[Congressional Record Volume 157, Number 94 (Tuesday, June 28, 2011)]
[Senate]
[Pages S4148-S4149]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      INTENTION TO OBJECT--S.1145



 =========================== NOTE =========================== 

  
  On page S4148, June 28, 2011, the Record reads: NOTICE OF INTENT
  
  The online Record has been corrected to read: INTENTION TO 
OBJECT-S. 1145


 ========================= END NOTE ========================= 

  Mr. GRASSLEY. Mr. President, I would like to alert my colleagues that 
I intend to object to any unanimous consent agreement for the 
consideration of S. 1145, the Civilian Extraterritorial Jurisdiction 
Act, CEJA. While I joined in supporting a vote to report S. 1145 out of 
the Judiciary Committee, my vote does not signal my support for the 
legislation in its current form. Unless changes are made to address my 
concerns with the legislation, I will continue to object.
  I oppose S. 1145 in its current form because it does not include a 
sufficient carve-out for intelligence, law enforcement, or protective 
assignments by U.S. Government employees abroad. The current version of 
S. 1145 does include a carve-out for intelligence activities, but the 
current version of the intelligence carve-out is problematic. There is 
repetition in the language and extraneous language is unnecessary. 
Further, under the current carve-out an intelligence agent may not be 
protected from prosecution, even though he was authorized to undertake 
an operation. The current provision in the bill would require that a 
supervisor's directive be authorized and also be ``consistent with 
applicable U.S. law.'' This extra requirement opens up a world of 
questions. How should an agent in the field know his supervisor's 
instruction was ``consistent with applicable U.S. law''? Will this 
provision now require agents to obtain a legal opinion before they take 
action? This is not the message we should be sending to the agents in 
the field.
  Instead, I proposed a carve-out in the Judiciary Committee that would 
exclude government employees performing intelligence, law enforcement, 
and protective assignments abroad. This version was based upon existing 
U.S. law that some members of the Judiciary Committee previously 
supported. If the carve-out I proposed is good enough for employees 
operating inside the United States, it should be good enough for those 
operating abroad. Why would we give agents operating in the U.S. more 
protections than those operating in foreign lands?
  Further, the current carve-out in S. 1145 is not the preferred 
language that the intelligence community proposed at the beginning of 
negotiations. If past is any prologue, this appears to be yet another 
instance where the intelligence community is settling for language it 
can ``live with'' as opposed to the optimal language it should be 
seeking. This same problem occurred in negotiations during 
consideration of legislation extending the three expiring provisions of 
the USA PATRIOT Act. Ultimately, extraneous language that would have 
restricted the ability of law enforcement and the intelligence 
community was removed from the extension of the PATRIOT Act authorities 
and a similar outcome should occur on CEJA.
  I also oppose S. 1145 in its current form because the legislation 
does not

[[Page S4149]]

currently include the Unborn Victims of Violence Act, UVVA, in the list 
of covered offenses that would apply to crime victims abroad. The UVVA 
applies to violent Federal crimes in the United States, and to 
employees and contractors of the Department of Defense abroad under the 
Military Extraterritorial Jurisdiction Act. There is no reason that 
extending the long arm of Federal criminal law expanded under CEJA 
should exclude the UVVA.
  No one would dispute the importance of holding government employees 
and contractors accountable abroad. I support the idea of this 
legislation because we should never have government employees or 
contractors committing serious crimes like rape or murder abroad with 
impunity. However, we need to think long and hard about the 
consequences of our actions if we legislate criminal extraterritorial 
jurisdiction too broadly absent a sufficient carve-out for authorized 
intelligence, law enforcement, and protective activities.
  Until these concerns are addressed and further changes are included 
in the bill, I support holding this legislation on the Senate floor. No 
one should take my support for reporting this bill out of committee to 
mean anything more than an expression of my willingness to work with 
the sponsors on this topic to address these concerns going forward.

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