[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 768 Reported in Senate (RS)]





                                                       Calendar No. 167

106th CONGRESS

  1st Session

                                 S. 768

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                             June 24, 1999

                       Reported with an amendment





                                                       Calendar No. 167
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
                Reported by Mr. Hatch, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Military and 
Extraterritorial Jurisdiction Act of 1999''.</DELETED>

<DELETED>SEC. 2. FINDINGS.</DELETED>

<DELETED>    Congress makes the following findings:</DELETED>
        <DELETED>    (1) Civilian employees of the Department of 
        Defense, and civilian employees of Department of Defense 
        contractors, provide critical support to the Armed Forces of 
        the United States that are deployed during a contingency 
        operation.</DELETED>
        <DELETED>    (2) Misconduct by such persons undermines good 
        order and discipline in the Armed Forces, and jeopardizes the 
        mission of the contingency operation.</DELETED>
        <DELETED>    (3) Military commanders need the legal tools to 
        address adequately misconduct by civilians serving with Armed 
        Forces during a contingency operation.</DELETED>
        <DELETED>    (4) In its present state, military law does not 
        permit military commanders to address adequately misconduct by 
        civilians serving with Armed Forces, except in time of a 
        congressionally declared war.</DELETED>
        <DELETED>    (5) To address this need, the Uniform Code of 
        Military Justice should be amended to provide for court-martial 
        jurisdiction over civilians serving with Armed Forces in places 
        designated by the Secretary of Defense during a ``contingency 
        operation'' expressly designated as such by the Secretary of 
        Defense.</DELETED>
        <DELETED>    (6) This limited extension of court-martial 
        jurisdiction over civilians is dictated by military necessity, 
        is within the constitutional powers of Congress to make rules 
        for the government of the Armed Forces, and, therefore, is 
        consistent with the Constitution of the United States and 
        United States public policy.</DELETED>
        <DELETED>    (7) Many thousand civilian employees of the 
        Department of Defense, civilian employees of Department of 
        Defense contractors, and civilian dependents accompany the 
        Armed Forces to installations in foreign countries.</DELETED>
        <DELETED>    (8) Misconduct among such civilians has been a 
        longstanding problem for military commanders and other United 
        States officials in foreign countries, and threatens United 
        States citizens, United States property, and United States 
        relations with host countries.</DELETED>
        <DELETED>    (9) Federal criminal law does not apply to many 
        offenses committed outside of the United States by such 
        civilians and, because host countries often do not prosecute 
        such offenses, serious crimes often go unpunished and, to 
        address this jurisdictional gap, Federal law should be amended 
        to punish serious offenses committed by such civilians outside 
        the United States, to the same extent as if those offenses were 
        committed within the special maritime and territorial 
        jurisdiction of the United States.</DELETED>
        <DELETED>    (10) Federal law does not apply to many crimes 
        committed outside the United States by members of the Armed 
        Forces who separate from the Armed Forces before they can be 
        identified, thus escaping court martial jurisdiction and, to 
        address this jurisdictional gap, Federal law should be amended 
        to punish serious offenses committed by such persons outside 
        the United States, to the same extent as if those offenses were 
        committed within the special maritime and territorial 
        jurisdiction of the United States.</DELETED>

<DELETED>SEC. 3. COURT-MARTIAL JURISDICTION.</DELETED>

<DELETED>    (a) Jurisdiction During Contingency Operations.--Section 
802(a) of title 10, United States Code (article 2(a) of the Uniform 
Code of Military Justice), is amended by inserting after paragraph (12) 
the following:</DELETED>
        <DELETED>    ``(13) To the extent not covered by paragraphs 
        (10) and (11), persons not members of the armed forces who, in 
        support of an operation designated as a contingency operation 
        as described in section 101(a)(13)(A) of this title, are 
        serving with and accompanying an armed force in a place or 
        places outside the United States specified by the Secretary of 
        Defense, as follows:</DELETED>
                <DELETED>    ``(A) Employees of the Department of 
                Defense.</DELETED>
                <DELETED>    ``(B) Employees of any Department of 
                Defense contractor who are so serving in connection 
                with the performance of a Department of Defense 
                contract.''.</DELETED>
<DELETED>    (b) Effective Date.--The amendment made by subsection (a) 
shall take effect on the date of the enactment of this Act and apply 
with respect to acts or omissions occurring on or after that 
date.</DELETED>

<DELETED>SEC. 4. FEDERAL JURISDICTION.</DELETED>

<DELETED>    (a) Criminal Offenses Committed Outside the United 
States.--Title 18, United States Code, is amended by inserting after 
chapter 211 the following:</DELETED>

<DELETED>``CHAPTER 212--CRIMINAL OFFENSES COMMITTED OUTSIDE THE UNITED 
                            STATES</DELETED>

<DELETED>``Sec.
<DELETED>``3261. Criminal offenses committed by persons formerly 
                            serving with, or presently employed by or 
                            accompanying, the Armed Forces outside the 
                            United States.
<DELETED>``3262. Delivery to authorities of foreign countries.
<DELETED>``3263. Regulations.
<DELETED>``3264. Definitions.
<DELETED>``Sec. 3261. Criminal offenses committed by persons formerly 
              serving with, or presently employed by or accompanying, 
              the Armed Forces outside the United States</DELETED>
<DELETED>    ``(a) In General.--Whoever, while serving with, employed 
by, or accompanying the Armed Forces outside of the United States, 
engages in conduct 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, shall be guilty of a like offense and subject to a like 
punishment.</DELETED>
<DELETED>    ``(b) Concurrent Jurisdiction.--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.</DELETED>
<DELETED>    ``(c) Action by Foreign Government.--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 shall not be delegated.</DELETED>
<DELETED>    ``(d) Arrests.--</DELETED>
        <DELETED>    ``(1) Law enforcement personnel.--The Secretary of 
        Defense may designate and authorize any person serving in a law 
        enforcement position in the Department of Defense to arrest 
        outside of the United States any person described in subsection 
        (a) if there is probable cause to believe that such person 
        engaged in conduct that constitutes a criminal offense under 
        subsection (a).</DELETED>
        <DELETED>    ``(2) Release to civilian law enforcement.--A 
        person arrested under paragraph (1) shall be released 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 
        paragraph unless--</DELETED>
                <DELETED>    ``(A) such person is delivered to 
                authorities of a foreign country under section 3262; 
                or</DELETED>
                <DELETED>    ``(B) such person has had charges brought 
                against him or her under chapter 47 of title 10 for 
                such conduct.</DELETED>
<DELETED>    ``(3) Justifiable delay.--The arrest of a person outside 
the United States by a person designated under paragraph (1), and the 
removal of the arrested person to the United States under paragraph 
(2), are extraordinary circumstances justifying delay in bringing the 
arrested person before a magistrate as required by the fourth amendment 
to the United States Constitution and the Federal Rules of Criminal 
Procedure.</DELETED>
<DELETED>``Sec. 3262. Delivery to authorities of foreign 
              countries</DELETED>
<DELETED>    ``(a) In General.--Any person designated and authorized 
under section 3261(d) 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 engaged in conduct described in section 
3261(a) of this section if--</DELETED>
        <DELETED>    ``(1) the 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</DELETED>
        <DELETED>    ``(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.</DELETED>
<DELETED>    ``(b) Determination by the Secretary.--The Secretary of 
Defense shall determine which officials of a foreign country constitute 
appropriate authorities for purposes of this section.</DELETED>
<DELETED>``Sec. 3263. Regulations</DELETED>
<DELETED>    ``The Secretary of Defense shall issue regulations 
governing the apprehension, detention, and removal of persons under 
this chapter. Such regulations shall be uniform throughout the 
Department of Defense.</DELETED>
<DELETED>``Sec. 3264. Definitions</DELETED>
<DELETED>    ``In this chapter--</DELETED>
        <DELETED>    ``(1) a person is `accompanying the Armed Forces 
        outside of the United States' if the person--</DELETED>
                <DELETED>    ``(A) is a dependent of--</DELETED>
                        <DELETED>    ``(i) a member of the Armed 
                        Forces;</DELETED>
                        <DELETED>    ``(ii) a civilian employee of a 
                        military department or of the Department of 
                        Defense; or</DELETED>
                        <DELETED>    ``(iii) a Department of Defense 
                        contractor, or is a dependent of an employee of 
                        a Department of Defense contractor;</DELETED>
                <DELETED>    ``(B) is residing with such member, 
                civilian employee, contractor, or contractor employee 
                outside the United States; and</DELETED>
                <DELETED>    ``(C) is not a national of or ordinarily 
                resident in the host nation;</DELETED>
        <DELETED>    ``(2) the term `Armed Forces' has the same meaning 
        as in section 101(a)(4) of title 10; and</DELETED>
        <DELETED>    ``(3) a person is `employed by the Armed Forces 
        outside of the United States' if the person--</DELETED>
                <DELETED>    ``(A) is employed as a civilian employee 
                of the Department of Defense, as a Department of 
                Defense contractor, or as an employee of a Department 
                of Defense contractor;</DELETED>
                <DELETED>    ``(B) is present or residing outside of 
                the United States in connection with such employment; 
                and</DELETED>
                <DELETED>    ``(C) is not a national of or ordinarily 
                resident in the host nation.''.</DELETED>
<DELETED>    (b) Clerical Amendment.--The table of chapters at the 
beginning of part II of title 18, United States Code, is amended by 
inserting after the item relating to chapter 211 the 
following:</DELETED>

<DELETED>``212. Criminal Offenses Committed Outside the         3621''.
                            United States.

</DELETED>SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Military and Extraterritorial 
Jurisdiction Act of 1999''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) Civilian employees of the Department of Defense, and 
        civilian employees of Department of Defense contractors, 
        provide critical support to the Armed Forces of the United 
        States that are deployed during a contingency operation.
            (2) Misconduct by such persons undermines good order and 
        discipline in the Armed Forces, and jeopardizes the mission of 
        the contingency operation.
            (3) Military commanders need the legal tools to address 
        adequately misconduct by civilians serving with Armed Forces 
        during a contingency operation.
            (4) In its present state, military law does not permit 
        military commanders to address adequately misconduct by 
        civilians serving with Armed Forces, except in time of a 
        congressionally declared war.
            (5) To address this need, the Uniform Code of Military 
        Justice should be amended to provide for court-martial 
        jurisdiction over civilians serving with Armed Forces in places 
        designated by the Secretary of Defense during a ``contingency 
        operation'' expressly designated as such by the Secretary of 
        Defense.
            (6) This limited extension of court-martial jurisdiction 
        over civilians is dictated by military necessity, is within the 
        constitutional powers of Congress to make rules for the 
        government of the Armed Forces, and, therefore, is consistent 
        with the Constitution of the United States and United States 
        public policy.
            (7) Many thousand civilian employees of the Department of 
        Defense, civilian employees of Department of Defense 
        contractors, and civilian dependents accompany the Armed Forces 
        to installations in foreign countries.
            (8) Misconduct among such civilians has been a longstanding 
        problem for military commanders and other United States 
        officials in foreign countries, and threatens United States 
        citizens, United States property, and United States relations 
        with host countries.
            (9) Federal criminal law does not apply to many offenses 
        committed outside of the United States by such civilians and, 
        because host countries often do not prosecute such offenses, 
        serious crimes often go unpunished and, to address this 
        jurisdictional gap, Federal law should be amended to punish 
        serious offenses committed by such civilians outside the United 
        States, to the same extent as if those offenses were committed 
        within the special maritime and territorial jurisdiction of the 
        United States.
            (10) Federal law does not apply to many crimes committed 
        outside the United States by members of the Armed Forces who 
separate from the Armed Forces before they can be identified, thus 
escaping court-martial jurisdiction and, to address this jurisdictional 
gap, Federal law should be amended to punish serious offenses committed 
by such persons outside the United States, to the same extent as if 
those offenses were committed within the special maritime and 
territorial jurisdiction of the United States.

SEC. 3. COURT-MARTIAL JURISDICTION.

    (a) Jurisdiction During Contingency Operations.--Section 802(a) of 
title 10, United States Code (article 2(a) of the Uniform Code of 
Military Justice), is amended by inserting after paragraph (12) the 
following:
            ``(13) To the extent not covered by paragraphs (10) and 
        (11), persons not members of the armed forces who, in support 
        of a contingency operation described in section 101(a)(13)(B) 
        of this title, are serving with and accompanying an armed force 
        in a place or places outside the United States specified by the 
        Secretary of Defense, as follows:
                    ``(A) Employees of the Department of Defense.
                    ``(B) Employees of any Department of Defense 
                contractor who are so serving in connection with the 
                performance of a Department of Defense contract.''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
take effect on the date of the enactment of this Act and apply with 
respect to acts or omissions occurring on or after that date.

SEC. 4. FEDERAL JURISDICTION.

    (a) Criminal Offenses Committed Outside the United States.--Title 
18, United States Code, is amended by inserting after chapter 211 the 
following:

  ``CHAPTER 212--CRIMINAL OFFENSES COMMITTED OUTSIDE THE UNITED 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.
``Sec. 3261. Criminal offenses committed by persons formerly serving 
              with, or presently employed by or accompanying, the Armed 
              Forces outside the United States
    ``(a) In General.--Whoever, while serving with, employed by, or 
accompanying the Armed Forces outside of the United States, engages in 
conduct 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, shall be 
guilty of a like offense and subject to a like punishment.
    ``(b) Concurrent Jurisdiction.--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.
    ``(c) Action by Foreign Government.--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 shall not be delegated.
    ``(d) Arrests.--
            ``(1) Law enforcement personnel.--The Secretary of Defense 
        may designate and authorize any person serving in a law 
        enforcement position in the Department of Defense to arrest 
        outside of the United States any person described in subsection 
        (a) if there is probable cause to believe that such person 
        engaged in conduct that constitutes a criminal offense under 
        subsection (a).
            ``(2) Release to civilian law enforcement.--A person 
        arrested under paragraph (1) shall be released 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 paragraph unless--
                    ``(A) such person is delivered to authorities of a 
                foreign country under section 3262; or
                    ``(B) such person has had charges brought against 
                him or her under chapter 47 of title 10 for such 
                conduct.
``Sec. 3262. Delivery to authorities of foreign countries
    ``(a) In General.--Any person designated and authorized under 
section 3261(d) 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 engaged in conduct described in section 3261(a) of 
this section if--
            ``(1) the 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) Determination by the Secretary.--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. 3263. Regulations
    ``The Secretary of Defense shall issue regulations governing the 
apprehension, detention, and removal of persons under this chapter. 
Such regulations shall be uniform throughout the Department of Defense.
``Sec. 3264. Definitions
    ``In this chapter--
            ``(1) a person is `accompanying the Armed Forces outside of 
        the United States' if the person--
                    ``(A) is a dependent of--
                            ``(i) a member of the Armed Forces;
                            ``(ii) a civilian employee of a military 
                        department or of the Department of Defense; or
                            ``(iii) a Department of Defense contractor 
                        or an employee of a Department of Defense 
                        contractor;
                    ``(B) is residing with such member, civilian 
                employee, contractor, or contractor employee outside 
                the United States; and
                    ``(C) is not a national of or ordinarily resident 
                in the host nation;
            ``(2) the term `Armed Forces' has the same meaning as in 
        section 101(a)(4) of title 10; and
            ``(3) a person is `employed by the Armed Forces outside of 
        the United States' if the person--
                    ``(A) is employed as a civilian employee of the 
                Department of Defense, as a Department of Defense 
                contractor, or as an employee of a Department of 
                Defense contractor;
                    ``(B) is present or residing outside of the United 
                States in connection with such employment; and
                    ``(C) is not a national of or ordinarily resident 
                in the host nation.''.
    (b) Clerical Amendment.--The table of chapters at the beginning of 
part II of title 18, United States Code, is amended by inserting after 
the item relating to chapter 211 the following:

``212. Criminal Offenses Committed Outside the United States    3621''.