[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 768 Engrossed Amendment House (EAH)]


  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:

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.
``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
    ``(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 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.
``Sec. 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.
``Sec. 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.
``Sec. 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).
    ``(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).
``Sec. 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.
    ``(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.
``Sec. 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.
``Sec. 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
                            ``(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''.

            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.