I

106TH CONGRESS

1ST SESSION S. 768

IN THE HOUSE OF REPRESENTATIVES

JULY 12, 1999

Referred to the Committee on Armed Services, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by

the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

AN ACT

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,

3 SECTION 1. SHORT TITLE.

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

5 Extraterritorial Jurisdiction Act of 1999’’.
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1 SEC. 2. FINDINGS.

2 Congress makes the following findings:

3 (1) Civilian employees of the Department of

4 Defense, and civilian employees of Department of

5 Defense contractors, provide critical support to the

6 Armed Forces of the United States that are de7 ployed during a contingency operation.

8 (2) Misconduct by such persons undermines

9 good order and discipline in the Armed Forces, and

10 jeopardizes the mission of the contingency operation.

11 (3) Military commanders need the legal tools to

12 address adequately misconduct by civilians serving

13 with Armed Forces during a contingency operation.

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

15 permit military commanders to address adequately

16 misconduct by civilians serving with Armed Forces,

17 except in time of a congressionally declared war.

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

19 Military Justice should be amended to provide for

20 court-martial jurisdiction over civilians serving with

21 Armed Forces in places designated by the Secretary

22 of Defense during a ‘‘contingency operation’’ ex23 pressly designated as such by the Secretary of De24 fense.

25 (6) This limited extension of court-martial ju26 risdiction over civilians is dictated by military neces-
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1 sity, is within the constitutional powers of Congress

2 to make rules for the government of the Armed

3 Forces, and, therefore, is consistent with the Con4 stitution of the United States and United States

5 public policy.

6 (7) Many thousand civilian employees of the

7 Department of Defense, civilian employees of De8 partment of Defense contractors, and civilian de9 pendents accompany the Armed Forces to installa10 tions in foreign countries.

11 (8) Misconduct among such civilians has been a

12 longstanding problem for military commanders and

13 other United States officials in foreign countries,

14 and threatens United States citizens, United States

15 property, and United States relations with host

16 countries.

17 (9) Federal criminal law does not apply to

18 many offenses committed outside of the United

19 States by such civilians and, because host countries

20 often do not prosecute such offenses, serious crimes

21 often go unpunished and,to address this jurisdic22 tional gap, Federal law should be amended to punish

23 serious offenses committed by such civilians outside

24 the United States, to the same extent as if those of-
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1 fenses were committed within the special maritime

2 and territorial jurisdiction of the United States.

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

4 committed outside the United States by members of

5 the Armed Forces who separate from the Armed

6 Forces before they can be identified, thus escaping

7 court-martial jurisdiction and, to address this juris8 dictional gap, Federal law should be amended to

9 punish serious offenses committed by such persons

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

11 those offenses were committed within the special

12 maritime and territorial jurisdiction of the United

13 States.

14 SEC. 3. COURT-MARTIAL JURISDICTION.

15 (a) JURISDICTION DURING CONTINGENCY OPER16 ATIONS.—Section 802(a) of title 10, United States Code

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

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

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

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

21 forces who, in support of a contingency operation de22 scribed in section 101(a)(13)(B) of this title, are

23 serving with and accompanying an armed force in a

24 place or places outside the United States specified

25 by the Secretary of Defense, as follows:
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1 ‘‘(A) Employees of the Department of De2 fense.

3 ‘‘(B) Employees of any Department of De4 fense contractor who are so serving in connec5 tion with the performance of a Department of

6 Defense contract.’’.

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

8 subsection (a) shall take effect on the date of the enact9 ment of this Act and apply with respect to acts or omis10 sions occurring on or after that date.

11 SEC. 4. FEDERAL JURISDICTION.

12 (a) CRIMINAL OFFENSES COMMITTED OUTSIDE THE

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

14 amended by inserting after chapter 211 the following:

15 ‘‘CHAPTER 212—CRIMINAL OFFENSES

16 COMMITTED OUTSIDE THE UNITED

17 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.
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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-
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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, in accordance

8 with applicable international agreements, outside of

9 the United States any person described in subsection

10 (a) if there is probable cause to believe that such

11 person engaged in conduct that constitutes a crimi12 nal offense under subsection (a).

13 ‘‘(2) RELEASE TO CIVILIAN LAW ENFORCE14 MENT.—A person arrested under paragraph (1)

15 shall be released to the custody of civilian law en16 forcement authorities of the United States for re17 moval to the United States for judicial proceedings

18 in relation to conduct referred to in such paragraph

19 unless—

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

21 of a foreign country under section 3262; or

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

23 against him or her under chapter 47 of title 10

24 for such conduct.
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1 ‘‘§ 3262. Delivery to authorities of foreign countries

2 ‘‘(a) IN GENERAL.—Any person designated and au3 thorized under section 3261(d) may deliver a person de4 scribed in section 3261(a) to the appropriate authorities

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

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

7 this section if—

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

9 request the delivery of the person to such country

10 for trial for such conduct as an offense under the

11 laws of that country; and

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

13 is authorized by a treaty or other international

14 agreement to which the United States is a party.

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

16 Secretary of Defense, in consultation with the Secretary

17 of State, shall determine which officials of a foreign coun18 try constitute appropriate authorities for purposes of this

19 section.

20 ‘‘§ 3263. Regulations

21 ‘‘(a) IN GENERAL.—The Secretary of Defense, after

22 consultation with the Secretary of State and the Attorney

23 General, shall issue regulations governing the apprehen24 sion, detention, and removal of persons under this chapter.

25 Such regulations shall be uniform throughout the Depart26 ment of Defense.
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1 ‘‘(b) NOTICE TO THIRD PARTY NATIONALS.—

2 ‘‘(1) IN GENERAL.—The Secretary of Defense,

3 after consultation with the Secretary of State, shall

4 issue regulations requiring that, to the maximum ex5 tent practicable, notice shall be provided to any per6 son serving with, employed by, or accompanying the

7 Armed Forces outside the United States who is not

8 a national of the United States that such person is

9 potentially subject to the criminal jurisdiction of the

10 United States under this chapter.

11 ‘‘(2) FAILURE TO PROVIDE NOTICE.—The fail12 ure to provide notice as prescribed in the regulations

13 issued under paragraph (1) shall not defeat the ju14 risdiction of a court of the United States or provide

15 a defense in any judicial proceeding arising under

16 this chapter.

17 ‘‘§ 3264. Definitions

18 ‘‘In this chapter—

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

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

21 ‘‘(A) is a dependent of—

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

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

24 department or of the Department of De25 fense; or
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1 ‘‘(iii) a Department of Defense con2 tractor or an employee of a Department of

3 Defense contractor;

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

5 employee, contractor, or contractor employee

6 outside the United States; and

7 ‘‘(C) is not a national of or ordinarily resi8 dent in the host nation;

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

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

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

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

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

14 the Department of Defense, as a Department of

15 Defense contractor, or as an employee of a De16 partment of Defense contractor;

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

18 United States in connection with such employ19 ment; and

20 ‘‘(C) is not a national of or ordinarily resi21 dent in the host nation.’’.

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

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

24 is amended by inserting after the item relating to chapter

25 211 the following:
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‘‘212. Criminal Offenses Committed Outside the United

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

Passed the Senate July 1, 1999.

Attest: GARY SISCO,

Secretary.