[Congressional Record (Bound Edition), Volume 145 (1999), Part 10]
[Senate]
[Pages 14898-14899]
[From the U.S. 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

[[Page 14899]]

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 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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