respect to offenders or offenses that by statute or by the law
of war may be tried by a court-martial, military commis-
sion, 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 sec-
tion 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 1 or more
other defendants, at least 1 of whom is not subject to
such chapter.
‘‘§ 3262. Arrest and commitment
‘‘(a) The Secretary of Defense may designate and au-
thorize 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 enforce-
ment 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 sec-
tion 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 re-
quest 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 agree-
ment 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 for-
eign 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 sec-
tion 3261(a).
‘‘(b) The limitation in subsection (a) does not apply
if—
‘‘(1) a Federal magistrate judge orders the per-
son 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 deten-
tion 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 de-
tention;
‘‘(3) the person is entitled to, and does not
waive, a preliminary examination under the Federal
Rules of Criminal Procedure, in which case the per-
son 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 de-
tain the person and to facilitate the initial appear-
ance 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 deliv-
ered 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 prob-
able 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 con-
ditions 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, includ-
ing any counsel representing the person.
‘‘(c)(1) If any initial proceeding under this section
with respect to any such person is conducted while the per-
son 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.
‘‘(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 pre-
scribe regulations governing the apprehension, detention,
delivery, and removal of persons under this chapter and the
facilitation of proceedings under section 3265. Such regula-
tions shall be uniform throughout the Department of De-
fense.
‘‘(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 regu-
lations or amendments (as the case may be) to the Com-
mittee 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 non-
appropriated fund instrumentality of the De-
partment), as a Department of Defense con-
tractor (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 resi-
dent 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 Depart-
ment 
of 
Defense 
(including 
a 
non-
appropriated fund instrumentality of the
Department); or
‘‘(iii) a Department of Defense con-
tractor (including a subcontractor at any
tier) or an employee of a Department of De-
fense contractor (including a subcontractor
at any tier);
‘‘(B) residing with such member, civilian
employee, contractor, or contractor employee out-
side the United States; and
‘‘(C) not a national of or ordinarily resi-
dent 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 in-
serting after the item relating to chapter 211 the following
new item:
‘‘212.
Military extraterritorial jurisdiction ............................. 3261’’.
Union Calendar No. 443
106TH CONGRESS
2D SESSION
H. R. 3380
[Report No. 106–778, Part I]
A BILL
To amend title 18, United States Code, to establish
Federal jurisdiction over offenses committed out-
side the United States by persons employed by or
accompanying the Armed Forces, or by members
of the Armed Forces who are released or sepa-
rated from active duty prior to being identified
and prosecuted for the commission of such of-
fenses, and for other purposes.
JULY 20, 2000
Reported from the Committee on the Judiciary with an
amendment
JULY 20, 2000
Referral to the Committee on Armed Services extended
for a period ending not later than July 20, 2000
JULY 20, 2000
Committee on Armed Services discharged; committed to
the Committee of the Whole House on the State of the
Union and ordered to be printed