[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.

                          ____________________