S. 768

One Hundred Sixth Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Monday,

the twenty-fourth day of January, two thousand

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.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. 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.

‘‘§ 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
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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.

‘‘§ 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.

‘‘§ 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.

‘‘§ 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).
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‘‘(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).

‘‘§ 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.
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‘‘(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.

‘‘§ 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) 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.

‘‘§ 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
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‘‘(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’’.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.