[Congressional Record Volume 146, Number 136 (Thursday, October 26, 2000)]
[Senate]
[Pages S11181-S11184]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MILITARY EXTRATERRITORIAL JURISDICTION ACT OF 2000
Mr. BROWNBACK. Mr. President, I ask the Chair lay before the Senate a
message from the House of Representatives on the bill S. 768.
The PRESIDING OFFICER laid before the Senate the following message
from the House of Representatives.
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--
[[Page S11182]]
``(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.''.
Mr. SESSIONS. Mr. President, I commend my colleague from Vermont,
Senator Leahy, for his support in getting this bill passed. Our Armed
Forces and their families are in desperate need of this legislation and
it has been a long time coming. This legislation
[[Page S11183]]
closes a legal loophole which prevented effective prosecution of
certain crime committed by civilians accompanying the Armed Forces
overseas. When civilian dependents, contractors, and Federal employees
go overseas with the military, the Uniform Code of Military Justice and
the Federal criminal code generally do not apply to them. Therefore, if
one of these civilians commits a criminal act--even a serious one such
as rape or child molestation--then he or she could be beyond the reach
of Federal law if the foreign authorities refuse or neglect to
prosecute. Surprisingly, host countries often choose to not prosecute
American civilians, especially where the crime was committed against
another American or against property owned by an American or the U.S.
Government. That is why this legislation is needed.
Since this legislation initially passed the Senate on July 1, 1999,
the House of Representatives, under the leadership of Representative
McCollum of Florida, took the bill and further refined it based upon
concerns that arose after Senate Consideration. In addition, Mr.
McCollum submitted House Report 106-778 to accompany the House version
of the bill--H.R. 3380. This report does an outstanding job of
outlining the background and need for this legislation. The report also
includes a section-by-section analysis and discussion of the
legislation. We have agreed to incorporate the text of H.R. 3380 into
this final bill. I have reviewed House Report 106-778, and I agree with
it. I believe that report reflects the intentions of the Senate. At
this time, I yield to my distinguished colleague from Vermont.
Mr. LEAHY. Thank you, Senator Sessions. Mr. President, I too, want to
congratulate and commend my distinguished colleague from Alabama for
his leadership and perseverance in getting this legislation passed. I
fully support S. 768, which I believe was significantly improved with
this most recent substitute amendment. The due process considerations
regarding appearances before U.S. Magistrates before removing civilians
from overseas were added after earlier Senate consideration and, I
believe, improve the bill. This important legislation will close a gap
in Federal law that has existed for many years. 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. The House Report 106-778, which Senator Sessions just
referred to a moment ago, outlines many of the problems resulting from
this loophole. I agree with Senator Sessions with respect to the
report. I am glad this legislation will pass this Congress because the
gap that has allowed individuals accompanying our military personnel
overseas to go unpunished for heinous crimes must be closed. That is
why I have been a strong proponent and co-sponsor of this legislation.
I yield the floor.
Mr. LEAHY. Mr. President, I am pleased that the Senate is voting on
final passage of S. 768, the Military and Extraterritorial Jurisdiction
Act. I have worked on this issue for some time now and believe that the
Congress should promptly move forward with this important legislation.
Specifically, in the last Congress, I originally introduced most of
the provisions in this bill as part of the comprehensive crime bill, S.
2484, the Safe Schools, Safe Streets and Secure Borders Act of 1998. On
the first day of this Congress, I again included these provisions in S.
9, the Safe Schools, Safe Streets and Secure Borders Act of 1999. Last
year, I was pleased to join Senators Sessions and DeWine in supporting
the Sessions-Leahy-DeWine substitute amendment to S. 768, which was
reported favorably by the Senate Judiciary Committee and then passed
unanimously by the Senate on July 1, 1999, over a year ago. The bill
then sat in a House subcommittee for almost one year until the House of
Representatives finally took action in late July, 2000 to consider and
pass an amended version of S. 768.
S. 768 closes a gap in federal law that has existed for many years
and permitted individuals who accompanied military personnel overseas
to ``get away with murder.'' Foreign nations often have no interest in
vindicating crimes against American servicemen stationed overseas,
particularly when committed by Americans, The lack of Federal
jurisdiction over such crimes has allowed the perpetrators to go
unpunished. This bill establishes authority for, and sets up procedures
to implement the exercise of, Federal jurisdiction over felony crimes
committed by certain people overseas.
I had some concerns with certain aspects of S. 768, as originally
introduced, and worked to address those concerns and improve the bill
in the Sessions-Leahy-DeWine substitute amendment. For example, the
original bill would have extended court-martial jurisdiction over DOD
employees and contractors whenever they accompanied our Armed Forces
overseas. I was concerned that this extension of court-martial
jurisdiction ran afoul of the Supreme Court's decisions 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). Those rulings 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.
We made progress in the Sessions--Leahy-DeWine substitute amendment
passed by the Senate to limit the proposed extension of court-martial
jurisdiction to DOD employees and contractors, and ensure its
application only in times when the armed forces are engaged in
``contingency operation'' involving a war or national emergency
declared by the Congress or the President. While his correction would,
in my view, have comported with the Supreme Court rulings on this issue
and cured any constitutional infirmity with the original language, I
appreciate the action of the House to remove altogether this section of
the bill, which had originally given me concern.
In addition, the original bill contained a provision that 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 due
process and other constitutional concerns.
The Sessions-Leahy-DeWine substitute cured that potential problem by
eliminating the ``justifiable'' delay provision in the original bill.
Thus, the general standard from Federal Rule of Criminal Procedure 5
about avoiding unnecessary delays in bringing an arrested person before
a magistrate would apply to the removal of a civilian from overseas to
answer charges in the United States.
The House has made further improvements to the removal and detention
procedures in the bill, and I support them. In particular, the House
has clarified the procedures necessary to protect the rights of the
accused in both removal and detention hearings, and to facilitate and
expedite the conduct of initial appearances by the accused before
federal magistrate judges.
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. I urged
that DOD make this determination in consultation with the Department of
State, and the Sessions-Leahy-DeWine substitute amendment adopted such
a consultation requirement. I am pleased that the House maintained this
part of the substitute amendment in House-passed version of the
legislation and requires consultation with the Department of State.
The inaction of the Congress on closing the jurisdictional gap that
has existed over the criminal actions of civilian on military
installations overseas has been the source of terrible injustice. For
example, most recently the Second Circuit Court of Appeals was
compelled to reverse a conviction and dismiss an indictment of sexual
abuse of a minor committed by a civilian at a military base in Germany.
The Court took the ``unusual step of directing the Clerk of the court
to forward a copy this opinion'' to the relevant Committees of the
Congress. We have gotten our wake-up call and should waste no more time
to send this legislation to the President.
[[Page S11184]]
Mr. BROWNBACK. Mr. President, I ask unanimous consent that the Senate
agree to the amendments of the House.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________