[Congressional Record Volume 145, Number 95 (Wednesday, June 30, 1999)]
[Senate]
[Pages S7925-S7926]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE MILITARY AND EXTRATER-RITORIAL JURISDICTION ACT OF 1999
Mr. LEAHY. Mr. President, I support S. 768, which was significantly
improved during the Judiciary Committee mark up with a substitute
amendment that I cosponsored with Senators Sessions and DeWine. This
important legislation will close a gap in Federal law that has existed
for many years. S. 768 establishes authority for Federal jurisdiction
over crimes committed by individuals accompanying our military overseas
and court-martial jurisdiction over Department of Defense employees and
contractors accompanying the Armed Forces on contingency missions
outside the United States during times of war or national emergency
declared by the President or the Congress.
Civilians accompanying the Armed Forces have been subject to court-
martial jurisdiction when ``accompanying or serving with the Armies of
the United States in the field'' since the Revolutionary War. See
McCune v. Kilpatrick, 53 F. Supp. 80, 84 (E.D. Va. 1943). It is only
since the start of the Cold War that American troops, accompanied by
civilian dependents and employees, have been stationed overseas in
peace time. Provisions of the Uniform Code of Military Justice provide
for the court-martial of civilians accused of crimes while accompanying
the armed forces in times of peace or war. The provisions allowing for
peace time court-martial of civilians were found unconstitutional by a
series of Supreme Court cases beginning with Reid v. Covert, 354 U.S. 1
(1957). With foreign nations often not interested in prosecuting crimes
against Americans, particularly when committed by an American, the
result is a jurisdictional ``gap'' that allows some civilians to
literally get away with murder.
A report by the Overseas Jurisdiction Advisory Committee submitted to
Congress in 1997, cited cases in which host countries declined to
prosecute serious crimes committed by civilians accompanying our Armed
Forces. These cases involved the sexual molestation of dependent girls,
the stabbing of a serviceman and drug trafficking to soldiers. The
individuals who committed these crimes against service men and women or
their dependents were not prosecuted in the host country and were free
to return to the United States and continue their lives as if the
incidents had never occurred. The victims of these awful crimes are
left with no redress for the suffering they endured.
This inability to exercise Federal jurisdiction over individuals
accompanying our armed forces overseas has caused problems. During the
Vietnam War, Federal jurisdiction over civilians was not permissible
since war was never declared by the Congress. Major General George S.
Prugh said, in his text on legal issues arising during the Vietnam War,
that the inability to discipline civilians ``became a cause for major
concern to the U.S. command.''
More recently, Operation Desert Storm involved the deployment of
4,500 Department of Defense civilians and at least 3,000 contractor
employees. Similarly large deployments of civilians have been repeated
in contingency operations in Somalia, Haiti, Kuwait and Rwanda.
Although crime by civilians accompanying our armed forces in Operation
Desert Storm was rare, the Department of Defense did report that four
of its civilian employees were involved in significant criminal
misconduct ranging from transportation of illegal firearms to larceny
and receiving stolen property. One of these civilians was suspended
without pay for 30 days while no action was taken on the remaining
three.
Due to the lack of Federal jurisdiction over civilians in a foreign
country, administrative remedies such as dismissal from the job,
banishment from the base, suspension without pay, or returning the
person to the United States are often the only remedies available to
military authorities to deal with civilian offenders. The inadequacy of
these remedies to address the criminal activity of civilians
accompanying our Armed Forces overseas results in a lack of deterrence
and an inequity due to the harsher sanctions imposed upon military
personnel who committed the same crimes as civilians.
I expect the deployment of civilians in Kosovo and elsewhere will be
relatively crime free, but regardless of the frequency of its use, the
gap that allows individuals accompanying our military personnel
overseas to go unpunished for heinous crimes must be closed. Our
service men and women and those accompanying them deserve justice when
they are victims of crime. That is why I introduced this provision as
part of the Safe Schools, Safe Streets and Secure Borders Act with
other Democratic Members, both last year as S. 2484 and again on
January 19 of this year, as S. 9.
I had some concerns with certain aspects of S. 768 that were not
included in my version of this legislation, and I am pleased that we
were able to address those concerns in the Sessions-Leahy-DeWine
substitute. For example, the original bill would have extended court-
martial jurisdiction over DOD employees and contractors accompanying
our Armed Forces overseas. The Supreme Court in Reid v. Covert, 354
U.S. 1 (1957), Kinsella v. Singleton, 361 U.S. 234 (1960) and Toth v.
Quarles, 350 U.S. 11 (1955), has made clear that court-martial
jurisdiction may not be constitutionally applied to crimes committed in
peacetime by persons accompanying the armed forces overseas, or to
crimes committed by a former member of the armed services.
The substitute makes clear that this extension of court-martial
jurisdiction applies only in times when the armed forces are engaged in
a ``contingency operation'' involving a war or national emergency
declared by the Congress or
[[Page S7926]]
the President. I believe this comports with the Supreme Court rulings
on this issue and cures any constitutional infirmity with the original
language.
In addition, the original bill would have deemed any delay in
bringing a person before a magistrate due to transporting the person
back to the U.S. from overseas as ``justifiable.'' I was concerned that
this provision could end up excusing lengthy and unreasonable delays in
getting a civilian, who was arrested overseas, before a U.S.
Magistrate, and thereby raise yet other constitutional concerns.
The Sessions-Leahy-DeWine substitute cures that potential problem by
removing the problematic provision and relying instead on Rule 5 of the
Federal Rules of Criminal Procedure. This rule requires that an
arrested person be brought before a magistrate to answer charges
without unnecessary delays, and will apply to the removal of a civilian
from overseas to answer charges in the United States.
Finally, S. 768 as introduced authorized the Department of Defense to
determine which foreign officials constitute the appropriate
authorities to whom an arrested civilian should be delivered. In my
proposal for this legislation I required that DOD make this
determination in consultation with the Department of State. I felt this
would help avoid international faux pax. I am pleased that the
Sessions-Leahy substitute adopted my approach to this issue and
requires consultation with the Department of State.
I am glad the legislation which I and other Democratic members of the
Judiciary Committee originally introduced both last year and again on
January 19 of this year, is finally being considered, and I urge its
prompt passage.
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