II

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

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,

3 SECTION 1. SHORT TITLE.

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

5 Extraterritorial Jurisdiction Act of 1999’’.
2

•S 768 IS

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-
3

•S 768 IS

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-
4

•S 768 IS

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 an operation designated as

22 a contingency operation as described in section

23 101(a)(13)(A) of this title, are serving with and ac24 companying an armed force in a place or places out-
5

•S 768 IS

1 side the United States specified by the Secretary of

2 Defense, as follows:

3 ‘‘(A) Employees of the Department of De4 fense.

5 ‘‘(B) Employees of any Department of De6 fense contractor who are so serving in connec7 tion with the performance of a Department of

8 Defense contract.’’.

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

10 subsection (a) shall take effect on the date of the enact11 ment of this Act and apply with respect to acts or omis12 sions occurring on or after that date.

13 SEC. 4. FEDERAL JURISDICTION.

14 (a) CRIMINAL OFFENSES COMMITTED OUTSIDE THE

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

16 amended by inserting after chapter 211 the following:

17 ‘‘CHAPTER 212—CRIMINAL OFFENSES

18 COMMITTED OUTSIDE THE UNITED

19 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

•S 768 IS

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

•S 768 IS

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

•S 768 IS

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

•S 768 IS

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

•S 768 IS

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’’.

Æ