106TH CONGRESS

2D SESSION S. 768

AMENDMENTS

In the House of Representatives, U. S.,

July 25, 2000.

Resolved, That the bill from the Senate (S. 768) entitled

‘‘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’’, do pass with the following

AMENDMENTS:

Strike out all after the enacting clause and insert:

1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Military

3 Extraterritorial Jurisdiction Act of 2000’’.

4 SEC. 2. FEDERAL JURISDICTION.

5 (a) CERTAIN CRIMINAL OFFENSES COMMITTED OUT6 SIDE THE UNITED STATES.—Title 18, United States Code,

7 is amended by inserting after chapter 211 the following new

8 chapter:
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1 ‘‘CHAPTER 212—MILITARY

2 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.

3 ‘‘§ 3261. Criminal offenses committed by certain mem4 bers of the Armed Forces and by persons

5 employed by or accompanying the Armed

6 Forces outside the United States

7 ‘‘(a) Whoever engages in conduct outside the United

8 States that would constitute an offense punishable by im9 prisonment for more than 1 year if the conduct had been

10 engaged in within the special maritime and territorial ju11 risdiction of the United States—

12 ‘‘(1) while employed by or accompanying the

13 Armed Forces outside the United States; or

14 ‘‘(2) while a member of the Armed Forces subject

15 to chapter 47 of title 10 (the Uniform Code of Mili16 tary Justice),

17 shall be punished as provided for that offense.

18 ‘‘(b) No prosecution may be commenced against a per19 son under this section if a foreign government, in accord20 ance with jurisdiction recognized by the United States, has
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1 prosecuted or is prosecuting such person for the conduct

2 constituting such offense, except upon the approval of the

3 Attorney General or the Deputy Attorney General (or a per4 son acting in either such capacity), which function of ap5 proval may not be delegated.

6 ‘‘(c) Nothing in this chapter may be construed to de7 prive a court-martial, military commission, provost court,

8 or other military tribunal of concurrent jurisdiction with

9 respect to offenders or offenses that by statute or by the law

10 of war may be tried by a court-martial, military commis11 sion, provost court, or other military tribunal.

12 ‘‘(d) No prosecution may be commenced against a

13 member of the Armed Forces subject to chapter 47 of title

14 10 (the Uniform Code of Military Justice) under this sec15 tion unless—

16 ‘‘(1) such member ceases to be subject to such

17 chapter; or

18 ‘‘(2) an indictment or information charges that

19 the member committed the offense with one or more

20 other defendants, at least one of whom is not subject

21 to such chapter.

22 ‘‘§ 3262. Arrest and commitment

23 ‘‘(a) The Secretary of Defense may designate and au24 thorize any person serving in a law enforcement position

25 in the Department of Defense to arrest, in accordance with
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1 applicable international agreements, outside the United

2 States any person described in section 3261(a) if there is

3 probable cause to believe that such person violated section

4 3261(a).

5 ‘‘(b) Except as provided in sections 3263 and 3264,

6 a person arrested under subsection (a) shall be delivered as

7 soon as practicable to the custody of civilian law enforce8 ment authorities of the United States for removal to the

9 United States for judicial proceedings in relation to conduct

10 referred to in such subsection unless such person has had

11 charges brought against him or her under chapter 47 of title

12 10 for such conduct.

13 ‘‘§ 3263. Delivery to authorities of foreign countries

14 ‘‘(a) Any person designated and authorized under sec15 tion 3262(a) may deliver a person described in section

16 3261(a) to the appropriate authorities of a foreign country

17 in which such person is alleged to have violated section

18 3261(a) if—

19 ‘‘(1) appropriate authorities of that country re20 quest the delivery of the person to such country for

21 trial for such conduct as an offense under the laws of

22 that country; and

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

24 is authorized by a treaty or other international agree25 ment to which the United States is a party.
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1 ‘‘(b) The Secretary of Defense, in consultation with the

2 Secretary of State, shall determine which officials of a for3 eign country constitute appropriate authorities for purposes

4 of this section.

5 ‘‘§ 3264. Limitation on removal

6 ‘‘(a) Except as provided in subsection (b), and except

7 for a person delivered to authorities of a foreign country

8 under section 3263, a person arrested for or charged with

9 a violation of section 3261(a) shall not be removed—

10 ‘‘(1) to the United States; or

11 ‘‘(2) to any foreign country other than a country

12 in which such person is believed to have violated sec13 tion 3261(a).

14 ‘‘(b) The limitation in subsection (a) does not apply

15 if—

16 ‘‘(1) a Federal magistrate judge orders the per17 son to be removed to the United States to be present

18 at a detention hearing held pursuant to section

19 3142(f);

20 ‘‘(2) a Federal magistrate judge orders the deten21 tion of the person before trial pursuant to section

22 3142(e), in which case the person shall be promptly

23 removed to the United States for purposes of such de24 tention;
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1 ‘‘(3) the person is entitled to, and does not

2 waive, a preliminary examination under the Federal

3 Rules of Criminal Procedure, in which case the per4 son shall be removed to the United States in time for

5 such examination;

6 ‘‘(4) a Federal magistrate judge otherwise orders

7 the person to be removed to the United States; or

8 ‘‘(5) the Secretary of Defense determines that

9 military necessity requires that the limitations in

10 subsection (a) be waived, in which case the person

11 shall be removed to the nearest United States military

12 installation outside the United States adequate to de13 tain the person and to facilitate the initial appear14 ance described in section 3265(a).

15 ‘‘§ 3265. Initial proceedings

16 ‘‘(a)(1) In the case of any person arrested for or

17 charged with a violation of section 3261(a) who is not deliv18 ered to authorities of a foreign country under section 3263,

19 the initial appearance of that person under the Federal

20 Rules of Criminal Procedure—

21 ‘‘(A) shall be conducted by a Federal magistrate

22 judge; and

23 ‘‘(B) may be carried out by telephony or such

24 other means that enables voice communication among
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1 the participants, including any counsel representing

2 the person.

3 ‘‘(2) In conducting the initial appearance, the Federal

4 magistrate judge shall also determine whether there is prob5 able cause to believe that an offense under section 3261(a)

6 was committed and that the person committed it.

7 ‘‘(3) If the Federal magistrate judge determines that

8 probable cause exists that the person committed an offense

9 under section 3261(a), and if no motion is made seeking

10 the person’s detention before trial, the Federal magistrate

11 judge shall also determine at the initial appearance the con12 ditions of the person’s release before trial under chapter 207

13 of this title.

14 ‘‘(b) In the case of any person described in subsection

15 (a), any detention hearing of that person under section

16 3142(f)—

17 ‘‘(1) shall be conducted by a Federal magistrate

18 judge; and

19 ‘‘(2) at the request of the person, may be carried

20 out by telephony or such other means that enables

21 voice communication among the participants, includ22 ing any counsel representing the person.

23 ‘‘(c)(1) If any initial proceeding under this section

24 with respect to any such person is conducted while the per25 son is outside the United States, and the person is entitled
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1 to have counsel appointed for purposes of such proceeding,

2 the Federal magistrate judge may appoint as such counsel

3 for purposes of such hearing a qualified military counsel.

4 ‘‘(2) For purposes of this subsection, the term ‘qualified

5 military counsel’ means a judge advocate made available

6 by the Secretary of Defense for purposes of such proceedings,

7 who—

8 ‘‘(A) is a graduate of an accredited law

9 school or is a member of the bar of a Federal

10 court or of the highest court of a State; and

11 ‘‘(B) is certified as competent to perform

12 such duties by the Judge Advocate General of the

13 armed force of which he is a member.

14 ‘‘§ 3266. Regulations

15 ‘‘(a) The Secretary of Defense, after consultation with

16 the Secretary of State and the Attorney General, shall pre17 scribe regulations governing the apprehension, detention,

18 delivery, and removal of persons under this chapter and the

19 facilitation of proceedings under section 3265. Such regula20 tions shall be uniform throughout the Department of De21 fense.

22 ‘‘(b)(1) The Secretary of Defense, after consultation

23 with the Secretary of State and the Attorney General, shall

24 prescribe regulations requiring that, to the maximum extent

25 practicable, notice shall be provided to any person employed
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1 by or accompanying the Armed Forces outside the United

2 States who is not a national of the United States that such

3 person is potentially subject to the criminal jurisdiction of

4 the United States under this chapter.

5 ‘‘(2) A failure to provide notice in accordance with the

6 regulations prescribed under paragraph (1) shall not defeat

7 the jurisdiction of a court of the United States or provide

8 a defense in any judicial proceeding arising under this

9 chapter.

10 ‘‘(c) The regulations prescribed under this section, and

11 any amendments to those regulations, shall not take effect

12 before the date that is 90 days after the date on which the

13 Secretary of Defense submits a report containing those regu14 lations or amendments (as the case may be) to the Com15 mittee on the Judiciary of the House of Representatives and

16 the Committee on the Judiciary of the Senate.

17 ‘‘§ 3267. Definitions

18 ‘‘As used in this chapter:

19 ‘‘(1) The term ‘employed by the Armed Forces

20 outside the United States’ means—

21 ‘‘(A) employed as a civilian employee of the

22 Department of Defense (including a non23 appropriated fund instrumentality of the De24 partment), as a Department of Defense con25 tractor (including a subcontractor at any tier),
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1 or as an employee of a Department of Defense

2 contractor (including a subcontractor at any

3 tier);

4 ‘‘(B) present or residing outside the United

5 States in connection with such employment; and

6 ‘‘(C) not a national of or ordinarily resi7 dent in the host nation.

8 ‘‘(2) The term ‘accompanying the Armed Forces

9 outside the United States’ means—

10 ‘‘(A) a dependent of—

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

12 ‘‘(ii) a civilian employee of the Depart13 ment of Defense (including a non14 appropriated fund instrumentality of the

15 Department); or

16 ‘‘(iii) a Department of Defense con17 tractor (including a subcontractor at any

18 tier) or an employee of a Department of De19 fense contractor (including a subcontractor

20 at any tier);

21 ‘‘(B) residing with such member, civilian

22 employee, contractor, or contractor employee out23 side the United States; and

24 ‘‘(C) not a national of or ordinarily resi25 dent in the host nation.
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1 ‘‘(3) The term ‘Armed Forces’ has the meaning

2 given the term ‘armed forces’ in section 101(a)(4) of

3 title 10.

4 ‘‘(4) The terms ‘Judge Advocate General’ and

5 ‘judge advocate’ have the meanings given such terms

6 in section 801 of title 10.’’.

7 (b) CLERICAL AMENDMENT.—The table of chapters for

8 part II of title 18, United States Code, is amended by in9 serting after the item relating to chapter 211 the following

10 new item:

‘‘212. Military extraterritorial jurisdiction ............................. 3261’’.

Amend the title so as to read ‘‘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.’’.

Attest:

Clerk.