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[106th Congress Public Law 523]
[From the U.S. Government Printing Office]

<DOC>
[DOCID: f:publ523.106]

[[Page 2487]]

           MILITARY EXTRATERRITORIAL JURISDICTION ACT OF 2000

[[Page 114 STAT. 2488]]

Public Law 106-523
106th Congress

                                 An Act

 
To amend title 18, United States Code, to establish Federal jurisdiction 
over offenses committed outside the United States by persons employed by 
or accompanying the Armed Forces, or by members of the Armed Forces who 
are released or separated from active duty prior to being identified and 
     prosecuted for the commission of such offenses, and for other 
             purposes. <<NOTE: Nov. 22, 2000 -  [S. 768]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress <<NOTE: Military Extraterritorial 
Jurisdiction Act of 2000.>> assembled,

SECTION 1. <<NOTE: 18 USC 3261 note.>> SHORT TITLE.

    This Act may be cited as the ``Military Extraterritorial 
Jurisdiction Act of 2000''.

SEC. 2. FEDERAL JURISDICTION.

    (a) Certain Criminal Offenses Committed Outside the United States.--
Title 18, United States Code, is amended by inserting after chapter 211 
the following new chapter:

          ``CHAPTER 212--MILITARY EXTRATERRITORIAL JURISDICTION

``Sec.
``3261.  Criminal offenses committed by certain members of the Armed 
           Forces and by persons employed by or accompanying the Armed 
           Forces outside the United States.
``3262.  Arrest and commitment.
``3263.  Delivery to authorities of foreign countries.
``3264.  Limitation on removal.
``3265.  Initial proceedings.
``3266.  Regulations.
``3267.  Definitions.

``Sec. 3261. Criminal offenses committed by certain members of the Armed 
                        Forces and by persons employed by or 
                        accompanying the Armed Forces outside the United 
                        States

    ``(a) Whoever engages in conduct outside the United States that 
would constitute an offense punishable by imprisonment for more than 1 
year if the conduct had been engaged in within the special maritime and 
territorial jurisdiction of the United States--
            ``(1) while employed by or accompanying the Armed Forces 
        outside the United States; or
            ``(2) while a member of the Armed Forces subject to chapter 
        47 of title 10 (the Uniform Code of Military Justice),

shall be punished as provided for that offense.
    ``(b) No prosecution may be commenced against a person under this 
section if a foreign government, in accordance with jurisdiction 
recognized by the United States, has prosecuted or is prosecuting

[[Page 114 STAT. 2489]]

such person for the conduct constituting such offense, except upon the 
approval of the Attorney General or the Deputy Attorney General (or a 
person acting in either such capacity), which function of approval may 
not be delegated.
    ``(c) Nothing in this chapter may be construed to deprive a court-
martial, military commission, provost court, or other military tribunal 
of concurrent jurisdiction with respect to offenders or offenses that by 
statute or by the law of war may be tried by a court-martial, military 
commission, provost court, or other military tribunal.
    ``(d) No prosecution may be commenced against a member of the Armed 
Forces subject to chapter 47 of title 10 (the Uniform Code of Military 
Justice) under this section unless--
            ``(1) such member ceases to be subject to such chapter; or
            ``(2) an indictment or information charges that the member 
        committed the offense with one or more other defendants, at 
        least one of whom is not subject to such chapter.

``Sec. 3262. Arrest and commitment

    ``(a) The Secretary of Defense may designate and authorize any 
person serving in a law enforcement position in the Department of 
Defense to arrest, in accordance with applicable international 
agreements, outside the United States any person described in section 
3261(a) if there is probable cause to believe that such person violated 
section 3261(a).
    ``(b) Except as provided in sections 3263 and 3264, a person 
arrested under subsection (a) shall be delivered as soon as practicable 
to the custody of civilian law enforcement authorities of the United 
States for removal to the United States for judicial proceedings in 
relation to conduct referred to in such subsection unless such person 
has had charges brought against him or her under chapter 47 of title 10 
for such conduct.

``Sec. 3263. Delivery to authorities of foreign countries

    ``(a) Any person designated and authorized under section 3262(a) may 
deliver a person described in section 3261(a) to the appropriate 
authorities of a foreign country in which such person is alleged to have 
violated section 3261(a) if--
            ``(1) appropriate authorities of that country request the 
        delivery of the person to such country for trial for such 
        conduct as an offense under the laws of that country; and
            ``(2) the delivery of such person to that country is 
        authorized by a treaty or other international agreement to which 
        the United States is a party.

    ``(b) The Secretary of Defense, in consultation with the Secretary 
of State, shall determine which officials of a foreign country 
constitute appropriate authorities for purposes of this section.

``Sec. 3264. Limitation on removal

    ``(a) Except as provided in subsection (b), and except for a person 
delivered to authorities of a foreign country under section 3263, a 
person arrested for or charged with a violation of section 3261(a) shall 
not be removed--
            ``(1) to the United States; or
            ``(2) to any foreign country other than a country in which 
        such person is believed to have violated section 3261(a).

[[Page 114 STAT. 2490]]

    ``(b) The limitation in subsection (a) does not apply if--
            ``(1) a Federal magistrate judge orders the person to be 
        removed to the United States to be present at a detention 
        hearing held pursuant to section 3142(f);
            ``(2) a Federal magistrate judge orders the detention of the 
        person before trial pursuant to section 3142(e), in which case 
        the person shall be promptly removed to the United States for 
        purposes of such detention;
            ``(3) the person is entitled to, and does not waive, a 
        preliminary examination under the Federal Rules of Criminal 
        Procedure, in which case the person shall be removed to the 
        United States in time for such examination;
            ``(4) a Federal magistrate judge otherwise orders the person 
        to be removed to the United States; or
            ``(5) the Secretary of Defense determines that military 
        necessity requires that the limitations in subsection (a) be 
        waived, in which case the person shall be removed to the nearest 
        United States military installation outside the United States 
        adequate to detain the person and to facilitate the initial 
        appearance described in section 3265(a).

``Sec. 3265. Initial proceedings

    ``(a)(1) In the case of any person arrested for or charged with a 
violation of section 3261(a) who is not delivered to authorities of a 
foreign country under section 3263, the initial appearance of that 
person under the Federal Rules of Criminal Procedure--
            ``(A) shall be conducted by a Federal magistrate judge; and
            ``(B) may be carried out by telephony or such other means 
        that enables voice communication among the participants, 
        including any counsel representing the person.

    ``(2) In conducting the initial appearance, the Federal magistrate 
judge shall also determine whether there is probable cause to believe 
that an offense under section 3261(a) was committed and that the person 
committed it.
    ``(3) If the Federal magistrate judge determines that probable cause 
exists that the person committed an offense under section 3261(a), and 
if no motion is made seeking the person's detention before trial, the 
Federal magistrate judge shall also determine at the initial appearance 
the conditions of the person's release before trial under chapter 207 of 
this title.
    ``(b) In the case of any person described in subsection (a), any 
detention hearing of that person under section 3142(f)--
            ``(1) shall be conducted by a Federal magistrate judge; and
            ``(2) at the request of the person, may be carried out by 
        telephony or such other means that enables voice communication 
        among the participants, including any counsel representing the 
        person.

    ``(c)(1) If any initial proceeding under this section with respect 
to any such person is conducted while the person is outside the United 
States, and the person is entitled to have counsel appointed for 
purposes of such proceeding, the Federal magistrate judge may appoint as 
such counsel for purposes of such hearing a qualified military counsel.

[[Page 114 STAT. 2491]]

    ``(2) For purposes of this subsection, the term `qualified military 
counsel' means a judge advocate made available by the Secretary of 
Defense for purposes of such proceedings, who--
            ``(A) is a graduate of an accredited law school or is a 
        member of the bar of a Federal court or of the highest court of 
        a State; and
            ``(B) is certified as competent to perform such duties by 
        the Judge Advocate General of the armed force of which he is a 
        member.

``Sec. 3266. Regulations

    ``(a) The Secretary of Defense, after consultation with the 
Secretary of State and the Attorney General, shall prescribe regulations 
governing the apprehension, detention, delivery, and removal of persons 
under this chapter and the facilitation of proceedings under section 
3265. Such regulations shall be uniform throughout the Department of 
Defense.
    ``(b)(1) The Secretary of Defense, after consultation with the 
Secretary of State and the Attorney General, shall prescribe regulations 
requiring that, to the maximum extent practicable, notice shall be 
provided to any person employed by or accompanying the Armed Forces 
outside the United States who is not a national of the United States 
that such person is potentially subject to the criminal jurisdiction of 
the United States under this chapter.
    ``(2) A failure to provide notice in accordance with the regulations 
prescribed under paragraph (1) shall not defeat the jurisdiction of a 
court of the United States or provide a defense in any judicial 
proceeding arising under this chapter.
    ``(c) <<NOTE: Effective date. Reports.>>  The regulations prescribed 
under this section, and any amendments to those regulations, shall not 
take effect before the date that is 90 days after the date on which the 
Secretary of Defense submits a report containing those regulations or 
amendments (as the case may be) to the Committee on the Judiciary of the 
House of Representatives and the Committee on the Judiciary of the 
Senate.

``Sec. 3267. Definitions

    ``As used in this chapter:
            ``(1) The term `employed by the Armed Forces outside the 
        United States' means--
                    ``(A) employed as a civilian employee of the 
                Department of Defense (including a nonappropriated fund 
                instrumentality of the Department), as a Department of 
                Defense contractor (including a subcontractor at any 
                tier), or as an employee of a Department of Defense 
                contractor (including a subcontractor at any tier);
                    ``(B) present or residing outside the United States 
                in connection with such employment; and
                    ``(C) not a national of or ordinarily resident in 
                the host nation.
            ``(2) The term `accompanying the Armed Forces outside the 
        United States' means--
                    ``(A) a dependent of--
                          ``(i) a member of the Armed Forces;
                          ``(ii) a civilian employee of the Department 
                      of Defense (including a nonappropriated fund 
                      instrumentality of the Department); or

[[Page 114 STAT. 2492]]

                          ``(iii) a Department of Defense contractor 
                      (including a subcontractor at any tier) or an 
                      employee of a Department of Defense contractor 
                      (including a subcontractor at any tier);
                    ``(B) residing with such member, civilian employee, 
                contractor, or contractor employee outside the United 
                States; and
                    ``(C) not a national of or ordinarily resident in 
                the host nation.
            ``(3) The term `Armed Forces' has the meaning given the term 
        `armed forces' in section 101(a)(4) of title 10.
            ``(4) The terms `Judge Advocate General' and `judge 
        advocate' have the meanings given such terms in section 801 of 
        title 10.''.

    (b) Clerical Amendment.--The table of chapters for part II of title 
18, United States Code, is amended by inserting after the item relating 
to chapter 211 the following new item:

``212.  Military extraterritorial jurisdiction...................3261''.

    Approved November 22, 2000.

LEGISLATIVE HISTORY--S. 768 (H.R. 3380):
---------------------------------------------------------------------------

HOUSE REPORTS: No. 106-778, Pt. 1 accompanying H.R. 3380 (Comm. on the 
Judiciary).
CONGRESSIONAL RECORD:
                                                        Vol. 145 (1999):
                                    July 1, considered and passed 
                                        Senate.
                                                        Vol. 146 (2000):
                                    July 25, considered and passed 
                                        House, amended, in lieu of H.R. 
                                        3380.
                                    Oct. 26, Senate concurred in House 
                                        amendments.

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