[Congressional Record (Bound Edition), Volume 145 (1999), Part 11]
[Senate]
[Pages 15344-15348]
[From the U.S. Government Publishing Office, www.gpo.gov]




                      MILITARY AND EXTRATERRITO- 
                     RIAL JURISDICTION ACT OF 1999

  Mr. GORTON. Mr. President, I ask unanimous consent that the Senate 
proceed to the consideration of calendar No. 167, S. 768.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       A bill (S. 768) to establish court-martial jurisdiction 
     over civilians serving in the Armed Forces during contingency 
     operations, and to establish Federal jurisdiction over crimes 
     committed outside of the United States by former members of 
     the Armed Forces and civilians accompanying the Armed Forces 
     outside the United States.

  There being no objection, the Senate proceeded to consider the bill, 
which had been reported from the Committee on the Judiciary, with an 
amendment to strike all after the enacting clause and inserting in lieu 
thereof the following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Military and 
     Extraterritorial Jurisdiction Act of 1999''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) Civilian employees of the Department of Defense, and 
     civilian employees of Department of Defense contractors, 
     provide critical support to the Armed Forces of the United 
     States that are deployed during a contingency operation.
       (2) Misconduct by such persons undermines good order and 
     discipline in the Armed Forces, and jeopardizes the mission 
     of the contingency operation.
       (3) Military commanders need the legal tools to address 
     adequately misconduct by civilians serving with Armed Forces 
     during a contingency operation.
       (4) In its present state, military law does not permit 
     military commanders to address adequately misconduct by 
     civilians serving with Armed Forces, except in time of a 
     congressionally declared war.
       (5) To address this need, the Uniform Code of Military 
     Justice should be amended to provide for court-martial 
     jurisdiction over civilians serving with Armed Forces in 
     places designated by the Secretary of Defense during a 
     ``contingency operation'' expressly designated as such by the 
     Secretary of Defense.
       (6) This limited extension of court-martial jurisdiction 
     over civilians is dictated by military necessity, is within 
     the constitutional powers of Congress to make rules for the 
     government of the Armed Forces, and, therefore, is consistent 
     with the Constitution of the United States and United States 
     public policy.
       (7) Many thousand civilian employees of the Department of 
     Defense, civilian employees of Department of Defense 
     contractors, and civilian dependents accompany the Armed 
     Forces to installations in foreign countries.
       (8) Misconduct among such civilians has been a longstanding 
     problem for military commanders and other United States 
     officials in foreign countries, and threatens United States 
     citizens, United States property, and United States relations 
     with host countries.
       (9) Federal criminal law does not apply to many offenses 
     committed outside of the United States by such civilians and, 
     because host countries often do not prosecute such offenses, 
     serious crimes often go unpunished and, to address this 
     jurisdictional gap, Federal law should be amended to punish 
     serious offenses committed by such civilians outside the 
     United States, to the same extent as if those offenses were 
     committed within the special maritime and territorial 
     jurisdiction of the United States.
       (10) Federal law does not apply to many crimes committed 
     outside the United States by members of the Armed Forces who 
     separate from the Armed Forces before they can be identified, 
     thus escaping court-martial jurisdiction and, to address this 
     jurisdictional gap, Federal law should be amended to punish 
     serious offenses committed by such persons outside the United 
     States, to the same extent as if those offenses were 
     committed within the special maritime and territorial 
     jurisdiction of the United States.

     SEC. 3. COURT-MARTIAL JURISDICTION.

       (a) Jurisdiction During Contingency Operations.--Section 
     802(a) of title 10, United States Code (article 2(a) of the 
     Uniform Code of Military Justice), is amended by inserting 
     after paragraph (12) the following:
       ``(13) To the extent not covered by paragraphs (10) and 
     (11), persons not members of the armed forces who, in support 
     of a contingency operation described in section 101(a)(13)(B) 
     of this title, are serving with and accompanying an armed 
     force in a place or places outside the United States 
     specified by the Secretary of Defense, as follows:
       ``(A) Employees of the Department of Defense.
       ``(B) Employees of any Department of Defense contractor who 
     are so serving in connection with the performance of a 
     Department of Defense contract.''.

[[Page 15345]]

       (b) Effective Date.--The amendment made by subsection (a) 
     shall take effect on the date of the enactment of this Act 
     and apply with respect to acts or omissions occurring on or 
     after that date.

     SEC. 4. FEDERAL JURISDICTION.

       (a) Criminal Offenses Committed Outside the United 
     States.--Title 18, United States Code, is amended by 
     inserting after chapter 211 the following:

  ``CHAPTER 212--CRIMINAL OFFENSES COMMITTED OUTSIDE THE UNITED STATES

``Sec.
``3261. Criminal offenses committed by persons formerly serving with, 
              or presently employed by or accompanying, the Armed 
              Forces outside the United States.
``3262. Delivery to authorities of foreign countries.
``3263. Regulations.
``3264. Definitions.

     ``Sec. 3261. Criminal offenses committed by persons formerly 
       serving with, or presently employed by or accompanying, the 
       Armed Forces outside the United States

       ``(a) In General.--Whoever, while serving with, employed 
     by, or accompanying the Armed Forces outside of the United 
     States, engages in conduct 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, shall be 
     guilty of a like offense and subject to a like punishment.
       ``(b) Concurrent Jurisdiction.--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.
       ``(c) Action by Foreign Government.--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 shall not be delegated.
       ``(d) Arrests.--
       ``(1) Law enforcement personnel.--The Secretary of Defense 
     may designate and authorize any person serving in a law 
     enforcement position in the Department of Defense to arrest 
     outside of the United States any person described in 
     subsection (a) if there is probable cause to believe that 
     such person engaged in conduct that constitutes a criminal 
     offense under subsection (a).
       ``(2) Release to civilian law enforcement.--A person 
     arrested under paragraph (1) shall be released 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 paragraph unless--
       ``(A) such person is delivered to authorities of a foreign 
     country under section 3262; or
       ``(B) such person has had charges brought against him or 
     her under chapter 47 of title 10 for such conduct.

     ``Sec. 3262. Delivery to authorities of foreign countries

       ``(a) In General.--Any person designated and authorized 
     under section 3261(d) 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 engaged in 
     conduct described in section 3261(a) of this section if--
       ``(1) the 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) Determination by the Secretary.--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. 3263. Regulations

       ``The Secretary of Defense shall issue regulations 
     governing the apprehension, detention, and removal of persons 
     under this chapter. Such regulations shall be uniform 
     throughout the Department of Defense.

     ``Sec. 3264. Definitions

       ``In this chapter--
       ``(1) a person is `accompanying the Armed Forces outside of 
     the United States' if the person--
       ``(A) is a dependent of--
       ``(i) a member of the Armed Forces;
       ``(ii) a civilian employee of a military department or of 
     the Department of Defense; or
       ``(iii) a Department of Defense contractor or an employee 
     of a Department of Defense contractor;
       ``(B) is residing with such member, civilian employee, 
     contractor, or contractor employee outside the United States; 
     and
       ``(C) is not a national of or ordinarily resident in the 
     host nation;
       ``(2) the term `Armed Forces' has the same meaning as in 
     section 101(a)(4) of title 10; and
       ``(3) a person is `employed by the Armed Forces outside of 
     the United States' if the person--
       ``(A) is employed as a civilian employee of the Department 
     of Defense, as a Department of Defense contractor, or as an 
     employee of a Department of Defense contractor;
       ``(B) is present or residing outside of the United States 
     in connection with such employment; and
       ``(C) is not a national of or ordinarily resident in the 
     host nation.''.
       (b) Clerical Amendment.--The table of chapters at the 
     beginning of part II of title 18, United States Code, is 
     amended by inserting after the item relating to chapter 211 
     the following:

``212. Criminal Offenses Committed Outside the United States3621''.....


                           Amendment No. 1226

              (Purpose: To provide a complete substitute)

  Mr. GORTON. Mr. President, I send an amendment to the desk on behalf 
of Mr. DeWine and Mr. Leahy and ask for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Washington [Mr. Gorton], for Mr. Sessions, 
     for himself, Mr. Leahy, and Mr. DeWine, proposes an amendment 
     numbered 1226.

  Mr. GORTON. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Military and 
     Extraterritorial Jurisdiction Act of 1999''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) Civilian employees of the Department of Defense, and 
     civilian employees of Department of Defense contractors, 
     provide critical support to the Armed Forces of the United 
     States that are deployed during a contingency operation.
       (2) Misconduct by such persons undermines good order and 
     discipline in the Armed Forces, and jeopardizes the mission 
     of the contingency operation.
       (3) Military commanders need the legal tools to address 
     adequately misconduct by civilians serving with Armed Forces 
     during a contingency operation.
       (4) In its present state, military law does not permit 
     military commanders to address adequately misconduct by 
     civilians serving with Armed Forces, except in time of a 
     congressionally declared war.
       (5) To address this need, the Uniform Code of Military 
     Justice should be amended to provide for court-martial 
     jurisdiction over civilians serving with Armed Forces in 
     places designated by the Secretary of Defense during a 
     ``contingency operation'' expressly designated as such by the 
     Secretary of Defense.
       (6) This limited extension of court-martial jurisdiction 
     over civilians is dictated by military necessity, is within 
     the constitutional powers of Congress to make rules for the 
     government of the Armed Forces, and, therefore, is consistent 
     with the Constitution of the United States and United States 
     public policy.
       (7) Many thousand civilian employees of the Department of 
     Defense, civilian employees of Department of Defense 
     contractors, and civilian dependents accompany the Armed 
     Forces to installations in foreign countries.
       (8) Misconduct among such civilians has been a longstanding 
     problem for military commanders and other United States 
     officials in foreign countries, and threatens United States 
     citizens, United States property, and United States relations 
     with host countries.
       (9) Federal criminal law does not apply to many offenses 
     committed outside of the United States by such civilians and, 
     because host countries often do not prosecute such offenses, 
     serious crimes often go unpunished and,to address this 
     jurisdictional gap, Federal law should be amended to punish 
     serious offenses committed by such civilians outside the 
     United States, to the same extent as if those offenses were 
     committed within the special maritime and territorial 
     jurisdiction of the United States.
       (10) Federal law does not apply to many crimes committed 
     outside the United States by members of the Armed Forces who 
     separate from the Armed Forces before they can be identified, 
     thus escaping court-martial jurisdiction and, to address this 
     jurisdictional gap, Federal law should be amended to punish 
     serious offenses committed by such persons outside the United 
     States, to the same extent as if those offenses were 
     committed within the special maritime and territorial 
     jurisdiction of the United States.

     SEC. 3. COURT-MARTIAL JURISDICTION.

       (a) Jurisdiction During Contingency Operations.--Section 
     802(a) of title 10, United States Code (article 2(a) of the 
     Uniform Code of Military Justice), is amended by inserting 
     after paragraph (12) the following:
       ``(13) To the extent not covered by paragraphs (10) and 
     (11), persons not members of

[[Page 15346]]

     the armed forces who, in support of a contingency operation 
     described in section 101(a)(13)(B) of this title, are serving 
     with and accompanying an armed force in a place or places 
     outside the United States specified by the Secretary of 
     Defense, as follows:
       ``(A) Employees of the Department of Defense.
       ``(B) Employees of any Department of Defense contractor who 
     are so serving in connection with the performance of a 
     Department of Defense contract.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall take effect on the date of the enactment of this Act 
     and apply with respect to acts or omissions occurring on or 
     after that date.

     SEC. 4. FEDERAL JURISDICTION.

       (a) Criminal Offenses Committed Outside the United 
     States.--Title 18, United States Code, is amended by 
     inserting after chapter 211 the following:

  ``CHAPTER 212--CRIMINAL OFFENSES COMMITTED OUTSIDE THE UNITED STATES

``Sec.
``3261. Criminal offenses committed by persons formerly serving with, 
              or presently employed by or accompanying, the Armed 
              Forces outside the United States.
``3262. Delivery to authorities of foreign countries.
``3263. Regulations.
``3264. Definitions.

     ``Sec. 3261. Criminal offenses committed by persons formerly 
       serving with, or presently employed by or accompanying, the 
       Armed Forces outside the United States

       ``(a) In General.--Whoever, while serving with, employed 
     by, or accompanying the Armed Forces outside of the United 
     States, engages in conduct 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, shall be 
     guilty of a like offense and subject to a like punishment.
       ``(b) Concurrent Jurisdiction.--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.
       ``(c) Action by Foreign Government.--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 shall not be delegated.
       ``(d) Arrests.--
       ``(1) Law enforcement personnel.--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 of the United States any person described in 
     subsection (a) if there is probable cause to believe that 
     such person engaged in conduct that constitutes a criminal 
     offense under subsection (a).
       ``(2) Release to civilian law enforcement.--A person 
     arrested under paragraph (1) shall be released 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 paragraph unless--
       ``(A) such person is delivered to authorities of a foreign 
     country under section 3262; or
       ``(B) such person has had charges brought against him or 
     her under chapter 47 of title 10 for such conduct.

     ``Sec. 3262. Delivery to authorities of foreign countries

       ``(a) In General.--Any person designated and authorized 
     under section 3261(d) 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 engaged in 
     conduct described in section 3261(a) of this section if--
       ``(1) the 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) Determination by the Secretary.--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. 3263. Regulations

       ``(a) In General.--The Secretary of Defense, after 
     consultation with the Secretary of State and the Attorney 
     General, shall issue regulations governing the apprehension, 
     detention, and removal of persons under this chapter. Such 
     regulations shall be uniform throughout the Department of 
     Defense.
       ``(b) Notice to Third Party Nationals.--
       ``(1) In general.--The Secretary of Defense, after 
     consultation with the Secretary of State, shall issue 
     regulations requiring that, to the maximum extent 
     practicable, notice shall be provided to any person serving 
     with, 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) Failure to provide notice.--The failure to provide 
     notice as prescribed in the regulations issued 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.

     ``Sec. 3264. Definitions

       ``In this chapter--
       ``(1) a person is `accompanying the Armed Forces outside of 
     the United States' if the person--
       ``(A) is a dependent of--
       ``(i) a member of the Armed Forces;
       ``(ii) a civilian employee of a military department or of 
     the Department of Defense; or
       ``(iii) a Department of Defense contractor or an employee 
     of a Department of Defense contractor;
       ``(B) is residing with such member, civilian employee, 
     contractor, or contractor employee outside the United States; 
     and
       ``(C) is not a national of or ordinarily resident in the 
     host nation;
       ``(2) the term `Armed Forces' has the same meaning as in 
     section 101(a)(4) of title 10; and
       ``(3) a person is `employed by the Armed Forces outside of 
     the United States' if the person--
       ``(A) is employed as a civilian employee of the Department 
     of Defense, as a Department of Defense contractor, or as an 
     employee of a Department of Defense contractor;
       ``(B) is present or residing outside of the United States 
     in connection with such employment; and
       ``(C) is not a national of or ordinarily resident in the 
     host nation.''.
       (b) Clerical Amendment.--The table of chapters at the 
     beginning of part II of title 18, United States Code, is 
     amended by inserting after the item relating to chapter 211 
     the following:

``212. Criminal Offenses Committed Outside the United States3621''.....

  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-marital 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

[[Page 15347]]

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. Maj. Gen. 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 insignificant 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 United States 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.
  Mr. GORTON. Mr. President, I ask unanimous consent that the amendment 
be agreed to, the committee amendment be agreed to, as amended, the 
bill be read the third time, and passed, the motion to reconsider be 
laid upon the table, and that any statements relating to the bill 
appear at this point in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 1226) was agreed to.
  The committee amendment, as amended, was agreed to.
  The bill (S. 768), as amended, was read the third time, and passed.

                                 S. 768

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Military and 
     Extraterritorial Jurisdiction Act of 1999''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) Civilian employees of the Department of Defense, and 
     civilian employees of Department of Defense contractors, 
     provide critical support to the Armed Forces of the United 
     States that are deployed during a contingency operation.
       (2) Misconduct by such persons undermines good order and 
     discipline in the Armed Forces, and jeopardizes the mission 
     of the contingency operation.
       (3) Military commanders need the legal tools to address 
     adequately misconduct by civilians serving with Armed Forces 
     during a contingency operation.
       (4) In its present state, military law does not permit 
     military commanders to address adequately misconduct by 
     civilians serving with Armed Forces, except in time of a 
     congressionally declared war.
       (5) To address this need, the Uniform Code of Military 
     Justice should be amended to provide for court-martial 
     jurisdiction over civilians serving with Armed Forces in 
     places designated by the Secretary of Defense during a 
     ``contingency operation'' expressly designated as such by the 
     Secretary of Defense.
       (6) This limited extension of court-martial jurisdiction 
     over civilians is dictated by military necessity, is within 
     the constitutional powers of Congress to make rules for the 
     government of the Armed Forces, and, therefore, is consistent 
     with the Constitution of the United States and United States 
     public policy.
       (7) Many thousand civilian employees of the Department of 
     Defense, civilian employees of Department of Defense 
     contractors, and civilian dependents accompany the Armed 
     Forces to installations in foreign countries.
       (8) Misconduct among such civilians has been a longstanding 
     problem for military commanders and other United States 
     officials in foreign countries, and threatens United States 
     citizens, United States property, and United States relations 
     with host countries.
       (9) Federal criminal law does not apply to many offenses 
     committed outside of the United States by such civilians and, 
     because host countries often do not prosecute such offenses, 
     serious crimes often go unpunished and,to address this 
     jurisdictional gap, Federal law should be amended to punish 
     serious offenses committed by such civilians outside the 
     United States, to the same extent as if those offenses were 
     committed within the special maritime and territorial 
     jurisdiction of the United States.
       (10) Federal law does not apply to many crimes committed 
     outside the United States by members of the Armed Forces who 
     separate from the Armed Forces before they can be identified, 
     thus escaping court-martial jurisdiction and, to address this 
     jurisdictional

[[Page 15348]]

     gap, Federal law should be amended to punish serious offenses 
     committed by such persons outside the United States, to the 
     same extent as if those offenses were committed within the 
     special maritime and territorial jurisdiction of the United 
     States.

     SEC. 3. COURT-MARTIAL JURISDICTION.

       (a) Jurisdiction During Contingency Operations.--Section 
     802(a) of title 10, United States Code (article 2(a) of the 
     Uniform Code of Military Justice), is amended by inserting 
     after paragraph (12) the following:
       ``(13) To the extent not covered by paragraphs (10) and 
     (11), persons not members of the armed forces who, in support 
     of a contingency operation described in section 101(a)(13)(B) 
     of this title, are serving with and accompanying an armed 
     force in a place or places outside the United States 
     specified by the Secretary of Defense, as follows:
       ``(A) Employees of the Department of Defense.
       ``(B) Employees of any Department of Defense contractor who 
     are so serving in connection with the performance of a 
     Department of Defense contract.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall take effect on the date of the enactment of this Act 
     and apply with respect to acts or omissions occurring on or 
     after that date.

     SEC. 4. FEDERAL JURISDICTION.

       (a) Criminal Offenses Committed Outside the United 
     States.--Title 18, United States Code, is amended by 
     inserting after chapter 211 the following:

  ``CHAPTER 212--CRIMINAL OFFENSES COMMITTED OUTSIDE THE UNITED STATES

``Sec.
``3261. Criminal offenses committed by persons formerly serving with, 
              or presently employed by or accompanying, the Armed 
              Forces outside the United States.
``3262. Delivery to authorities of foreign countries.
``3263. Regulations.
``3264. Definitions.

     ``Sec. 3261. Criminal offenses committed by persons formerly 
       serving with, or presently employed by or accompanying, the 
       Armed Forces outside the United States

       ``(a) In General.--Whoever, while serving with, employed 
     by, or accompanying the Armed Forces outside of the United 
     States, engages in conduct 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, shall be 
     guilty of a like offense and subject to a like punishment.
       ``(b) Concurrent Jurisdiction.--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.
       ``(c) Action by Foreign Government.--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 shall not be delegated.
       ``(d) Arrests.--
       ``(1) Law enforcement personnel.--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 of the United States any person described in 
     subsection (a) if there is probable cause to believe that 
     such person engaged in conduct that constitutes a criminal 
     offense under subsection (a).
       ``(2) Release to civilian law enforcement.--A person 
     arrested under paragraph (1) shall be released 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 paragraph unless--
       ``(A) such person is delivered to authorities of a foreign 
     country under section 3262; or
       ``(B) such person has had charges brought against him or 
     her under chapter 47 of title 10 for such conduct.

     ``Sec. 3262. Delivery to authorities of foreign countries

       ``(a) In General.--Any person designated and authorized 
     under section 3261(d) 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 engaged in 
     conduct described in section 3261(a) of this section if--
       ``(1) the 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) Determination by the Secretary.--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. 3263. Regulations

       ``(a) In General.--The Secretary of Defense, after 
     consultation with the Secretary of State and the Attorney 
     General, shall issue regulations governing the apprehension, 
     detention, and removal of persons under this chapter. Such 
     regulations shall be uniform throughout the Department of 
     Defense.
       ``(b) Notice to Third Party Nationals.--
       ``(1) In general.--The Secretary of Defense, after 
     consultation with the Secretary of State, shall issue 
     regulations requiring that, to the maximum extent 
     practicable, notice shall be provided to any person serving 
     with, 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) Failure to provide notice.--The failure to provide 
     notice as prescribed in the regulations issued 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.

     ``Sec. 3264. Definitions

       ``In this chapter--
       ``(1) a person is `accompanying the Armed Forces outside of 
     the United States' if the person--
       ``(A) is a dependent of--
       ``(i) a member of the Armed Forces;
       ``(ii) a civilian employee of a military department or of 
     the Department of Defense; or
       ``(iii) a Department of Defense contractor or an employee 
     of a Department of Defense contractor;
       ``(B) is residing with such member, civilian employee, 
     contractor, or contractor employee outside the United States; 
     and
       ``(C) is not a national of or ordinarily resident in the 
     host nation;
       ``(2) the term `Armed Forces' has the same meaning as in 
     section 101(a)(4) of title 10; and
       ``(3) a person is `employed by the Armed Forces outside of 
     the United States' if the person--
       ``(A) is employed as a civilian employee of the Department 
     of Defense, as a Department of Defense contractor, or as an 
     employee of a Department of Defense contractor;
       ``(B) is present or residing outside of the United States 
     in connection with such employment; and
       ``(C) is not a national of or ordinarily resident in the 
     host nation.''.
       (b) Clerical Amendment.--The table of chapters at the 
     beginning of part II of title 18, United States Code, is 
     amended by inserting after the item relating to chapter 211 
     the following:

3621''.iminal Offenses Committed Outside the United States...........

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