 (Jul. 1996).

'lo Id.

"' Id.

## D. Experiences Of Other U.S. Government Agencies And Foreign Governments 1. **U.S.** Dedartment Of ~Ustlce A N ~ ~ - ~ ~ R T M E N T Of State

Of 93 federal judicial districts, U.S. Attorneys in statute Most reported cases were for The two Despite these concerns, the committee found United States Attorneys' have had limited experience prosecuting civilians accompanying the armed forces in foreign countries.

only 12 could recall prosecuting a case involving a civilian who had been accused of an overseas violation of a U.S.

having extraterritorial effect.113
violent crimes such as murder or rape, but other offenses such as fraud against the U.S. have also been prosecuted.

problems most often cited by U.S. Attorneys f o r  the small number of successful prosecutions were the logistical difficulties of obtaining evidence and witnesses from foreign countries, and the lack of clear jurisdictional authority to support a prosecution.'l4
considerable support among U.S. Attorneys for extension of federal jurisdiction to offenses committed by civilians accompanying **U . S .**  forces overseas.

Usually the person accused of crime has had Where U.S. jurisdiction existed over the The State Department does not maintain statistics on the number of criminal cases that arise among its personnel overseas.

However, response to committee inquiries suggests the current
"jurisdictional gap" poses only a minor problem within the State Department.

diplomatic immunity and, if restitution was not made voluntarily, the offending person and any family members were withdrawn from the host country.

offense, the Justice Department has usually declined to prosecute.

115

## 2. United Kingdo M And Can Ada

Since the United States and Canada derived their judicial systems from that of the United Kingdom, a brief review of the current practices of the United Kingdom and Canada with respect to civilians accompanying the force provides suggestions as to how the U.S. jurisdictional practice might have developed, but for the R e i d  v. *Covert* line of cases. Both the United Kingdom and Canada have long subjected civilians to military law when accompanying the forces in foreign countries. However, their current practices demonstrate important differences in the way they handle civilian misconduct overseas.

Since 1879, British civilians accompanying the armed forces have been subject to military law when the force was on "active service."116 A force is on "active servicett when it is engaged in operations for the protection of life or property, or during military occupation of a foreign country.117 Those civilians accompanying forces on active service were tried in British consular courts, until this practice was gradually discontinued the first half of the twentieth century-ll' After that time, civilians accompanying a fuke not on active service were in a jurisdictional void, since in most cases they remained immune by treaty from host country jurisdiction, yet no local British authority could exercise jurisdiction over them.l19
The United Kingdom extended military jurisdiction over civilians accompanying the force when not on active service for the first time by passing the Army and Air Force Acts of 1955 and the Navy Act of **1957.120** Such civilians can now receive summary punishment from a military commander for minor offenses, but have the right to choose court-martial instead.lZ1 Since 1976, civilian Crown servants can sit on a court-martial trying a civilian, but cannot sit as president. Civilian members cannot make up a majority of the court-martial panel.122
An alternative to court-martial was created by the Armed Forces Act of 1976, which created the Standing Civilian Court
(SCC). SCCs can adjudicate all but the most serious offenses involving civilians. An *SCC* has less sentencing power than a court-martial, but a wider range of possible sentences, particularly where juvenile offenders are concerned. A civilian judge advocate presides over a SCC, and sits alone as a magistrate except in juvenile cases, where up to two lay members may join the court.

-
Whether a civilian defendant is tried by court-martial or by a SCC, the convening officer is the senior officer in the chain of command above the commanding officer of the civilian defendant's unit. This officer has the power to decide whether a case will be tried by court-martial or by SCC. When the defendant (whether civilian or military) has ceased to be subject rr, **military** law for Qvsr *six* **months** prior to the court-martial proceedings, the United Kingdom's Attorney General must consent before the trial can begin. This occurs frequently in civilian cases, since civilians cease to be subject to military law as soon as they leave the overseas territory ~0ncerned.l~~
According to the United Kingdom's Ministry of Defence, there is little opposition in Parliament or in the British public to the exercise of military jurisdiction over civilians. The From greater focus appears to be on negotiating with host countries to o b t a i n  British jurisdiction over its nationals rather than leaving them subject to the host country's jurisdiction.

1994-1995, U.K. Army and Air Force courts-martial tried nine civilians for offenses ranging from disorderly conduct to murder.

In the same period Army and Air Force SCCs tried 52 civilians f o r
assault, theft, burglary, and drug and traffic offenses.125
family members of military members serving outside Civilians can be tried by either a General A General court-martial Canada provides for military jurisdiction over two groups of civilians:
Canadian territory, and civilian employees serving outside Canada who have consented to be subject to the Code of Service Discipline as a condition of their employment with the Minister of National Defence.

or a Special General court-martial.

consists of five members and one judge advocate. A Special General court-martial consists of a military trial judge sitting alone lZ6
Offenses under the When a Canadian civilian is charged with an offense, the commanding officer of the unit involved forwards the charges to the senior commander on location for disposition. Trial cannot proceed until it has been approved by the Minister of National Defence if the offense charged is under the Criminal Code of Canada or if imprisonment is possible.

Criminal Code of Canada may be transferred to a civilian criminal court in Canada, although this has not happened. While there have been no General courts-martial involving civilian defendants in the past thirty years, there have been ninety Special General courts-martial in the past ten years. The charges have included theft, fraud, battery, drug offenses, and driving under the influence of alcohol.

lZ7

## V. Committee Findings

Based on its review, the committee finds two "jurisdictional The second is the failure of the federal The first is gaps" where current military law and federal civilian criminal law fall short in satisfying the national interest.

the lack of court-martial jurisdiction over those **DoD** civilian employees and contractors who deploy with forces during contingency operations.

civilian criminal law to address comprehensively criminal behavior by civilians who accompany U.S. forces overseas.

-

## A. Contingency Operations.

As previously The United States has not Article 2(a) (10) of the UCMIJ'~~ only allows for court-martial jurisdiction over civilians "[iln time of war."
discussed, case law has interpreted Irwarsl in this context to mean a congressionally declared war129.

declared war since World War 11, but has engaged in several major combat operations without a congressional declaration of war.

Accordingly, the committee believes the phrase "in time of war!'
is too narrow a concept upon which to base court-martial jurisdiction over civilians serving with forces in the field, both as a practical matter and as a matter of constitutional law.

DoD civi1ic.n workers and contractors accompany the armed forces in many operations which, while not in periods of declared war, involve actual or imminent hostilities and are of great importance to the national security interests of the United States. The narrow judicial definition given "in time of war"
leaves the United States and its armed forces unable to apply meaningful punishment to (and hence deter) serious offenses by civilians who accompany the armed forces during military operations in which combat is occurring or is likely to occur.

Unlike in peacetime, serious crime by civilians in these circumstances can directly affect mission accomplishment and the safety of the forces, just as much as offenses by men-bers of the armed forces. For example, a civilian who rapes a member of the the civilian undermines the entire the civilian en6angers the safety of others and puts I U , C ~ L  **populat-iLzl** d u f i r A 2
p s ~ c % e e > < - ~
c
,
~
e y
~
~
~
~
~

~ ~ Y T I ~ , + _ s
not simply a reprehensible act;
mission by encouraging resistance to **U.S.** efforts to bring peace.

Similarly, a civilian who disobeys an order to maintain operational security is guilty of more than a simple rule infraction;
at risk the success of the mission.

Because "in time of war," as currently interpreted, has too narrow a definition, the committee sought a better definitional concept upon which to base court-martial jurisdiction over civilians serving with U.S. forces. The committee applied three criteria to this search. First, the definitional concept must be broad enough to include military operations in which, because of the existence or imminence of combat, offenses by civilians wouldi i a ~ c  u direct- and o u b i l t a n t i s l  **impart** on t-hs success of the This is necessary to deter and punish crimes by operations.

civilians accompanying the forces on missions that are so important to American security and foreign policy interests that, Second, the definition needs to The definition must be Finally, the definition needs to be clear, in order to accomplish those missions, the United States is willing to risk combat losses.

be narrow enough that it included only those operations in which these important interests are at stake.

narrow to meet constitutional and policy concerns that courtmartial jurisdiction over civilians must not be broader than absolutely necessary.

a "bright line1' so that everyone (and, above all, the civilian employees and contractors who would be subject to court-martial jurisdiction) would have no doubt when the threshoId was crossed.

"Armed For these reasons, the committee did not choose "armed conflict" as its definitional notion, despite the use of that term in the statute that created this committee.

conflict" does not have an agreed meaning. Even when all can agree that a certain episode constitutes Itarmed conflictrn it is not always clear when "armed conflictft begins or ends. For example, in the Gulf War, did "armed conflict" for U.S. forces begin with their deployment to the theater during Operation DESERT SHIELD, with the start of Operation **DESERT** STORM, or at some point in between? Did that "armed conflict" end with the cease fire, or does it continue to this day with **U.S.** enforcement of the "no **fly"** zones in Northern and Southern Iraq?

Instead of
"armed conflict," the committee has focused on "contingency operation," when such is designated by the Secretary of Defense, as the definitional concept that meets all three committee criteria.

The concept of llconringency operation" is familiar to
; , r . i ' - +  i t  i'#rir'rs: **' J f**  m i 1  **i t**  .1r./
r J r , I > r , > f  i c n r r  law. Don **r-cqiilav-i~nr;** l ~ r : ?
the statutory definition of "contingency as a trigger to give civilian workers, among other things, Geneva Conventions identification cards and standard identification cards, as well as training in specified subjects.131 "Contingency Two recent I3O
Title 10, Section 101(a) (13) **( A ) ,**  defines "contingency operation" as a military operation that Itis designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an opposing military force;. . . . 'I
Section lOl(a) (13) **(B)** further defines "contingency operation*8
to include other operations that result in the call to active duty, or retention on active duty, of certain members of the armed forces.

operations were otcontingency operations" by Secretarial designation under 10
U.S.C., section **101(a)** (13) (A). These were Operations JOINT ENDEAVOUR (Bosnia)
and RESTORE HOPE (Somalia). See SecDef memoranda of 14 December **1995** and 5
December **1992.** Other operations assumed "contingency operation" status by operation of section 101(a) (13) **(B).** These include Operations DESERT SHIELD
and DESERT STORM (the Gulf War), and UPHOLD DEMOCRACY (Haiti). Telephone Conversation with Colonel Michael McAntee, Deputy Legal Counsel to the Chairman, Joint Chiefs of Staff, March **13, 1997.** AS will be discussed later in this report, the committee proposes to rely only on a contingency operation expressly designated by the Secretary as such under section 101(a) (13) ( A ) .
"'
DoD Instruction 1400.32, DoD Civilian *Work* Force Contingency and Emergency Planning Guidelines and *Procedures* (Apr. 24, **1995).** at paragraph F.l., provides that civilian employees entering a possible theater of operations receive the following information:

a. Armed forces standards of conduct training, as Well as coping skills if
they become Prisoners of War.
b.
Training in the use of military gear. -
c .  The same immunization requirements as military personnel.
d.
Cultural awareness training.
e. Passports, visas, **and** country clearances as appropriate.
-
operation," especially where one has been expressly declared by the Secretary of Defense (SecDef), has a clear and established
*
statutory definition and presently triggers legal consequences.

'*Contingency operation*' is the term that best describes the type of hostile environment to which today's American forces (and the civilians serving with them) now find themselves deployed, and to which they will likely find themselves deployed in the future.

Accordingly, the committee believes '*contingency operationll

r l J i r l l i l ( l
                          1 3 -
                                     !.lit- dof i n i  t- i o n . i l
                                                                                                    t m r i i r i  For rmiirt rn.irt i a l  jiit-isdict.ion
over civilians serving with U.S. forces in the field.

     The committee was unable to find complete statistical data
on civilian misconduct during contingency operations. Although
there has not been a major problem with civilian misconduct
during contingency operations, the potential for harm to mission '
safety and success, and, therefore, to the national interest, is
too great to ignore. The Army has informed the committee that,
during Operatipn DESERT STORM, four of its civilian employees
were involved in significant criminal misconduct, yet faced minor
sanctions when compared with those imposed on military personnel
committing the same offenses.132 Reports of civilian employees
receiving little or no punishment during contingency operations
continue . 133

  '3'(...continued)
f. Appropriate clearances.

9. Certain legal assistance, e.g. preparation of a will or a power of
attorney.

h. In case of death, a civilian has the same rights a military person would
have, to include the right to an escort officer, and the purchase of a flag at
government expense.

    '32 Pursuant to a committee request, the U.S. Army Criminal Investigation
Command ran a search for offenses occurring in the area of operation.
Offenses ranged from importation of illegal firearms to larceny and receiving
stolen property. In three of the four cases, no action was taken. The lone
DoD employee who did receive punishment was suspended for 30 days without pay.
                                                    -

    During Operation UPHOLD DEMOCRACY (Haiti), a DoD contractor and a DoD
employee were found to have committed conspiracy and larceny;
is no record of any action being taken on the case. In Operation JOINT
                                                             however, there

(continued ...)

                                                                                            37
                                                                                   -
       More important than what has happened in the past, the
potential for injustice and damage to U . S .  foreign policy is
great. If, during the present contingency operation in Bosnia, a
civilian employee rapes a local national, there is no stronger
response for U.S. authorities o t h e r  than firing the employee. If
a DoD contractor employee kills a member of an allied force in
Bosnia, there is no recourse for U.S. authorities other than
revoking the employee's SOFA status. The result is the same if a
DoD civilian employee contractor sexually abuses a child in
Bosnia or sells dangerous drugs to U.S. forces there.

     The critical support: provided by DoD civilian employees and
contractors has become a routine part of contingency operations.
As the number of civilians accompanying U.S. forces overseas
increases, the committee believes that the number of serious
crimes committed by civilians will also increase. Crimes such as
those involving violence or major fraud against the local
populace, allied forces or U.S. personnel must be handled swiftly
and effectively if we are to avoid harmful effects on military
operations or international relations.

     It is generally recognized that the host nation has primary
                                                                -
criminal jurisdiction over criminal misconduct occurring in its
territory. However, in most recent contingency operations the
United States has had primary or exclusive criminal jurisdiction
over its personnel, including civilians accompanying the forces.
Because of the weakness, instability, or even nonexistence of
host nation governments in many contingency operations, it is
likely that the United States will continue to have primary or
exclusive criminal jurisdiction during such operations, either
through a negotiated SOFA or by default. Accordingly, commanders
must have the legal tools to maintain discipline and punish
crimes among civilian members of their forces. Failure by U.S.
authorities to adequately address serious criminal acts within
the civilian component of the force will result in embarrassment
in the international community, hostility in the local populace,

      .continued)
ENDEAVOUR (Bosnia), a DoD contractor was found to have possessed a controlled
substance with intent to distribute, and unlawfully sent a firearm through the
U.S. Mail. This contractor was terminated from h i s  job.

loss of cohesion with our allies, and lower morale and discipline in our uniformed forces.

There is potential for serious A force commander may also have The ability of a commander to take disciplinary action is a key to accomplishing the mission.

offenses going unpunished in a protracted contingency operation.

This is particularly true as involvement in contingency operations by civilian workers and contractors increases.134
Undoubtedly, the austere conditions in Saudi Arabia contributed to the low r a t e  of military and civilian criminal misconduct, as it did for the uniformed forces. In a less spartan environment, or a more protracted contingency operation, it is only a matter of time before a civilian commits a crime for which administrative sanctions are neither appropriate nor In a contingency operation like JOINT ENDEAVOUR, where the mission is not easily definable and involves a long stay in the host nation, t h e  ability of a military commander to exercise criminal jurisdiction over civilians servlng with his or her unit is important. Because turning over t h e  civilian to *the* host nation would be impractical, a civilian employee or contractor would escape significant punishment after committing a serious offense.

This not only would adversely affect the morale of the military contingent, but would also have the potential for an international relations crisis if the victim is a local citizen or serving with an allied force.

an obligation, in certain circumstances, to discipline foreign nationals under his or her command who commit war crimes.136 To Memorandurn ot 9 August **1996** trom Staff Judge Advocate to Commander I n
Chief, United States Atlantic Command, reports an ever increasing reliance by the military on civilian contractors, such as **Dynacore/Brown** and Root, to provjde military logistical and support functions.

'" Memorandum of 7 July 1996 from Office of **the** Staff Judge Advocate HQ, U.S. Army Europe **(FWD)** in Taszar, Hungary, reported an AAFES employee accused another AAFES employee of sexual assault. Although the accuser recanted the accusation, the investigation determined that had the allegation been true, there would have been no U.S. criminal jurisdiction over the assault.

Memorandum from Department of the Navy Law of Armed Conflict Branch, dated September 4, **1996,** opines that Protocol Additional to the Geneva Conventions of August **12, 1949,** and Relating to the Protection of Victims of International **Armed** Conflicts, requires military commanders to take action
(continued.. .)
-
hold foreign nationals criminally accountable, without the power to do the same for U.S. civilian personnel serving with the force during a contingency operation, would be unjust and further undermine force morale.

Crimes by members Prosecution in federal civilian court, even if available, w c ~ r i l d  not adequately address the special problems associated with a contingency operation, for three reasons. First, the commander
-- and not a civilian prosecutor -- is responsible for his or her forces and the accomplishment of the mission.

of the force, whether committed by military or civilian personnel, endanger the force and the mission. Therefore, the commander should have the power to initiate steps to hold offenders accountable, and not have to defer to a U.S. attorney located well away from t h e  operation. Second, some serious crimes under the UCMJ, and which would have particular impact in a combat environment, do not have counterparts in federal law.137
Finally, even if a crime violates federal law, as a practical matter it may only be prosecutable by a court-martial convened at or near the site of the offense, because victims and witnesses are unable or unwilling to travel abroad. In short, allegations of serious crime by civilians serving with U.S. forces during contingency operations demand a swift, efficient response. This cannot happen if decisions to prosecute, and authority over any resulting prosecutions, rest entirely with United States Attorneys located thousands of miles away from the contingency operation.

## B. Dod Civilians And Family Members Stationed Overseas

The inability of the United States to hold its citizens criminally accountable for offenses committed overseas has undermined deterrence and resulted in injustice, The Services
. .continued)
against persons "under their command and other persons under their control"
who violate the Geneva Conventions or Protocol I. Although the War Crimes Act of 1996 (Pub. L. No. 104-192) moots-the issue of extraterritorial federal jurisdiction as to w a r  crimes, if commanders are unable to take action, the United States potentially would be seen as failing to live up to its duty of policing its civilian employees and contractors who accompany U . S .  forces.

and Combatant Commands report that serious offenses have gone unpunished, or insufficiently punished. The main problem has been cases which the U.S. cannot prosecute and the host country will not prosecute. Additionally, there have been cases where, even though the host nation has been willing to prosecute, the U.S. would prefer to do so because of concerns about American notions of due process, or perceptions that host nation punishment will be too light or too severe.

Although there is a jurisdictional gap, the actual void is less than many overseas commanders perceive. Many federal criminal statutes are expressly extraterritorial.138 For others, extraterritorial application may be inferred.139 Many of the most See, *e . g .*  I

18 U.S.C.  32
(Destruction of Aircraft)
18 u.S.C.  112
(Violence against internationally protected person)
18 U.S.C.  175
(Prohibition against biological weapons)
18 U.S.C.  351
(Congressional, Cabinet, and Supreme Court assassination,
kidnaping and assault)
18 U.S.C.  793
(Espionage)
18 U.S.C.  878
(Threats, etc., against internationally protected persons)
18 U.S.C.  **1116** (Murder or manslaughter of foreign officials, official
guests, or internationally protected persons)
18 U.S.C.  **1119** (Murder of U.S. national by other **U . S .**  national)
18 U . S . C .
5 **1203** (Hostage taking) Extraterritorial jurisdiction supported by
legislative history and actual purpose of Hostage Taking Act)
18 U.S.C. 5 **1512** (Tampering with a witness, victim, or an informant)
18 U.S.C.  **1751** (Presidential and Presidential staff assassination,
kidnaping or assault)
18 U.S.C.  1001 (False and Fraudulent Statements)
18 U.S.C.  **1956** (Money laundering)
18 U.S.C.  **2331** (Extraterritorial jurisdiction over terrorist acts abroad
against U.S. nationals)
18 U.S.C.  **2401** (War Crimes)
18 U.S.C. 5 **46502** (Aircraft Piracy)
.. .
''' See, e . g . ,

18 U.S.C. 5 **201** (Bribery)
18 U.S.C.  **286** (Conspiracy to defraud government)
18 U.S.C. g **287** (False, fictitious, or fraudulent claim against U.S.)
18 U.S.C. 5 **499** (False/counterfeit passes)
18 U.S.C. *5 3 0 0*  (Forgery/counterfeit instruments)
18 U.S.C. **I 6 4 1**  (Stealing, etc., public money, property or records)
common and most serious crimes are not addressed by these statutes. For example, rape, sexual assault, theft, aggravated assault, robbery, and burglary are federal crimes only if committed within the "special maritime and territorial jurisdiction of the United States," or in other special
- circumstances not applicable to **U.S.** military communities in foreign territory.140 Installations in foreign countries are not currently within the special maritime and territorial jurisdiction of the United States.

.. .continued)
18 U.S.C.  844(f) (Damage to government property)
18 U.S.C. S 1546 (Fraud/misuse of visas and other documents)
18 U.S.C.    2251, 2252 (Sexual exploitation of children)
21 U.S.C.    841, 952, 960 (Drug offenses)
For the definition of "special maritime and territorial jurisdiction of I40
the United States," see 18 U.S.C.  *7 .*  The following is a list of offenses under U.S. law that require acts in the "special maritime and territorial jurisdiction of the United States" as an element. Many of these are also offenses under alternative circumstances of federal interest (e.g., committed in Indian country or in interstate or foreign commerce).

15 U.S.C. I 1243, 1245
18 U.S.C.  13
(Manufacture, sale or possession of certain knives)
(Assimilative Crimes Act, making state crimes are federal offenses)
(Arson) (Assault) (Ma iming 1
(Theft) (Receiving stolen property)
(Transactions involving nuclear materials)
(Fraud on high seas)
(Homicides
1
(Kidnaping) (Damage to real property) (Obscene matter ) (Racketeering activitiesi
(Robbery)
( Car j ac k ing
(Sex abuse) (Stalking
1
(Traf+eI&q i n certain counterfeited documents)
(Certain terrorist acts)
(Coercion/enticement/transport of minor for sex)
18 **U . S . C .**   81
18 U.S.C.  113 18 U.S.C.  114
18 U.S.C. I 661
18 U.S.C.  662
18 U.S.C. 9 831
18 U.S.C.  1025
18 U.S.C.    1111-1113
18 U.S.C. 5 1201 18 U.S.C.  1363
18 U.S.C.  1460 18 U.S.C.  1957 18 U.S.C.  2111
18 U.S.C. 5 2119
18 U.S.C. **S S**  2241-2244,
2252, 2252A
18 U.S.C. S 226131
18 U.S.C. 5 2318
18 U.S.C.  2332b
18 U.S.C. 5s 2422, 2423
four cases of The Military Services agree that crime by DoD
overseas is a serious problem. With the post-Cold civilians War drawdown of **U.S.** forces, the number of civilian family members accompanying U.S. forces overseas has decreased significantly
(39%). However, the incidence of crime has not dropped at the same rate.141 In **1989,** 1,576 DoD civilians were involved in alleged misconduct that was subject to the host nation's exclusive or primary concurrent jurisdiction. In **1995,** that number had only dropped to **1,428.** From October **1994** to June
1996, the Naval Criminal Investigative Service (NCIS) opened 399
overseas criminal investigations on civilian subjects. In the Pacific Theater alone, during **1991** through **1996,** NCIS reported the following cases involving civilian offenders: one case of rapelcarnal knowledge; three cases of child sexual abuse; one case of aggravated assault and sexual assault;
robbery (including one where a dependent was detained for 15
counts of robbery); three cases of drug distribution; four cases of larceny and bad check offenses, totaling **$68,000;** one case of fraud where, between **1991** and **1994,** an Army employee embezzled approximately $70,000 per year). In all these cases, the host government waived jurisdiction. Installation commanders were only able to bar the offenders from their bases and take revoke their SOFA status. These numbers suggest a disturbing trend that civilian misconduct overseas is not declining at the same rate as civilian presence, and the means for effective deterrence and justice are wanting.

The committee was unable to find statistical data regarding recent cases that are not being prosecuted by host countries.142
Nevertheless, available information, although anecdotal, presents a powerful argument for extension of federal criminal

## See **Fcj** Report At 1.

jurisdiction to prevent serious crime from going unpunished. In particular, the Air Force memorandum to the committee notes disturbing evidence of past crimes that have not been prosecuted due to lack of U.S. criminal jurisdiction.14) Additionally, the Staff Judge Advocate to the Commandant of the Marine Corps, in his report to the committee dated July 17, 1996, cited a case from Okinawa in which a 16 year-old dependent raped a 15 year-old dependent at a **DoD** school.

jurisdiction.

The Japanese government waived Even if the host nation decides to prosecute, local law or procedures in use under the SOFA may make it difficult to hold an offender Sn pretrial confinement. Anecdotal information indicates there is a risk that, once the host nation releases an offender, he or she may flee the country or continue to create problems f o r  the ~0rnmand.I~~
Particularly disturbing was a 1992 fatal stabbing of a 16 year Initially, the Japanese Government did not want to prosecute, enacted in 1994, this statute was too late to have been used in even now, it is of limited utility because of statutory Memorandum from Department of the Air Force, Office of General Counsel
(Aug. 15, 1996). This memorandum, signed by the Air Force General Counsel and Judge Advocate General, strongly supported the extension of extraterritorial jurisdiction.

old dependent.

but was eventually persuaded after U.S. congressional and media interest.

Eventual sentence was confinement or 4 years. See *a l s o*  Becker at 277-78
(discussion of same case). But see 18 U.S.C. 5 1119 (foreign murder of U.S.

nationals.;
the stabbing case;
restrictions on prosecution; id. 5 1119(c)). Other cases:

Crime
Punisbent
Barred from base
AAFES employee stole $20,000 from AAFES
Use of crystal meth.. (several wives of
military members)
Barred from base
Squadron employee sexual molestation
of 24 dependent girls, 9-14 years old
Barred from base
DODDS Teacher: sexual molestation
Return to CONUS
Dependent Wife: Aggravated assault
Attempt to sever penis
Return to CONUS
Dependent Wife: Stabbing and slashing
Return to CONUS

In all these cases, the host nation declined to prosecute due to the lack of host nation interests in prosecution of the crime.

Although a complete the available information statistical analysis does not exist, and anecdotal evidence show not much has changed since 1979, when the GAO found many serious crimes committed overseas by DoD civilians went unpunished. It is clear to the committee that the federal criminal law does not adequately permit the United States to hold **DoD** civilians crl,ninally liable for their actions when accompanying the forces in foreign countries.

## C. Alternatives To Criminal Jurisdiction 1. Avallableremedles.

These are not criminal As discussed previously in this report, DoD civilians are subject to many administrative sanctions.

punishments, but are directed at installation privileges and
,employment status.

During a contingency For government employees, sanctions range from informal warnings to removal from federal operation, DoD civilian employees are subject to the commander's authority while in-theater. Accordingly, they are obliged to obey orders, including standing orders, such as the previously discussed "General Order Number **1,"** relating to safety of
___
~
The German
144( ... continued)
Dependents Schools teacher who allegedly distributed drugs to his students.

The Italians asserted jurisdiction, but released the alleged offender from custody believing the **U . S .**  had jurisdiction to try the crime. The teacher fled the country. In another memorandum, the Staff Judge Advocate Office for Headquarters, V Corps, notes several cases where the German government waived jurisdiction and the U.S. was not able to prosecute due to lack of jurisdiction, and another case where the German government asserted jurisdiction, but released the alleged offender, who subsequently fled the country. Additionally, V Corps reported a case of an adult dependent who was accused of frequent drug distribution to soldiers on base.

government declined to prosecute, as it did not view her drug involvement significant enough to prosecute. The available remedy was to bar the offender from the base. V *Corps* reports, however, that she continues to conduct illicit drug activities with soldiers off-base.

personnel and conduct of the mission. However, a commander's available sanctions for misbehavior - -  whether a violation of General Order Number 1 or serious "street crime" such as rape or murder - -  are limited to the previously described administrative actions.

Family members are subject to sanctions ranging from warnings to revocation of command sponsorship and early return to the United States.146 Additionally, the commander has several tools at his or her disposal to combat minor civilian misconduct.

These sanctions include restricting base driving, removal from base housing, revoking commissary and post exchange privileges, or in more severe cases, barring a person from entering the base.

DoD contract workers overseas are not subject to the same range of sanctions by the local commander as government employees or family members. The civilian contractor is the one tasked with imposing possible sanctions in cases of misconduct. The commander, however, may restrict base privileges or bar the person from the base. Ultimately, the commander can revoke a contractor employee's SOFA status, which would result in expulsion from the country.

## 2. W U A C V  Of Remedies.

In a serious case where only a criminal prosecution A commander has enough disciplinary tools at his disposal to respond adequately to minor misconduct by civilians in his or her area of responsibility, particularly in the case of DoD
employees.

is appropriate, the situation is much different. If an extraterritorial federal statute applies, a commander can ask the appropriate United States Attorney to prosecute. Otherwise, a commander is largely powerless.

It makes no sense to send civilians to foreign countries tc represent the United States, and have no effective legal means to control their conduct. Accordingly, commanders need the ability to call in federal civilian prosecutors to deal with serious criminal behavior.

## D. The **Need** F O R  Legislation

In their responses to the committee's inquiries, the Services and Combatant Commands strongly supported legislation to close one or both of the identified "jurisdictional gaps"
i concerning civilian offenses overseas.14' The committee agrees that legislation is needed to address misconduct by **DoD** civilians supporting military operations, and misconduct by civilians accompanying the forces overseas in peacetime settings.

## . 1. Cor T Uaencv - Odera T 1-

As discussed above, the committee believes that Ifin time of war" is too narrow a concept for use as a basis for court-martial jurisdiction over **DoD** civilians.s both as a matter of constitutional law and in terms of the practical requirements of
'" The Service and Combatant Command recommendations are summarized below:

| Court-Martial Jurisdiction                  | Federal Criminal     |
|---------------------------------------------|----------------------|
| For Military Operations                     | Jurisdiction         |
| Air Force:                                  |                      |
| No                                          |                      |
| Yes                                         |                      |
| 4                                           |                      |
| Marine Corps:                               | Notes Constitutional |
| Issue                                       |                      |
| Yes                                         |                      |
| Navy                                        |                      |
| :                                           |                      |
| Yes                                         |                      |
| .                                           |                      |
| Yes                                         |                      |
| Army                                        |                      |
| :                                           |                      |
| Yes                                         |                      |
| Yes                                         |                      |
| Central Command:                            | Supports             |
| "US                                         |                      |
| jurisdiction                                |                      |
| over                                        |                      |
| civilians                                   |                      |
| accompanying the force" without distinction |                      |
| Atlantic Command:                           |                      |
| Yes                                         |                      |
| Yes                                         |                      |
| European Command:                           |                      |
| No                                          |                      |
| Yes                                         |                      |
| Southern command:                           |                      |
| No                                          |                      |
| Yes                                         |                      |
| Pacific Command:                            | Not mentioned        |
| Yes                                         |                      |
| c                                           |                      |

Moreover, unlike the vague the term "contingency operation" has modern military operations. The committee believes that a llcontingency operation,Il as defined in title 10, U.S. Code, section 101(a) **( 1 3 ) ( A ) ,**  is broad enough to fill the jurisdictional gap, without being overly broad.

notion of "armed conflict, a specific meaning in the law of military operations.

Additionally, as also discussed above,
-
It makes sense to have the same
"Contingency operation" has an established meaning, one set by law. A SecDef-designated continency operation triggers myriad legislative provis:Lons.

designation of a military operation as a Ilcontingency operation"
results in **DoD** civilians receiving law of war training and Armed Forces Identification Cards.

llcontingency operationll mechanism to define the limits of courtmartial jurisdiction.

during Contingency operations The In the committee's view, there should be no constitutional impediment to court-martial jurisdiction over civilians who accompany the armed forces during a continency operation.

Although there may be arguments to the contrary, the committee believes the hostile environment of a Secretarially designated contingency operation makes court-martial jurisdiction over civilians constitutionally permissible. In the *R e i d*  v. Covert line of cases, the Supreme Court held that trials of DoD
civilians by courts-martial were not constitutional. However, these holdings stand only for the proposition that, peacetime, civilians do not fall within the scope of Congress'
power over the armed forces.148
contemplate the potential of armed hostilities, a condition that also falls outside the scope of these holdings.

constitutionality of the committee's recommendation in this area will be addressed at length in section VI of this report.

Such concerns The committee recognizes that Court-martial jurisdiction over **DoD** civilians poses public policy concerns.

present a sound reason to minimize the circumstances for court- a, martial jurisdiction over civilians during contingency operations.

To satisfy these concerns, there must be safeguards that will assure all that only serious offenses by **DoD** civilians are referred to trial by ~ourts-martia1.l~~

## 2. Peacetime Settinss

Closing this gap The committee believes it is necessary for Congress to close the federal jurisdictional gap by extending extraterritorial application of federal criminal law to serious offenses not covered by existing extraterritorial statutes.

will ensure relatively uniform treatment and deterrence of crimes by civilians accompanying the forces, no matter where they are stationed. The most important product of such a step will be the avoidance of manifest injustice: serious crimes, previously gone unpunished, may now be prosecuted in U.S. courts.

F o r  reasons of cost and logistics, the federal jurisdictional gap need be closed only for serious offenses, such as those punishable by federal law by imprisonment for more than one year. The present system of administrative sanctions is still generally adequate for other, relatively minor acts of misconduct by **DoD** civilians.

The committee believes there are no constitutional issues associated with further extraterritorial application of federal criminal statutes in the limited circumstances proposed,150
and there should be no significant public policy concerns over such an extension. As discussed above, many federal criminal statutes already have extraterritorial effect and have survived legal challenge.lS1 Moreover, the committee views extension of jurisdiction as a protection for the rights of Americans accompanying the forces abroad. The option to prosecute an offense in American court gives U . S .  officials leverage to obtain

(D.C. C i r .  1991).
S e e ,  e . g . ,  Yunis.

a host country's waiver of its primary right of jurisdiction.

Otherwise, Americans may find themselves on trial in a country with procedures and punishments far different from the American model of due process.

lS2
Extension of federal jurisdiction can pose logistical and procedural problems. These problems are present for existing extraterritorial statutes and may be mitigated by provisions in new legislation.lS3 In any case, these difficulties are outweighed by the need for United States jurisdiction to prosecute DoD civilians who commit crimes while accompanying U.S.

forces in foreign countries, and thereby threaten our national interests.

## Vi. Committee Recommendations

The second would extend Consistent with the above findings, the committee recommends legislation to address two jurisdictional gaps. The first would establish court-martial jurisdiction over **DoD** civilians serving with the armed forces in the field during Secretarially designated contingency operations.

federal criminal law coverage to offenses committed by civilians accompanying the forces outside U.S. territory, regardless of the presence or absence of hostilities. A draft bill is Appendix 3 .
As required by its enabling statute and charter, the committee considered establishing a special Article I court, and viewed the British and Canadian systems as potential models. The committee rejected that option as unnecessary, because present military and federal civilian courts are sufficient. In the committee's view, a new Article I court system would add expense Sands'
Conviction for murder in a More kecently, many S e e  William Is' See Sands v. Colby, *3 5*  M . J .  620 (A.C.M.R. 1992). In *Sands,* a DoD
civilian employee in Saudi Arabia was accused of murdering his wife.

status as a retired member of the Army made him subject to court-martial.

Art. 2(a) **(4)** , UCMJ, 10 U.S.C.  802(a) **( 4 ) .**  But for that coincidence, he would have been subject only to trial in Saudi court.

Saudi court carries a sentence of death by beheading.

Americans (including President Clinton) protested Singapore's caning punishment of an American teenager convicted of vandalism.

Branigin, **Singapore Reduces American's Sentence; Teen's Parents** S t i l l  Angry a t
4-Lash *E d i c t ,*  Wash. **P o s t ,**  May *5 ,*  1994, at A33.

and bureaucratic layers, but not improve on the ability of courts-martial and the Article **I11** courts to address the problemof crime by civilians accompanying the armed forces.

## A. Court-Martial Jurisdiction: Contingency Operations

The Committee recommends amendments to two articles of the To Article 2 (a)
, l S 4  the committee recommends adding a new
. Code.

paragraph
(13),11 subjecting persons serving with or accompanying forces during a contingency operation to court-martial jurisdiction. A5 amended, Article 2 (a) (13) would read:
Art. 2. Persons subject to this chapter.

(a) The following persons are subject to this chapter:
. . . . .
(13) During a contingency operaticn, civilian employees of the Department of Defense and employees of Department of Defense contractors serving with and accompanying an armed force in places outside the United States specified by the Secretary of Defense.

This amendment would also require amending Article 1 of the Codels5 to add a new paragraph defining "contingency operation."
The committee recommends incorporating a definition of
"contingency operationmm commonly used throughout the law of military operations. As amended, Article 1 would read:

## Art. 1. Definitions.

In this chapter.

. . . . .
(15) The term "contingency operation"
means the same as that term is defined at section 101(a) (13) **(A)** of this title.

Section 101 of title 10 contains definitions of terms applied throughout military law. Section 101(a) (13) defines l'contingency operation" as follows:
(13) The term "contingency operationI1 means a military operation that --
(A)
is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or
( B )
results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a),
12302, 12304, **12305,** or 12406 of this title, chapter 15 of this title, or any other provision of law during a war or during a national emergency declared by the President or Congress.

The committee's recommendation, however, uses only t h e
SecDef-designated contingency operation under subparagraph (A) .lS6
If an operation qualifies as a "contingency operation" only by operation of law under subparagraph **( B ) , I S 7**  this will have no impact on court-martial jurisdiction over DoD civilians.

-
Is' Operation UPHOLD DEMOCRACY (Haiti) is an example of a llcontingency operation" created by operation of 10 U.S.C., section 101(a) (13) (B) . McAntee Telephone Conversation.

special'
The SecDef designation of a Itcontingency operation'l already has several legal consequences. These include effects on acquisition procedures,158
accumulation of leave by military personnel,159
savings deposits of pay and allowances by military personnel,16o medical and dental care for reservists,161
payment of expenses incident to the death of civilian pay for military health language proficiency pay for military personnel,164
basic allowance for quarters and variable housing allowance for reservist~,'~~
and cash payments to military personnel for unused leave.166 The committee's recommended amendments to the **UCMJ** would add another consequence:
court-martial jurisdiction over civilians serving with or accompanying the armed forces during the contingency operation.

For this reason,
.

The committee believes this amendment should cover only DoD
civilians present with forces participating directly in a ccliit-iiiyericy operation.

'I'k c o i n i n i t  t e e  intends that such a provision not be construed to cover all civilians accompanying the forces in overseas locations just because there is a contingency operation somewhere in the world.

the committee recommendation includes two safeguards. First, the committee recommends that only a "contingency operation,Il expressly designated as such by the Secretary of Defense under section 101(a) (13) **( A ) ,**  should serve to attach court-martial The jurisdiction under the proposed new Article 2(a) (13).

committee believes that creation of a "contingency operation'' by operation of law under section 101(a) **(13)** ( B )  is not sufficiently precise to limit application of new Article 2(a) **(13)** to the areas affected by the contingency operation or to give clear notice to the personnel concerned. Second, the committee's recommendation requires SecDef to also designate the places outside the United States where civilians supporting the contingency operation will be subject to court-martial jurisdiction under new Article
2(a) **(13).** This will permit the Secretary the flexibility to include civilians participating in the contingency operation in the place that is the objective of the contingency operation, and also those directly supporting the contingency operation in other nearby places. However, this provision will also protect civilians at installations far removed from the site of the contingency operation, even though their work may have some connection to that operation.

The committee also recommends a requirement for The committee also recommends regulatory restraints on the exercise of this jurisdiction. The committee recommends exclusion of civilians from nonjudicial punishment under Article
15 of the Code,16' as the common punishments available under that article are uniquely appropriate for military personnel and would be difficult to apply to civilians, especially contractor employees.168
permission from a high-level authority before a convening authority could refer a charge for trial by court-martial.169
These restrictions should be imposed, in basic form, by the President in the Manual for Co~rts-Martia1.l~~
The Secretary of Defense and Service Secretaries may supplement these restrictions by Department of Defense directive and Service regulations.

## 10 U.S.C. 5 815.

See 10 U.S.C. 5 815(b) (21, especially correctional custody, forfeiture and detention of pay, and reduction in grade.

..-
Beyond the exclusion of nonjudicial punishment, the committee does not make detailed recommendations for these restrictions.

The committee believes the matter is best left to the discretion of the Secretaries concerned, after study by the Joint Service Committee on Military Justice.'''
New Article 2(a)(13) of the Code would represent a strictly limited exercise of court-martial jurisdiction over civilians that is justified by military necessity. Such jurisdiction is t ; r ~ n r ; j r ; k c r i t  with t h e  C o n a t - i t u t i o n ,  and does not subject civilians to military authority beyond what is necessary for the accomplishment of a specific mission.

## 1. Constitvtiouty Of Ne W **A R W E**  2(G) (13)

The notion behind new Article 2(a) **(13)** -- that courtsmartial may, consistent with the Constitution, try civilians under certain circumstances -- is not a novel one in American jurisprudence. Historically, military jurisdiction has been lawfully exercised over civilians accompanying the military ''in the field" during hostilities. In his highly regarded treatise on military law, William Winthrop stated that "the application of the [former] Article [of War that addressed jurisdiction over civilians] is confined both to the period and pendency of war and
.-to acts committed on the theater of war."17* Provisions for jurisdiction over civilians serving in the field were continually present in the Articles of War from 1775 to 1950, when the Uniform Code of Military Justice was adopted.

Military jurisdiction over civilians has been upheld by the courts, for civilians accompanying the armed forces in the field, for offenses committed in both times of declared **w a r**  and in situations involving hostilities short of declared w a r ,  such as the Indian Wars. At the same time it has condemned peacetime courts-martial of civilians, the Supreme Court has commented favorably on this historical exercise of military jurisdiction over civilians during undeclared hostilities:
To be sure, the 1872 opinion of the Attorney General, dealing with civilians serving with troops in the building of defensive earthworks to protect against threatened Indian uprisings, is entitled to some weight . . . . [  Llike other examples of frontier activities based on the legal concept of troops being "in the field,"
. . . **[t]** hey were i n  time of "hostilities"
with the Indian tribes ....

tf 173
While the Averette There is nothing in the pertinent judicial opinions on military jurisdiction that undermines this historical precedent.

While *R e i d*  v.

and its progeny establish the constitutional principle that civilians cannot be subjected to trial by court-martial in time of peace, the Supreme Court has not excluded the exercise of military jurisdiction over civilians accompanying the forces during war or other hostilities.

The Court of Military Appeals in Averette construed Article 2(a) (10)
of the Code to support court-martial jurisdiction over civilians only during a congressionally declared war.

court construed Article 2(a) **(10)** against a constitutional backdrop of limiting military jurisdiction over civilians, the case nonetheless remains one of statutory construction - -  one that may be affected by Act of Congress. Accordingly, the Reid v. Covert line of cases and dverette present no obstacle to the enactment of a new Article 2(a) **(131,** as this committee recommends.

Major Susan Gibson, in her recent law review article,175
provides a blueprint f o r  the constitutional analysis supporting the committee's recommendation for a new Article 2(a) **(13).** Major Gibson demonstrates that military jurisdiction over civilians may be constitutionally extended to include situations involving civilians deploying with the forces during contingency operations, even when actual combat has not occurred. As Major Gibson points out, the Supreme Court has established strict military necessity as the guiding principle that serves both as the source and the limit of military jurisdiction over civilians:
[Mlilitary tribunals must be restricted
"to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service, [citation omitted]
As described by Major Gibson, the Supreme Court has applied a necessity doctrine more than once in our history to uphold exercises of power by the President and Congress in the interest of national security, even when such exercise m a y  have limited individual rights.

The principle of military necessity fully applies to support court-martial jurisdiction over civilians serving with U.S.

forces during contingency operations. As discussed by Major Gibson, misconduct by civilians accompanying the forces during any contingency operation (whether or not involving actual fighting) can have a significant adverse effect on troop effectiveness and morale and, therefore, on mission accomplishment; accordingly, court-martial jurisdiction over civilians in limicd circumstances is justified by military necessity. Major Gibson emphasizes that the exercise of military jurisdiction in such situations would be limited in scope and time: few civilians would be covered and contingency operations are, by definition, of limited duration. I n  s h o r t ,  the exercise of military j u r i s d i c t i o n  is k t h  **defined** and limited I-\*
t - l i e
- -

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(ig74), and Youngstown Sheet and Tube v. *Sawyer,* 343 U.S. 579 (19521.

This analysis is bolstered by The committee agrees with Major Gibson's constitutional analysis for the exercise of military jurisdiction over civilians during contingency operations.

features of the committee's recommendation that ensure the exercise of such jurisdiction will be limited to circumstances of strict military necessity. These features are the application of new Article 2(a) (13) only to operations expressly designated by SecDef as "contingency operations" and then only in specified places, and the recommendations for regulatory restrictions against nonjudicial punishment and requiring permission from a high-level authority before a charge against a civilian could be referred to trial by court-martial.

The committee's specific recommendations are In summary, the Supreme Court has set out military necessity as the guiding principle that both justifies and limits courtmartial jurisdiction under the Constitution. Because of the important role of civilians serving with U.S. forces during contingency operations, court-martial jurisdiction over such civilians is fully supported by the principle of military necessity.

consistent with the Supreme Court's guidance that military jurisdiction must be limited by the circumstances that give rise T o  it, that is, by military necessity. Accordingly, the committee believes the iimited application of court -martial jurisdiction to civilians represented in new Article 2 (a) (13)
w i l l  pass constitutional muster.

## 2. Policv Concerns

restrictions on the exercise of the recommended jurisdiction.

The committee also considers it essential that all civilian government or contractor employees, w h o  would accompany U.S.

forces in the field on Secretarially designated contingency operations, be notified of possible court-martial jurisdiction before deployment and receive training on the UCMJ similar to that given military personnel.179
The American public also has a rightful American citizens are right to be wary of military authority over civilians.

expectation that its armed forces will be employed effectively, and Congress will give our commanders the legal tools necessary to carry out their mission and protect our forces.

## B. Federal Jurisdiction: Peacetime Settings

Although the committee's activities focused on "armed conflict," Congress also empowered the committee to tt[dlevelop additional recommendations as the committee considers appropriate as a result of the review.1t18o The committee considers it appropriate to recommend legislation to close a second jurisdictional gap concerning offenses in a peacetime setting by civilians accompanyin2 the American military overseas.

Three factors influenced the committee's decision to address the issue of criminal jurisdiction during peacetime. First, criminal acts by **DoD** civilians overseas dur-ing peacetime has been a historical source of injustice and has undermined order and morale in overseas military organizations and communities.

Peacetime offenses produced *R e i d*  v. Covert and its progeny, and prompted most of the academic articles on this subject. Second, most of the legislative proposals over the years, including the
-
current proposal by the Department of Justice, address criminal jurisdiction over civilians in a peacetime setting. Finally, the recommendations of the Services and Combatant Commands focus on the need for criminal law jurisdiction over civilians accompanying the military overseas, regardless of whether hostile conditions exist. Indeed, a majority of United States Attorneys has acknowledged this need. Accordingly, the committee believes
+
additional recommendations that address peacetime misconduct would better serve Congress and, ultimately, the nation.

The committee has considered the various legislative proposals introduced in recent years and adopts the present Justice Department proposal as its recommendation, with one additional provision.

the committee's draft bill at Appendix 3 .
This proposal has been incorporated into The Justice Department proposal would create a new chapter
212 to title 18, United States Code, entitled "Criminal Offenses Committed Outside the United States." This new chapter features a new section 3261, which would punish offenses committed by a civilian accompanying the armed forces in a foreign country, if the act would be an offense punishable by imprisonment for more than one year if it had been committed within the special maritime and territorial jurisdiction of the United States.lB1
The Justice Department proposal would also address offenses committed in foreign territory by military members, whose military status ends before they can be prosecuted at courtsmartial . le2
-
In modern At one time in our history, this legislation may have generated controversy as an unprecedented extension of federal criminal law beyond the borders of the United States.

times the proposal represents a logical step in Congress' move to apply United States law whenever it is in the national interest to do so. Extraterritorial application of criminal statutes is New section 3261 would also punish such See *United* **States** ex rel. *7'0th* v.

offenses committed by "persons formerly serving with . . . the armed forces outside the United States." This provision would address another longstanding issue in military/civilian criminal law -- jurisdiction over a crime committed by a servicemember in a foreign country, but not prosecuted until after the member separates from the military.

Quarles, 350 U.S. 1 (1955).

The need for legislation to close this gap is both constit~tional~~~
acd, over the years, has become cornmon.le4
However, there is a jurisdictional gap for many common and serious crimes for which civilians accompanying the forces overseas escape punishment unless the host country chooses to prosecute.185
something on which commentators, the General Accounting Office, military commanders, United States Attorneys, and now this committee have all agreed. The committee believes the Justice Department's proposal meets this need.

As previously discussed in this report, any extraterritorial application of U.S. law must be consistent with international law. Five grounds are traditionally recognized by international law as justifying an extraterritorial application of a nation's criminal laws: territorial, based on the place where an offense is committed, or where its effects are intended or felt;
national, based on the nationality of the person committing the crime; protective, based **or?** a particular offense's threat to the national interest, such as counterfeiting and espionage;
universal, based on the nature of certain crimes considered to be particularly heinous and harmful to humanity, such as slavery and piracy; and passive personality, based on the nationality of the victim of an offense . lE6
Blackmer v. *United S t a t e s ,*  284 U.S. 421 (1932); **United S t a t e s**  v. *Bowman,* 260
'
U.S. 94 (1922); United S t a t e s  v .  *King,* **552** F.2d **833** (9th Cir. 1976); United States v .  Aluminum Company of America *(ALCOA),* 148 F.2d **416** (2d Cir. 1945);
Y u n i s .
See *also* Becker at **288** ("[Tlhe ability of Congress to apply United States law abroad appears to be a firmly rooted constitutional principle").

Is'
As discussed earlier, the committee analyzed U.S. criminal statutes for extraterritorial application. The comtxittee found a score of offenses which Congress expressly made extraterritorial (see, *e . g . ,*  18 U.S.C. 5 1119 (murder of U.S. national); 18 U.S.C. 5 **1956** (money laundering)), and many more where Congress' intent to do so may be inferred from the statute (see, *e . g . ,*  18
U.S.C. 5 **844(f)** (damage to government building); 21 U.S.C.  **841** (drug offenses) I .
''' See Becker at 294-95;
McClelland at 180-82;
GAO Report at ii, 4 - 8 .
RESTATEMENT (THIRD) OF FOREIGN **RELATIONS** LAW OF THE UNITED STATES I 402, 5 402
commentary (1987); *Yunis,* 681 F.Supp at 8 9 9 - 9 0 0 .
See also "Harvard Research in International **Law** With Respect to Crimes," 29 *AM.* J. INT'L
L. SUPP. 435
(continued ...)
Such The United States Moreover, the United States has a clear basis The proposed legislation is intended primarily to apply to U.S. citizens or nationals serving with, employed by or accompanying the armed forces outside the United States.

persons constitute the vast majority of DoD civilians in the circumstances under consideration and, because they lack host country nationality, their crimes are most likely to fall within the jurisdictional gap identified by the committee (i.e.,.not to be prosecuted by host country authorities).

has the clearest responsibility for ensuring that such crimes do not go unpunished.

under international law for extending its criminal law to the actions of its nationals
-
overseas, and Congress has already done so on several recent occasions.

Not all **DoD** civilians overseas are U.S. nationals, however.

The Justice Department proposal would exclude host country nationals from the definition of persons "employed by the armed forces outside the United States" in proposed section 3264
(1) (iii). The committee agrees with this approach. In most.

situations, the relevant status of forces agreement will address the respective competencies of U.S. and host country authorities to deal with criminal activity by their nationals. Even where there is no SOFA, host country nationals are not likely to escape punishment by their own criminal justice authorities, and an effort by the United States to assert extraterritorial criminal jurisdiction over their actions within their own country could well cause unnecessary conflicts of jurisdiction and other difficulties. The committee believes that the same exclusion should be incorporated into the definitions of a person "employed by the armed forces outside t h e  United States" and a person
"accompanying the armed forces octside the United States" at new section 3264. The committee has therefore revised the Department of Justice's language at subparagraph (iii) of new section
3264 **(I),** and added a corresponding subparagraph **(iii)** to new section **3264(2),** to exclude from those definitions a person who Ifis not a national of or ordinarily resident in the host nation."
While they are likely to be comparatively few in The issue of third country nationals poses greater difficulties.

number, third country nationals serve with U . S .  armed forces abroad, are employed by DoD contractors, and, perhaps most frequently, accompany U.S. service members as resident dependents. Their criminal misconduct can be just as disruptive as that of U . S .  nationals, and where no status of forces arrangement exists, may be equally likely to go unpunished by the local authorities. The authority of the United States under international law to assert criminal jurisdiction over the acts of third country nationals in host countries may be challenged.

Nonetheless, in the view of the committee, the exercise of such jurisdiction could be justified when such individuals are present in the foreign jurisdiction because of their association or affiliation with the U . S .  armed forces and when, but for unpunished. The committee has in mind, for example, the situation of a crime committed by the spouse of a DoD contractor, neither of whom has either U.S. or host country nationality but
:
prosecution by U.S. authorities, their crimes would go who are both in the host country only by virtue of their association with the U.S. forces.

The committee therefore proposes that the Justice Department give additional consideration to this aspect of its proposed legislation by providing guidance to U . S .  Attorneys that third country nationals should be subject to the extraterritorial application of the U.S. criminal law only in those circumstances where they are present in the host country because of their direct affiliation with U.S. forces. The committee also recommends that the Department of Defense ensure such individuals receive appropriate notice of their responsibilities and the possibility that criminal activity in the host country could be the subject of prosecution under United States law.

Existing law adequately Jurisdiction for crimes committed outside U.S. territory also raises issues of criminal procedure, specifically, venue, arrest power, and magistrate hearings.

deals with venue, and the Justice Department's proposed legislation addresses arrest power. However, the committee
'<
- recommends an addition to that proposal to cover an important issue involving a defendant's initial appearance before a federal magistrate.

Section **3238** of title 18, United States Code, governs venue for crimes committed outside any state or district. This statute provides that venue in such cases will be in the district where a defendant is arrested or first brought or, if a defendant is not arrested or brought into any district, venue will be the district of a defendant's last known residence or, if no residence is known, the District of Colombia. These rules have proven satisfactory for the prosecution of other extraterritorial violations of federal law. The committee does not recommend special venue rules for offenses outside U.S. territory by civilians accompanying the armed forces.

Concerning arrest power, the Department of Justice proposal includes authority for the Secretary of Defense to designate Department of Defense (DoD) law enforcement personnel to make arrests of persons covered by the new statute. However, the Department of Justice proposal would require **DoD** personnel to release such persons to the custody of civilian law enforcement authorities for removal to the United States, unless they are delivered to host country authorities or prosecuted under the UCMJ. The committee believes these provisions give adequate powers to military authorities to enforce the law, while properly requiring transfer of civilian arrestees to civilian authorities as soon as is practicable.

The Justice Department proposal does not address one important procedural issue, the initial appearance and probable cause determination by a magistrate where there has been an arrest without a warrant. The Supreme Court has held the Fourth Amendment requires such a hearing.lBB Further, the Court has held the hearing must occur within 48 hours of a warrantless arrest, absent a showing of emergency or extraordinary circumstance~.~~~
This 48-hour requirement presents a practical problem, unless the
~
_ _  --
courts are willing to consider the foreign origins of the case as
''extraordinary circumstances."
Although not Often, persons arrested by military authorities for crimes in foreign countries will not be able to appear before a United States magistrate within 48 hours, given the rnilitary/civil coordinations, distances, and time zones involved. The committee believes that Congress should express its will that the courts consider these factors as "extraordinary circumstances" in judging any failure to meet the 48-hour standard.

controlling on the outcome of a case, t h e  committee believes such an expression will be persuasive. Accordingly, the committee recommends an additional paragraph to section 3261(d) of the Justice Department's proposal:
The arrest of a person outside the
( 3 )
United States by a person designated under paragraph (1) of this section, and the removal of the arrested person to the United States under paragraph **(2)** of this section, are extraordinary circumstances justifying delay in bringing the arrested person before a magistrate as required by the Fourth Amendment to the United States Constitution and Rule 5 of the Federal Rules of Criminal Procedure.

## Vii. Conclusion

Although Since then, it has been up to Congress to consider The problem of criminal conduct by civilians accompanying the armed forces in foreign countries has been with us since the end of World War I1 and the start of the Cold War.

Congress addressed the problem when it first adopted the UCMJ in
1950, the Supreme Court invalidated the peacetime application of these provisions in the line of cases beginning with R e i d  v.

Covert.

extending the jurisdiction of the civilian federal courts. In the almost **4 0**  years since R e i d  *v .*  Covert, there have been many legislative initiatives, but none has been enacted. As a result, U.S. authorities have been left with only administrative tools to deal with much of the civilian crimes committed within military communities overseas. These may be adequate for minor offenses, but serious crimes warrant prosecution in a criminal court. If the host country does not prosecute, the offender goes unpunished unless there is an extraterritorial statute vesting a United States court with jurisdiction.

To maintain order and discipline in their Since World War 11, the role of the American military also has changed. The American tradition of a small standing army and navy, which are augmented during times of declared war, has given w a y  to large, forward deployed land, sea, and air forces.

Instead of declared wars, these forces fight undeclared regional wars, and deploy to hostile environments in what are now called
"contingency operations.lI Dgring these operations, United States forces have come to rely on civilian employees and contractors to deploy with them.

fighting forces, commanders must have the legal tools to address crimes committed by these civilians. For serious matters, mere administrative sanctions will not suffice. Military law, which only attaches court-martial jurisdiction to civilians in time of Ilwar," has failed to keep pace with these changes.

With the additional regulatory restrictions The The committee's proposals fill these jurisdictional voids, but do not go beyond what is needed to solve the problems.

Congress and the American people should not fear abuse of the jurisdiction recommended in this report. The proposed courtmartial jurisdiction over civilians during those military operations, expressly designated by the Secretary of Defense as
"contingency operations," is limited and tied directly to military necessity.

recommended by the committee, and the good judgment of field commanders acting on advice of their legal counsel, the committee is confident this power will be used judiciously.

recommended extension of federal jurisdiction is a logical continuation of Congress' determination to apply American criminal law to overseas activities by American nationals. By its terms, this proposal is limited to serious offenses. This limitation, the logistical difficulties attendant to any prosecution under this proposal, and the sound prosecutorial discretion of United States Attorneys, will combine to confine the exercise of this jurisdiction to appropriate cases.

The committee recognizes the controversy associated with these issues, especially the notion of court-martial jurisdiction over civilians, no matter how limited and justified it may be.

Accordingly, the committee requests that the Congress consider its recommendations as distinct. If the Congress declines to adopt one recommendation, it should still consider the other.

By establishing this committee, Congress has recognized the need for a comprehensive study of a longstanding problem for U.S.

'authorities and source of injustice for American society. The committee's review has revealed a remarkable degree of consensus among the Services, Combatant Commands, the Department of Justice, and the United States Attorneys in support of legislation. The committee respectfully submits this report, and hopes it will persuade Congress also to recognize the need for this legislation.

/
.

    "(C) An order or ruling which directs the disclosure of clas-
sified information.
    "(D) An order or ruling which imposes sanctions fcr
nondisclosure of classified information.
    "(E) A refusal of the military judge to issue a protective
order sought by the United States to prevent the disclosure of
classified information.
    "(F) A refusal by the military judge to enforce an order de-
scribed in subparagraEh (E) that has previously been issued by
appropriate authority. .
(b) DEFINITIONS.~ection 801 (article 1) is amended by inserting after para aph (14) the followin new paragraphs:
                                                          B
        "(15) Fhe term 'classified in P ormation' means (A) an information or material that has been determined by an o icial of
the United States pursuant to law, an Executive order, or reg-
ulation to require protection against unauthorized disclosure
for reasons of national security, and (B)
                                      any restricted data, as
defined in section ll(y) of the Atomic Energy Act of 1954 (42
U.S.C. 2014(y)).
   "(16) The term 'national security' means the national de-
fense and foreign relations of the United States.".

## Judges For Temporary Service On Court Of Ap- Sec. 1142. Repeal Of Termination Of Authority For Chief Jus- Tice Of The United States To Designate Article I11 Peals **For** The Armed Forces. Subsection **!I)** Of Section 1301 Of The National Defense Authorization Act For **Fiscal** Years 1990 And 1991 (Public **Law** 101-189; 10 **U.S.C.** 942 Note) Is Repealed. Subtitle E-Other Matters Sec. 1151. Advisory Committee On Criminal Law Jurisdiction Over *Cmlians* Accomp-G The Arhfed Forces In Time Of Armed Conflict. (A) Es"Ablishment.-Not Later Than 45 Da A After The Date Of

the enactment of this Act, the Secre
                                      of De P
                                            ense and the Attor-
ney General shall jointly appoint an 7
                                   a visoly committee to review

and make recommendations concerning the appropriate forum for
criminal 'urisdiction over civilians accompanying the Armed Forces

in the fie i d outside the United States in time of anned conflict.

    (b) MEMBERSHIP.-The
                          committee shall be composed of at least
five individuals, including experts in military law, international
law, and Federal civilian criminal law. In making appointments to
the committee, the Secretary and the Attorney General shall en-
sure that the members of the committee reflect diverse experiences
in the conduct of prosecution and defense functions.
   (c) DUTIES.-The
                    committee shall do the following:
       (1) Review historical experiences an-
                                                        practices
   concerning the use, training, discipline, and functions of civil-
   ians accompanying the Armed Forces in the field.
       (2) Based upon such review and other lnfonnation avail-
   able to the committee, develo specific recommendations con-
   cerning the advisability and gasibility of establishing United
   States criminal law jurisdiction over persons who as civilians

    accompany the Armed Forces in the field outside the United
    States during time of armed conflict not involving a war de-
    clared by Congress, including whether such jurisdiction should
    be established through any of the following means (or a com-
    bination of such means depending upon the degree of the
    armed conflict involved):
           (A) Establishing court-martial jurisdiction over such
        persons.
           (B) Extending the jurisdiction of the Article I11 courts
       to cover such persons.
           (C) Establishing an Article I court to exercise criminal
       jurisdiction over such persons.
       (3) Develop such additional recommendations as the com-
    mittee considers appropriate as a result of the review.
    (d)  REPORT.^^) Not later than December 15, 1996, the advi-
sory committee shall transmit to the Secretary of Defense and the
Attorney General a report setting forth its findings and rec-
ommendations, including the recommendations required under sub-
section (cI(2).
    (2) Not later than January 15, 1997, the Secretary of Defense
and the Attorney General shall jointly transmit the report of the
advisory committee to Congress. The Secretary and the Attorney
General may include in the transmittal any joint comments on the
report that they consider appropriate, and either such oficir: may
include in the transmittal any separate comments on the report
that such official considers appropriate.
    (e) DEFINITIONS.-For purposes of this section:
       (1) The term "Article I court" means a court established
 . under Article I of the Constitution.
       (2) The term u&ticle 111 court" means a court established
   under Article III of the Constitution.
   (f) TERMINATION OF COMMlTTEE.-The
                                         advisory committee
shall terminate 30 days after the date on which the report of the
committee is submitted to Congress under subsection (d)(2).
SEC. 1152. TIME AFTER ACCESSION FOR IMTIAt INSIlRUCTION IN
          THE UNIFORM CODE OF MILITARY JUSTICE.
   Section 937(aX1) (article 137(aX1)) is amended by striking out
"within six days" and inserting in lieu thereof "within fourteen
days".
SEC. 1153. TECHNICAL AMENDMENT.
   Section 866(0 (article 66(f)) is amended by striking out "Courts
of M i l i k y  Review" both places it appears and inserting in lieu
thereof ''Courts of Criminal Appeals".

GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE
             1600 DEFENSE PENTAGON
           WASHINGTON, D. C. 20301-1600

[I 4 MAY 1995

GENERAL COUNSEL

# Memorandum For Members, Overseas Jurisdiction Advisory Committee Subject: Charter F O R  Overseas Jurisdiction Advisory Committee

On behalf of the Secretary of Defense and the Attorney General, I express appreciation to you for accepting the invitation to serve on the Overseas Jurisdiction Advisory Committee, formed pursuant to section 1151 of the National Defense Authorization Act for Fiscal Year 1996 (Pub. L. No. 104-
106). Section 1151 requires the Secretary of Defense and the Attorney General jointly to appoint a committee of at least five persons to review and make recommendations concerning criminal jurisdiction over civilians accompanying the Armed Forces outside the United States in time of armed conflict. Specifically, section 1151(c) tasks the committee to do the following:

(1) Review historical experiences and current
practices concerning the use, training, discipline, and
functions of civilians accompanying the Armed Forces in
the field.
Based upon such review and other information
(2)
available to the committee, develop specific
-----
-recommendations concerning the advisability and
-.
feasibility of establishing United States criminal law
jurisdiction over persons who as civilians accompany
the Armed Forces in the field outside the United States
during time of armed conflict not involving a war
declared by Congress, including whether such
..
jurisdiction should be established through any of the
following means (or a combination of such means
depending upon the degree of armed conflict involved):
(A) Establishing court-martial jurisdiction over such persons.

(B) Extending the jurisdiction of the Article I11
courts to cover such persons.

(C) Establishing an Article I court to exercise
criminal jurisdiction over such persons.
Develop such additional recommendations as the
( 3 )
committee considers appropriate as a result of the review.

Besides Your analysis should include f u l l
Section 115l(d) requires that the committee submit its report to the Secretary of Defense by December 15, 1996.

the above recommendations, please offer proposed legislative language, modifications to the Manual for Courts-Martial or Federal Rules of Criminal Procedure, and other guidance you believe is appropriate.

consideration of the proper balance of the rights of victims and defendants, the needs of the armed forces, and United States relations with host nations, to include applicable internationaltreaties and agreements.

You should also consider alternatives to the Only if and to the extent you
..-
Of particular importance is whether any extension of criminal jurisdicticn is necessary. Initially, you should decide if there is a problem and, if so, what it is. If you identify a problem, you should consider whether criminal jurisdiction is the way to solve it.

criminal jurisdiction solution.

find a problem, and determine criminal jurisdiction is the best solution, should you then consider the proper means for extending jurisdiction.

The Secretary of Defense and the Attorney General are required jointly to transmit the committee's report to Congress by January-15, 1997, along with any joint comments they consider appropriate. The committee will end 30 days after submission of its report to Congress.

We appreciate your willingness to contribute to t h i s
-
important project.

point of contact for this committee.

Colonel Thomas G. Becker, of my staff, is my His telephone number is
(703) 695-1055.

To establish court-martial jurisdiction over civilians serving with the armed forces during contingency operations, and to establish federal jurisdiction over crimes committed outside the United States by former members of the armed forces and civilians accompanying the armed forces outside the United States.

B e  i t  enacted by the Senate and **House** of Representatives of
1
the U n i t e d  States of *America* i n  Congress assembled,
2
3
4
SECTION 1. SHORT TITLE.
5
"Military
--
and Extraterritorial This Act **may** be cited as the
7
Jurisdiction Act of 1997".

8

## Sec. 2. Findings.

9
10
(a) The Congress finds that
--
11
12

(1) Civilian employees
13
of the Department of Defense, and civilian employees of Department of--Defense contractors,
14
15
provide critical **support** to armed forces deployed
-
during a
16
contingency operation;

1
(2) Misconduct by such persons undermines good order
and discipline in an armed force, and jeopardizes the mission of
2
the contingency operation;
3
4
(3) Military commanders need the legal tools to
5
address adequately misconduct by civilians serving with armed
6
7
forces during a contingency operation;
8
( 4 )
In its present state, military law does not permit
9
--
military commanders to address adequately misconduct by civilians
10
serving with armed forces, except in time of a congressionally
-
declared war;
12
13
14
( 5 )  To address this need, the Uniform Code of Military
Justice **should** be amended to provide for court-martial
15
jurisdiction over civilians serving with armed fcrces in places
16
17
designated by the Secretary of Defense during a "contingency
operation'' expressly designated as such by the Secretary of
18
Defense; and
19
20
(6) This limited extension of court-martial
31
within the Congress' constitutional powers to make rules for the

1
government of the armed forces, and, therefore, is consistent

2
with the Constitution and American public policy.

3
4
5
(b) The Congress further finds that --
6
7
(1) Many thousand civilian employees of the Department
of Defense, civilian employees of Department of Defense
8
.contractars, and civilian dependents accompany the armed forces
-
9
to installations in foreign countries;
10
12
(2) Misconduct among such civilians has been a
longstanding problem for military commanders and other United
13
States officials in foreign countries, and threatens United
14
States citizens, United States property, and United States
15
16
relations with host countries;
17
18
( 3 )
In its present state, federal criminal law does
19
not cover many offenses committed outside the United States by
20
such civilians and, because host countries often do not prosecute
3.1
such offenses, serious crimes often go unpunished; and
1
2
( 4 )
To address this jurisdictional gap, federal law
3
should be amended to punish serious offenses committed by such
-
4
civilians outside the United States, to the same extent as if
5
those offenses were committed within the special maritime and
6
territorial jurisdiction of the United States.
7
8
(c) The Congress f u r t h e r  finds that --

9
10.
(1) Federal law does not cover-many crimes committed
outside the United States by members of the armed forces who then
separate from the armed forces before they can be identified,
12
13
thus preventing court-martial jurisdiction *(see United States* ex .
14
rel. Toth v. *Quarles,* **350** U.S. 1 **(1955));** and
- .
15
16
(2) To address this jurisdictional gap, federal law
17
should be.amended to punish serious offenses committed by such
18
persons outside the United States, to the same extent as if those
19
offenses were committed within the special maritime and
_.-.
20
territorial jurisdiction of the United States.

## Sec. 3. Court-Martial Jurisdiction.

1
(a
)
JURISDICTION DURING
CONTINGENCY
OPERATIONS. - - Sect ion 8
02 (a)
2
of title **10,** United States Code (article 2(a), Uniform Code of
3
Military Justice), is amended by inserting after paragraph (12)
4
the following:
5
6
11(13) During a contingency operation, civilian employees 05
-
7
the Department of Defense and employees of Department of Defense
8
contractors serving with and accompanying an armed force in
9
places outside the United States specified by the Secretary of
10
Defense . .
12
(b) DEFINITION.
-- Section 801 of title 10, United States
-.
13
Code (article 1, Uniform Code of Military Justice), is amended by
14
inserting after paragraph **(14)** the following:
15
16
11(15) The term llcontingency
operationI1 means the same as
17
that term is defined at section 101(a) (13) **(A)** of this title.".

18

## 19 Sec. 4 . Federal Jurisdiction.

20
71
(a) CRIMINAL OFFENSES C
m
~
m

OUTSIDE
THE **UNITED** STATES. - - Title
18, United States Code, is amended by inserting after chapter 211
the following:

1
2
3

## "Chapter 212 - Criminal Offenses Committed Outside The

4

## United States

5
6
''5 3261. Criminal offenses committed by persons formerly
serving with, or presently employed by or accompanying, the armed

7
8
forces outside the United States

9
ll(a) Whoever, while serving with, employed by, or
10
accompanying the armed forces outside the United States, engages
in conduct which would constitute an offense punishabfe by
12
imprisonment for more than one year if the conduct had been
13
engaged in within the special maritime and territorial
14
jurisdiction of the United States, shall be guilty of a like
15
16
offense and subject to a like punishment.
,-
. _  .
17
18
\.
"(b) Nothing contained in this chapter deprives court\.s-
martial, military commissions, provost courts, or other military

19
tribunals of concurrent jurisdiction with respect to offenders or
20
21
offenses that by statute or by the law of war may be tried by
courts-martial, military commissions, provost courts, or other
1
military tribunals.
2
3
"(c) No prosecution may be commenced under this section if
4
a foreign government, in accordance with jurisdiction recognized
5
by the United States, has prosecuted or is prosecuting such
6
person for the conduct constituting such offense, except upon the
7
approval of the Attorney General of the United States or the
8
Deputy Attorney General of the United States (or a person acting
9
in either such capacity), which function of approval may not be
10
delegated.
12
"(d) **(1)** The Secretary of Defense may designate and
authorize any person serving in a law enforcement position in the
13
14
Department of Defense to arrest outside the United States any
15
person described in subsection (a) of this section who there is
16
probable cause to believe engaged in conduct which constitutes a
17
criminal offense under such section.
.---
18
19
"(2) A person arrested under paragraph **(1)** of this
20
section shall be released to the custody of civilian law
3.1
enforcement authorities of the United States for removal to the
United States-for judicial proceedings in relation to conduct
referred to in such paragraph unless - -

1
2
" ( A )
such person is delivered to authorities of a

3
4
foreign country under section 3262 of this title; or

5
"(B) such person has had charges preferred against

6
him under chapter **4 7**  of title 10 for such conduct.

7
8
( ' ( 3 )  The arrest of a person outside the United States

9
by a person designated under paragraph **(1)** of this subsection,

10
and the removal of the arrested person to the United States under paragraph (2) of this subsection, are extraordinary circumstances

12
justifying delay in bringing the arrested person before a
13
magistrate as required by the Fourth Amendment to the United
14
States Constitution and the Federal Rules of Criminal Procedure.

15
16
"   **3262.** Delivery to authorities of foreign countries.

17
18
/
"(a) *Any* person designated and authorized under section
19
3261(d) of this title may deliver a person described in section
20
3261(a) of this title to the appropriate authorities of a foreign country in **which** such person is alleged to have engaged in conduct described in subsection (a) of this section if --
- 1
2

"(1) the appropriate authorities of that country
3

request the delivery of the person to such country for trial for
4
such conduct as an offense under the laws of that country; and
5
6
7
"(2) the delivery of such person to t h a t  country is
8
authorized by a treaty or other international agreement to which
the United States is a party.
-
9
10
"(b) The Secretary of Defense shall determine what officials of a foreign country constitute appropriate authorities
12
13
for the purpose of this section.

14
15
" 5  3263. Regulations.

16
17
"The Secretary of Defense shall issue regulations governing the apprehension, detent,ion, and removal of persons under this
18
19
chapter.

Such regulations shall be uniform throughout the
- .'
Department of Defense.

-
20
71
fi **3264.** Definitions for this chapter.

1
"AS used in this chapter --
2
"(I) a person is "employed by the armed forces outside
3
4
the United Statest1
if he or she --
5
6
l*(i) is employed as a civilian employee of a military department or of the Department of Defense, as a
7
a Department of Defense contractor, or as an employee of a
.-
Department of Defense contractor;
9
10
"(ii) is present or residing outside the United States in connection with such employment; and
12
13
"(iii) is not a national of or ordinarily resident
14
15
in the host nation.

16
11(2) a person is "accompanying the armed forces outside
17
18
&*
the United States" if he or she --
19
20
"(i) is a dependent of a member of the armed forces, is a dependent of a civilian employee of a military
71
-4i department or of the Department of Defense,-is a dependent of a

1
Department of Defense contractor, or is a dependent of an
employee of a Department of Defense contractor;
2
3
4
"(ii) is residing with such member, civilian
5
employee, contractor, or contractor employee outside the United
6
States; and
7
8
"(iii) is not a national of or ordinarily resident
in the host nation.".
9
10
(b) CLERICAL
AMENDMENT. -- The table of chapters at the beginning of part I1 of title 18, United States Code, is amended
___---
-
12
13
by inserting after the item relating to chapter **211** the
14
following:
15
16
"212. **Criminal Offenses Committed Outside the United States** ........ 3261".

17
18
1
19
20
21