Calendar No. 167

106TH CONGRESS

1ST SESSION S. 768

A BILL

To establish court-martial jurisdiction over civilians

outside the United States.and civilians accompanying the Armed ForcesStates by former members of the Armed Forcesdiction over crimes committed outside the Unitedgency operations, and to establish Federal jurisserving with the Armed Forces during continJUNE 24, 1999

Reported with an amendment
II

Calendar No. 167

106TH CONGRESS

1ST SESSION S. 768

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.

IN THE SENATE OF THE UNITED STATES

APRIL 13, 1999

Mr. SESSIONS (for himself and Mr. DEWINE) introduced the following bill;

which was read twice and referred to the Committee on the Judiciary

Reported by Mr. HATCH, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

A BILL

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
2

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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Military and

3 Extraterritorial Jurisdiction Act of 1999’’.

4 SEC. 2. FINDINGS.

5 Congress makes the following findings:

6 (1) Civilian employees of the Department of

7 Defense, and civilian employees of Department of

8 Defense contractors, provide critical support to the

9 Armed Forces of the United States that are de10 ployed during a contingency operation.

11 (2) Misconduct by such persons undermines

12 good order and discipline in the Armed Forces, and

13 jeopardizes the mission of the contingency operation.

14 (3) Military commanders need the legal tools to

15 address adequately misconduct by civilians serving

16 with Armed Forces during a contingency operation.

17 (4) In its present state, military law does not

18 permit military commanders to address adequately

19 misconduct by civilians serving with Armed Forces,

20 except in time of a congressionally declared war.

21 (5) To address this need, the Uniform Code of

22 Military Justice should be amended to provide for

23 court-martial jurisdiction over civilians serving with

24 Armed Forces in places designated by the Secretary

25 of Defense during a ‘‘contingency operation’’ ex-
3

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1 pressly designated as such by the Secretary of De2 fense.

3 (6) This limited extension of court-martial ju4 risdiction over civilians is dictated by military neces5 sity, is within the constitutional powers of Congress

6 to make rules for the government of the Armed

7 Forces, and, therefore, is consistent with the Con8 stitution of the United States and United States

9 public policy.

10 (7) Many thousand civilian employees of the

11 Department of Defense, civilian employees of De12 partment of Defense contractors, and civilian de13 pendents accompany the Armed Forces to installa14 tions in foreign countries.

15 (8) Misconduct among such civilians has been a

16 longstanding problem for military commanders and

17 other United States officials in foreign countries,

18 and threatens United States citizens, United States

19 property, and United States relations with host

20 countries.

21 (9) Federal criminal law does not apply to

22 many offenses committed outside of the United

23 States by such civilians and, because host countries

24 often do not prosecute such offenses, serious crimes

25 often go unpunished and, to address this jurisdic-
4

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1 tional gap, Federal law should be amended to punish

2 serious offenses committed by such civilians outside

3 the United States, to the same extent as if those of4 fenses were committed within the special maritime

5 and territorial jurisdiction of the United States.

6 (10) Federal law does not apply to many crimes

7 committed outside the United States by members of

8 the Armed Forces who separate from the Armed

9 Forces before they can be identified, thus escaping

10 court martial jurisdiction and, to address this juris11 dictional gap, Federal law should be amended to

12 punish serious offenses committed by such persons

13 outside the United States, to the same extent as if

14 those offenses were committed within the special

15 maritime and territorial jurisdiction of the United

16 States.

17 SEC. 3. COURT-MARTIAL JURISDICTION.

18 (a) JURISDICTION DURING CONTINGENCY OPER19 ATIONS.—Section 802(a) of title 10, United States Code

20 (article 2(a) of the Uniform Code of Military Justice), is

21 amended by inserting after paragraph (12) the following:

22 ‘‘(13) To the extent not covered by paragraphs

23 (10) and (11), persons not members of the armed

24 forces who, in support of an operation designated as

25 a contingency operation as described in section
5

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1 101(a)(13)(A) of this title, are serving with and ac2 companying an armed force in a place or places out3 side the United States specified by the Secretary of

4 Defense, as follows:

5 ‘‘(A) Employees of the Department of De6 fense.

7 ‘‘(B) Employees of any Department of De8 fense contractor who are so serving in connec9 tion with the performance of a Department of

10 Defense contract.’’.

11 (b) EFFECTIVE DATE.—The amendment made by

12 subsection (a) shall take effect on the date of the enact13 ment of this Act and apply with respect to acts or omis14 sions occurring on or after that date.

15 SEC. 4. FEDERAL JURISDICTION.

16 (a) CRIMINAL OFFENSES COMMITTED OUTSIDE THE

17 UNITED STATES.—Title 18, United States Code, is

18 amended by inserting after chapter 211 the following:

19 ‘‘CHAPTER 212—CRIMINAL OFFENSES

20 COMMITTED OUTSIDE THE UNITED

21 STATES

‘‘Sec.

‘‘3261. Criminal offenses committed by persons formerly serving with, or presently employed by or accompanying, the Armed Forces outside

the United States.

‘‘3262. Delivery to authorities of foreign countries.

‘‘3263. Regulations.

‘‘3264. Definitions.
6

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1 ‘‘§ 3261. Criminal offenses committed by persons for2 merly serving with, or presently em3 ployed by or accompanying, the Armed

4 Forces outside the United States

5 ‘‘(a) IN GENERAL.—Whoever, while serving with, em6 ployed by, or accompanying the Armed Forces outside of

7 the United States, engages in conduct that would con8 stitute an offense punishable by imprisonment for more

9 than 1 year if the conduct had been engaged in within

10 the special maritime and territorial jurisdiction of the

11 United States, shall be guilty of a like offense and subject

12 to a like punishment.

13 ‘‘(b) CONCURRENT JURISDICTION.—Nothing in this

14 chapter may be construed to deprive a court-martial, mili15 tary commission, provost court, or other military tribunal

16 of concurrent jurisdiction with respect to offenders or of17 fenses that by statute or by the law of war may be tried

18 by a court-martial, military commission, provost court, or

19 other military tribunal.

20 ‘‘(c) ACTION BY FOREIGN GOVERNMENT.—No pros21 ecution may be commenced against a person under this

22 section if a foreign government, in accordance with juris23 diction recognized by the United States, has prosecuted

24 or is prosecuting such person for the conduct constituting

25 such offense, except upon the approval of the Attorney

26 General or the Deputy Attorney General (or a person act-
7

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1 ing in either such capacity), which function of approval

2 shall not be delegated.

3 ‘‘(d) ARRESTS.—

4 ‘‘(1) LAW ENFORCEMENT PERSONNEL.—The

5 Secretary of Defense may designate and authorize

6 any person serving in a law enforcement position in

7 the Department of Defense to arrest outside of the

8 United States any person described in subsection (a)

9 if there is probable cause to believe that such person

10 engaged in conduct that constitutes a criminal of11 fense under subsection (a).

12 ‘‘(2) RELEASE TO CIVILIAN LAW ENFORCE13 MENT.—A person arrested under paragraph (1)

14 shall be released to the custody of civilian law en15 forcement authorities of the United States for re16 moval to the United States for judicial proceedings

17 in relation to conduct referred to in such paragraph

18 unless—

19 ‘‘(A) such person is delivered to authorities

20 of a foreign country under section 3262; or

21 ‘‘(B) such person has had charges brought

22 against him or her under chapter 47 of title 10

23 for such conduct.

24 ‘‘(3) JUSTIFIABLE DELAY.—The arrest of a person

25 outside the United States by a person designated under
8

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1 paragraph (1), and the removal of the arrested person to

2 the United States under paragraph (2), are extraordinary

3 circumstances justifying delay in bringing the arrested

4 person before a magistrate as required by the fourth

5 amendment to the United States Constitution and the

6 Federal Rules of Criminal Procedure.

7 ‘‘§ 3262. Delivery to authorities of foreign countries

8 ‘‘(a) IN GENERAL.—Any person designated and au9 thorized under section 3261(d) may deliver a person de10 scribed in section 3261(a) to the appropriate authorities

11 of a foreign country in which such person is alleged to

12 have engaged in conduct described in section 3261(a) of

13 this section if—

14 ‘‘(1) the appropriate authorities of that country

15 request the delivery of the person to such country

16 for trial for such conduct as an offense under the

17 laws of that country; and

18 ‘‘(2) the delivery of such person to that country

19 is authorized by a treaty or other international

20 agreement to which the United States is a party.

21 ‘‘(b) DETERMINATION BY THE SECRETARY.—The

22 Secretary of Defense shall determine which officials of a

23 foreign country constitute appropriate authorities for pur24 poses of this section.
9

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1 ‘‘§ 3263. Regulations

2 ‘‘The Secretary of Defense shall issue regulations

3 governing the apprehension, detention, and removal of

4 persons under this chapter. Such regulations shall be uni5 form throughout the Department of Defense.

6 ‘‘§ 3264. Definitions

7 ‘‘In this chapter—

8 ‘‘(1) a person is ‘accompanying the Armed

9 Forces outside of the United States’ if the person—

10 ‘‘(A) is a dependent of—

11 ‘‘(i) a member of the Armed Forces;

12 ‘‘(ii) a civilian employee of a military

13 department or of the Department of De14 fense; or

15 ‘‘(iii) a Department of Defense con16 tractor, or is a dependent of an employee

17 of a Department of Defense contractor;

18 ‘‘(B) is residing with such member, civilian

19 employee, contractor, or contractor employee

20 outside the United States; and

21 ‘‘(C) is not a national of or ordinarily resi22 dent in the host nation;

23 ‘‘(2) the term ‘Armed Forces’ has the same

24 meaning as in section 101(a)(4) of title 10; and

25 ‘‘(3) a person is ‘employed by the Armed

26 Forces outside of the United States’ if the person—
10

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1 ‘‘(A) is employed as a civilian employee of

2 the Department of Defense, as a Department of

3 Defense contractor, or as an employee of a De4 partment of Defense contractor;

5 ‘‘(B) is present or residing outside of the

6 United States in connection with such employ7 ment; and

8 ‘‘(C) is not a national of or ordinarily resi9 dent in the host nation.’’.

10 (b) CLERICAL AMENDMENT.—The table of chapters

11 at the beginning of part II of title 18, United States Code,

12 is amended by inserting after the item relating to chapter

13 211 the following:

‘‘212. Criminal Offenses Committed Outside the United

States .......................................................................... 3621’’.

14 SECTION 1. SHORT TITLE.

15 This Act may be cited as the ‘‘Military and

16 Extraterritorial Jurisdiction Act of 1999’’.

17 SEC. 2. FINDINGS.

18 Congress makes the following findings:

19 (1) Civilian employees of the Department of De20 fense, and civilian employees of Department of De21 fense contractors, provide critical support to the

22 Armed Forces of the United States that are deployed

23 during a contingency operation.
11

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1 (2) Misconduct by such persons undermines good

2 order and discipline in the Armed Forces, and jeop3 ardizes the mission of the contingency operation.

4 (3) Military commanders need the legal tools to

5 address adequately misconduct by civilians serving

6 with Armed Forces during a contingency operation.

7 (4) In its present state, military law does not

8 permit military commanders to address adequately

9 misconduct by civilians serving with Armed Forces,

10 except in time of a congressionally declared war.

11 (5) To address this need, the Uniform Code of

12 Military Justice should be amended to provide for

13 court-martial jurisdiction over civilians serving with

14 Armed Forces in places designated by the Secretary

15 of Defense during a ‘‘contingency operation’’ expressly

16 designated as such by the Secretary of Defense.

17 (6) This limited extension of court-martial juris18 diction over civilians is dictated by military neces19 sity, is within the constitutional powers of Congress

20 to make rules for the government of the Armed Forces,

21 and, therefore, is consistent with the Constitution of

22 the United States and United States public policy.

23 (7) Many thousand civilian employees of the De24 partment of Defense, civilian employees of Depart25 ment of Defense contractors, and civilian dependents
12

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1 accompany the Armed Forces to installations in for2 eign countries.

3 (8) Misconduct among such civilians has been a

4 longstanding problem for military commanders and

5 other United States officials in foreign countries, and

6 threatens United States citizens, United States prop7 erty, and United States relations with host countries.

8 (9) Federal criminal law does not apply to

9 many offenses committed outside of the United States

10 by such civilians and, because host countries often do

11 not prosecute such offenses, serious crimes often go

12 unpunished and, to address this jurisdictional gap,

13 Federal law should be amended to punish serious of14 fenses committed by such civilians outside the United

15 States, to the same extent as if those offenses were

16 committed within the special maritime and terri17 torial jurisdiction of the United States.

18 (10) Federal law does not apply to many crimes

19 committed outside the United States by members of

20 the Armed Forces who separate from the Armed

21 Forces before they can be identified, thus escaping

22 court-martial jurisdiction and, to address this juris23 dictional gap, Federal law should be amended to pun24 ish serious offenses committed by such persons outside

25 the United States, to the same extent as if those of-
13

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1 fenses were committed within the special maritime

2 and territorial jurisdiction of the United States.

3 SEC. 3. COURT-MARTIAL JURISDICTION.

4 (a) JURISDICTION DURING CONTINGENCY OPER5 ATIONS.—Section 802(a) of title 10, United States Code

6 (article 2(a) of the Uniform Code of Military Justice), is

7 amended by inserting after paragraph (12) the following:

8 ‘‘(13) To the extent not covered by paragraphs

9 (10) and (11), persons not members of the armed

10 forces who, in support of a contingency operation de11 scribed in section 101(a)(13)(B) of this title, are serv12 ing with and accompanying an armed force in a

13 place or places outside the United States specified by

14 the Secretary of Defense, as follows:

15 ‘‘(A) Employees of the Department of De16 fense.

17 ‘‘(B) Employees of any Department of De18 fense contractor who are so serving in connection

19 with the performance of a Department of Defense

20 contract.’’.

21 (b) EFFECTIVE DATE.—The amendment made by sub22 section (a) shall take effect on the date of the enactment

23 of this Act and apply with respect to acts or omissions oc24 curring on or after that date.
14

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1 SEC. 4. FEDERAL JURISDICTION.

2 (a) CRIMINAL OFFENSES COMMITTED OUTSIDE THE

3 UNITED STATES.—Title 18, United States Code, is amend4 ed by inserting after chapter 211 the following:

5 ‘‘CHAPTER 212—CRIMINAL OFFENSES

6 COMMITTED OUTSIDE THE UNITED

7 STATES

‘‘Sec.

‘‘3261. Criminal offenses committed by persons formerly serving with, or presently

employed by or accompanying, the Armed Forces outside the

United States.

‘‘3262. Delivery to authorities of foreign countries.

‘‘3263. Regulations.

‘‘3264. Definitions.

8 ‘‘§ 3261. Criminal offenses committed by persons for9 merly serving with, or presently employed

10 by or accompanying, the Armed Forces

11 outside the United States

12 ‘‘(a) IN GENERAL.—Whoever, while serving with, em13 ployed by, or accompanying the Armed Forces outside of

14 the United States, engages in conduct that would constitute

15 an offense punishable by imprisonment for more than 1

16 year if the conduct had been engaged in within the special

17 maritime and territorial jurisdiction of the United States,

18 shall be guilty of a like offense and subject to a like punish19 ment.

20 ‘‘(b) CONCURRENT JURISDICTION.—Nothing in this

21 chapter may be construed to deprive a court-martial, mili22 tary commission, provost court, or other military tribunal
15

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1 of concurrent jurisdiction with respect to offenders or of2 fenses that by statute or by the law of war may be tried

3 by a court-martial, military commission, provost court, or

4 other military tribunal.

5 ‘‘(c) ACTION BY FOREIGN GOVERNMENT.—No prosecu6 tion may be commenced against a person under this section

7 if a foreign government, in accordance with jurisdiction

8 recognized by the United States, has prosecuted or is pros9 ecuting such person for the conduct constituting such of10 fense, except upon the approval of the Attorney General or

11 the Deputy Attorney General (or a person acting in either

12 such capacity), which function of approval shall not be dele13 gated.

14 ‘‘(d) ARRESTS.—

15 ‘‘(1) LAW ENFORCEMENT PERSONNEL.—The Sec16 retary of Defense may designate and authorize any

17 person serving in a law enforcement position in the

18 Department of Defense to arrest outside of the United

19 States any person described in subsection (a) if there

20 is probable cause to believe that such person engaged

21 in conduct that constitutes a criminal offense under

22 subsection (a).

23 ‘‘(2) RELEASE TO CIVILIAN LAW ENFORCE24 MENT.—A person arrested under paragraph (1) shall

25 be released to the custody of civilian law enforcement
16

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1 authorities of the United States for removal to the

2 United States for judicial proceedings in relation to

3 conduct referred to in such paragraph unless—

4 ‘‘(A) such person is delivered to authorities

5 of a foreign country under section 3262; or

6 ‘‘(B) such person has had charges brought

7 against him or her under chapter 47 of title 10

8 for such conduct.

9 ‘‘§ 3262. Delivery to authorities of foreign countries

10 ‘‘(a) IN GENERAL.—Any person designated and au11 thorized under section 3261(d) may deliver a person de12 scribed in section 3261(a) to the appropriate authorities of

13 a foreign country in which such person is alleged to have

14 engaged in conduct described in section 3261(a) of this sec15 tion if—

16 ‘‘(1) the appropriate authorities of that country

17 request the delivery of the person to such country for

18 trial for such conduct as an offense under the laws

19 of that country; and

20 ‘‘(2) the delivery of such person to that country

21 is authorized by a treaty or other international agree22 ment to which the United States is a party.

23 ‘‘(b) DETERMINATION BY THE SECRETARY.—The Sec24 retary of Defense, in consultation with the Secretary of

25 State, shall determine which officials of a foreign country
17

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1 constitute appropriate authorities for purposes of this sec2 tion.

3 ‘‘§ 3263. Regulations

4 ‘‘The Secretary of Defense shall issue regulations gov5 erning the apprehension, detention, and removal of persons

6 under this chapter. Such regulations shall be uniform

7 throughout the Department of Defense.

8 ‘‘§ 3264. Definitions

9 ‘‘In this chapter—

10 ‘‘(1) a person is ‘accompanying the Armed

11 Forces outside of the United States’ if the person—

12 ‘‘(A) is a dependent of—

13 ‘‘(i) a member of the Armed Forces;

14 ‘‘(ii) a civilian employee of a military

15 department or of the Department of Defense;

16 or

17 ‘‘(iii) a Department of Defense con18 tractor or an employee of a Department of

19 Defense contractor;

20 ‘‘(B) is residing with such member, civilian

21 employee, contractor, or contractor employee out22 side the United States; and

23 ‘‘(C) is not a national of or ordinarily resi24 dent in the host nation;
18

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1 ‘‘(2) the term ‘Armed Forces’ has the same mean2 ing as in section 101(a)(4) of title 10; and

3 ‘‘(3) a person is ‘employed by the Armed Forces

4 outside of the United States’ if the person—

5 ‘‘(A) is employed as a civilian employee of

6 the Department of Defense, as a Department of

7 Defense contractor, or as an employee of a De8 partment of Defense contractor;

9 ‘‘(B) is present or residing outside of the

10 United States in connection with such employ11 ment; and

12 ‘‘(C) is not a national of or ordinarily resi13 dent in the host nation.’’.

14 (b) CLERICAL AMENDMENT.—The table of chapters at

15 the beginning of part II of title 18, United States Code,

16 is amended by inserting after the item relating to chapter

17 211 the following:

‘‘212. Criminal Offenses Committed Outside the United

States ................................................................................ 3621’’.