[Federal Register Volume 70, Number 245 (Thursday, December 22, 2005)]
[Proposed Rules]
[Pages 75998-76010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23938]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 153

[0790-AH73]


Criminal Jurisdiction Over Civilians Employed by or Accompanying 
the Armed Forces Outside the United States, Service Members, and Former 
Service Members

AGENCY: Department of Defense.

ACTION: Proposed rule.

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SUMMARY: The Military Extraterritorial Jurisdiction Act of 2000 (MEJA) 
establishes Federal criminal jurisdiction over whoever engages in 
conduct outside the United States that would constitute an offense 
punishable by imprisonment for more than one year (i.e., a felony 
offense) while employed by or accompanying the Armed Forces outside the 
United States, certain members of the Armed Forces subject to the 
Uniform Code of Military Justice and former members of the Armed 
Forces.

DATES: Comments must be received on or before February 21, 2006.

ADDRESSES: Forward comments to the Deputy General Counsel (Personnel 
and Health Policy), 1600 Defense Pentagon, Washington, DC 20301-1600.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Reed, 703-695-1055.

SUPPLEMENTARY INFORMATION: 

Executive Order 12866, ``Regulatory Planning and Review''

    This proposed regulatory action is a significant regulatory action, 
as defined by Executive Order 12866 and has been reviewed by OMB and 
approved for publication.

Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))

    This regulatory action will not have a significant adverse impact 
on a substantial number of small entities.

Unfunded Mandates Act of 1995 (Sec. 202, Pub. L. 104-4)

    This regulatory action does not contain a Federal mandate that will 
result in the expenditure by State, local, and tribal governments, in 
aggregate, or by the private sector of $100 million or more in any 1 
year. This rule making will not significantly or uniquely affect small 
governments.

Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)

    This regulatory action will not impose any additional reporting or

[[Page 75999]]

recordkeeping requirements under the Paperwork Reduction Act.

Federalism (Executive Order 13132)

    This regulatory action does not have Federalism implications, as 
set forth in Executive Order 13132. It will not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)

    It has been certified that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. This rule establishes procedures for coordinating 
criminal jurisdiction matters between the Department of Defense, 
Justice, and State that involve crimes committed by civilians employed 
by or accompanying the Armed Forces overseas.

List of Subjects in 32 CFR Part 153

    Courts, Intergovernmental relations, Military personnel.

    Accordingly, 32 CFR part 153 is proposed to be revised to read as 
follows:

PART 153--CRIMINAL JURISDICTION OVER CIVILIANS EMPLOYED BY OR 
ACCOMPANYING THE ARMED FORCES OUTSIDE THE UNITED STATES, CERTAIN 
SERVICE MEMBERS, AND FORMER SERVICE MEMBERS

Sec.
153.1 Purpose.
153.2 Applicability and scope.
153.3 Definitions.
153.4 Responsibilities.
153.5 Procedures.
Appendix A to Part 153--Guidelines
Appendix B to Part 153--Acknowledgement of Limited Legal 
Representative (Sample)

    Authority: 18 U.S.C. Chapter 212.


Sec.  153.1  Purpose.

    This part:
    (a) Implements policies and procedures, and assigns 
responsibilities under the Military Extraterritorial Jurisdiction Act 
of 2000, as amended by section 1088 of the ``Ronald W. Reagan National 
Defense Authorization Act for Fiscal Year 2005,'' (hereinafter the Act) 
for exercising extraterritorial criminal jurisdiction over certain 
military personnel, former service members of the United States Armed 
Forces, and over civilians employed by or accompanying the Armed Forces 
outside the United States (U.S.).
    (b) Implements section 3266 of the Act.


Sec.  153.2  Applicability and scope.

    (a) This part applies to the Office of the Secretary of Defense, 
the Military Departments (including the Coast Guard by agreement with 
the Department of Homeland Security when it is not operating as a 
Service of the Department of the Navy), the Chairman of the Joint 
Chiefs of Staff, the Combatant Commands, the Inspector General of the 
Department of Defense, the Defense Agencies, the DoD Field Activities, 
and all other organizational entities within the Department of Defense 
(hereafter referred to collectively as ``the DoD Components''). The 
term ``Military Services,'' as used herein, refers to the Army, the 
Navy, the Air Force, and the Marine Corps.
    (b) Coast Guard. The Coast Guard ordinarily operates as a separate 
branch of the Armed Forces in the Department of Homeland Security 
(DHS). However, upon Presidential Directive, the Coast Guard operates 
as a Service within the Department of the Navy and becomes part of the 
Department of Defense. By agreement with the Secretary of the 
Department of Homeland Security, when the Coast Guard is operating as a 
separate Service within the DHS, this part shall apply to the Coast 
Guard to the extent permitted by the Act. Whether a provision of this 
Instruction applies to a Coast Guard case is determined by whether the 
Coast Guard is operating as a Service in the DHS or as a Service within 
the Department of the Navy.
    (c) While some Federal criminal statutes are expressly or 
implicitly extraterritorial, many acts described therein are criminal 
only if they are committed within ``the special maritime and 
territorial jurisdiction of the United States'' or if they affect 
interstate or foreign commerce. Therefore, in most instances, Federal 
criminal jurisdiction ends at the nation's borders. State criminal 
jurisdiction, likewise, normally ends at the boundaries of each State. 
Because of these limitations, acts committed by military personnel, 
former service members, and civilians employed by or accompanying the 
Armed Forces in foreign countries, which would be crimes if committed 
in the U.S., often do not violate either Federal or State criminal law. 
Similarly, civilians are generally not subject to prosecution under the 
Uniform Code of Military Justice (UCMJ), unless Congress had declared a 
``time of war'' when the acts were committed. As a result, these acts 
are crimes, and therefore criminally punishable, only under the law of 
the foreign country in which they occurred. See section 2 of Report 
Accompanying the Act. While the U.S. could impose administrative 
discipline for such actions, the Act and this Part are intended to 
address the jurisdictional gap with respect to criminal sanctions.
    (d) Nothing in this part 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 the law of war may be tried by court-martial, military 
commission, provost court, or other military tribunal (18 U.S.C. 
3261(c)). In some cases, conduct that violates section 3261(a) of the 
Act may also violate the UCMJ, or the law of war generally. Therefore, 
for military personnel, military authorities would have concurrent 
jurisdiction with a U.S. District Court to try the offense. The Act was 
not intended to divest the military of jurisdiction and recognizes the 
predominant interest of the military in disciplining its service 
members, while still allowing for the prosecution of members of the 
Armed Forces with non-military co-defendants in a U.S. District Court 
under section 3261(d) of the Act.
    (e) This part, including its enclosures, is intended exclusively 
for the guidance of military personnel and civilian employees of the 
Department of Defense, and of the United States Coast Guard by 
agreement with the Department of Homeland Security. Nothing contained 
herein creates or extends any right, privilege, or benefit to any 
person or entity. See United States v. Caceres, 440 U.S. 741 (1979).


Sec.  153.3  Definitions.

    (a) Accompanying the Armed Forces Outside the United States. As 
defined in section 3267 of the Act, the dependent of:
    (1) A member of the Armed Forces; or
    (2) A civilian employee of the Department of Defense (including a 
non-appropriated fund instrumentality of the Department); or
    (3) A DoD contractor (including a subcontractor at any tier); or
    (4) An employee of a DoD contractor (including a subcontractor at 
any tier); and
    (5) Residing with such member, civilian employee, contractor, or 
contractor employee outside the United States; and
    (6) Not a national of or ordinarily resident in the host nation.
    (b) Active Duty. Full-time duty in the active military service of 
the United States. It includes full-time training

[[Page 76000]]

duty, annual training duty, and attendance, while in the active 
military service, at a school designated as a service school by law or 
by the Secretary of the Military Department concerned. See 10 U.S.C. 
101(d)(1).
    (c) Armed Forces. The Army, the Navy, the Air Force, the Marine 
Corps, and the Coast Guard. See 10 U.S.C. 101(a)(4).
    (d) Arrest. To be taken into physical custody by law enforcement 
officials.
    (e) Charged. As used in the Act and this part, this term is defined 
as an indictment or the filing of information against a person under 
the Federal Rules of Criminal Procedure. See the analysis to Section 
3264 of the Report Accompanying the Act.
    (f) Civilian Component. A person or persons employed by the Armed 
Forces outside the United States, as defined in this section and 
section 3267(a)(1), as amended, of the Act. A term used in Status of 
Forces Agreements.
    (g) Dependent. A person for whom a member of the Armed Forces, 
civilian employee, contractor (or subcontractor at any tier) has legal 
responsibility while that person is residing outside the United States 
with or accompanying that member of the Armed Forces, civilian 
employee, contractor (or subcontractor at any tier), and while that 
responsible person is so assigned, employed or obligated to perform a 
contractual obligation to the Department of Defense. For purposes of 
this part, a person's ``command sponsorship'' status while outside the 
United States is not to be considered in determining whether the person 
is a dependent within the meaning of this part, except that there shall 
be a rebuttable presumption that a command-sponsored individual is a 
dependent.
    (h) Designated Commanding Officer (DCO). A single military 
commander in each foreign country where U.S. Forces are stationed and 
as contemplated by DoD Directive 5525.1,\1\ Status of Forces Policy and 
Information.
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    \1\ Copies may be obtained at http://www.dtic.mil/whs/directives/.
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    (i) Detention. To be taken into custody by law enforcement 
officials and placed under physical restraint.
    (j) District. A District Court of the United States.
    (k) Employed by the Armed Forces Outside the United States. Any 
person employed as:
    (1) A civilian employee of the Department of Defense (including a 
non-appropriated fund instrumentality of the Department); or
    (2) A civilian employee of any other Federal agency, or any 
provisional authority, to the extent such employment relates to 
supporting the mission of the Department of Defense overseas; or
    (3) A contractor (including a subcontractor at any tier) of the 
Department of Defense (including a non-appropriated fund 
instrumentality of the Department of Defense); or
    (4) A contractor (including a subcontractor at any tier) of any 
other Federal agency, or any provisional authority, to the extent such 
employment relates to supporting the mission of the Department of 
Defense overseas; or
    (5) An employee of a contractor (including a subcontractor at any 
tier) of the Department of Defense (including a non-appropriated fund 
instrumentality of the Department of Defense); or
    (6) An employee of a contractor (including a subcontractor at any 
tier) of any other Federal agency, or any provisional authority, to the 
extent such employment relates to supporting the mission of the 
Department of Defense overseas; and, when the person:
    (i) Is present or resides outside the United States in connection 
with such employment; and
    (ii) Is not a national of or ordinarily resident in the host 
nation.
    (l) Federal Magistrate Judge. As used in the Act and this part, 
this term includes both Judges of the United States and U.S. Magistrate 
Judges, titles that, in general, should be given their respective 
meanings found in the Federal Rules of Criminal Procedure. (See 
footnote 32 of the Report to Accompany H. R. 3380, House of 
Representatives Report 106-778, July 20, 2000.) The term does not 
include Military Magistrates or Military Judges, as prescribed by the 
UCMJ, or regulations of the Military Departments or the Department of 
Defense.
    (m) Felony Offense. Conduct that is an offense punishable by 
imprisonment for more than one year if the conduct had been engaged in 
the special maritime and territorial jurisdiction of the United States. 
See sections 3261 of the Act and 18 U.S.C. 7. Although the Act, uses 
the conditional phrase ``if committed within the special maritime and 
territorial jurisdiction of the United States,'' acts that would be a 
Federal crime regardless of where they are committed in the U.S., such 
as drug crimes contained in 21 U.S.C. chapter 13, also fall within the 
scope of section 3261(a) of the Act. See the analysis to section 3261 
of the Report Accompanying the Act.
    (n) Host Country National. A person who is not a citizen of the 
United States, but who is a citizen of the foreign country in which 
that person is located.
    (o) Inactive Duty Training. Duty prescribed for Reservists by the 
Secretary of the Military Department concerned under 37 U.S.C. 206, or 
any other provision of law; and special additional duties authorized 
for Reservists by an authority designated by the Secretary of the 
Military Department concerned and performed by them on a voluntary 
basis in connection with the prescribed training or maintenance 
activities of the units to which they are assigned. Inactive Duty 
Training includes those duties performed by Reservists in their status 
as members of the National Guard while in Federal service. See 10 
U.S.C. 101(d)(7).
    (p) Juvenile. A person who has not attained his or her eighteenth 
birthday, as defined in 18 U.S.C. 5031.
    (q) Military Department. The Department of the Army, the Department 
of the Navy, and the Department of the Air Force. See 10 U.S.C. 
101(a)(8).
    (r) National of the United States. As defined in 8 U.S.C. 
1101(a)(22).
    (s) Outside the United States. Those places that are not within the 
definition of ``United States'' below and, with the exception of 
subparagraph 7(9), those geographical areas and locations that are not 
within the special maritime and territorial jurisdiction of the United 
States, as defined in 18 U.S.C. 7. The locations defined in 18 U.S.C. 
7(9) are to be considered ``Outside the United States'' for the 
purposes of this Part. See 18 U.S.C. 3261-3267.
    (t) Qualified Military Counsel. Judge advocates assigned to or 
employed by the Military Services and designated by the respective 
Judge Advocate General, or a designee, to be professionally qualified 
and trained to perform defense counsel responsibilities under the Act.
    (u) Staff Judge Advocate. A judge advocate so designated in the 
Army, the Air Force, the Marine Corps, or the Coast Guard; the 
principal legal advisor of a command in the Navy who is a judge 
advocate, regardless of job title. See Rule for Courts-Martial 103(17), 
Manual for Courts-Martial, United States (2002 Edition).
    (v) Third Country National. A person whose citizenship is that of a 
country other than the U.S. and the foreign country in which the person 
is located.
    (w) United States. As defined in 18 U.S.C. 5, this term, as used in 
a territorial sense, includes all places and waters, continental or 
insular, subject to the jurisdiction of the United States, except for 
the Panama Canal Zone.


Sec.  153.4  Responsibilities.

    (a) The General Counsel of the Department of Defense shall provide

[[Page 76001]]

initial coordination and liaison with the Departments of Justice and 
State, on behalf of the Military Departments, regarding a case for 
which investigation and/or Federal criminal prosecution under the Act 
is contemplated. This responsibility may be delegated entirely, or 
delegated for categories of cases, or delegated for individual cases. 
The General Counsel, or designee, shall advise the Domestic Security 
Section of the Criminal Division, Department of Justice (DSS/DOJ), as 
soon as practicable, when DoD officials intend to recommend that the 
DOJ consider the prosecution of a person subject to the Act for 
offenses committed outside the United States. The Assistant Attorney 
General, Criminal Division, Department of Justice, has designated the 
Domestic Security Section (DSS/DOJ) as the Section responsible for the 
Act.
    (b) The Inspector General of the Department of Defense shall:
    (1) Pursuant to section 4(d) of the Inspector General Act of 1978, 
as amended (5 U.S.C. App. 3), ``report expeditiously to the Attorney 
General whenever the Inspector General has reasonable grounds to 
believe there has been a violation of Federal criminal law.'' This 
statutory responsibility is generally satisfied once an official/
special agent of the Office of the Inspector General of the Department 
of Defense notifies either the cognizant Department of Justice 
representative or the Assistant Attorney General (Criminal Division) of 
the ``reasonable grounds.''
    (2) Pursuant to section 8(c)(5) of the Inspector General Act of 
1978, as amended 5 U.S.C. App. 3), and 10 U.S.C. 141(b), ensure the 
responsibilities described in DoD Directive 5525.7,\2\ ``Implementation 
of the Memorandum of Understanding Between the Department of Justice 
and the Department of Defense Relating to the Investigation and 
Prosecution of Certain Crimes,'' January 22, 1985,\3\ to implement the 
investigative policies, monitor compliance by DoD criminal 
investigative organizations, and provide specific guidance regarding 
investigative matters, as appropriate are satisfied relative to 
violations of the Military Extraterritorial Jurisdiction Act of 2000.
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    \2\ See footnote 1 to Sec.  153.3(h).
    \3\ See footnote 1 to Sec.  153.3(h).
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    (c) The Heads of Military Law Enforcement Organizations and 
Military Criminal Investigative Organizations, or Their Designees 
shall:
    (1) Advise the Commander and Staff Judge Advocate (or Legal 
Advisor) of the Combatant Command concerned, or designees, of an 
investigation of an alleged violation of the Act. Such notice shall be 
provided as soon as practicable. In turn, the General Counsel of the 
Department of Defense, or designee, shall be advised so as to ensure 
notification of and consultation with the Departments of Justice and 
State regarding information about the potential case, including the 
host nation's position regarding the case. At the discretion of the 
General Counsel of the Department of Defense, other agencies and 
organizations (such as the Legal Counsel to the Chairman of the Joint 
Chiefs of Staff and Secretary of the Military Department that sponsored 
the person into the foreign country) shall be informed, as appropriate. 
Effective investigations lead to successful prosecutions and, 
therefore, these cases warrant close coordination and cooperation 
between the Departments of Defense, Justice, and State.
    (2) Provide briefings to, and coordinate with, appropriate local 
law enforcement authorities in advance or, if not possible, as soon 
thereafter as is practicable, of investigations or arrests in specific 
cases brought under the Act. If not previously provided to local law 
enforcement authorities, such briefings about the case shall, at a 
minimum, describe the Host Nation's position regarding the exercise of 
jurisdiction under the Act that followed from any briefings conducted 
pursuant to appendix A of this part.
    (d) The Domestic Security Section, Criminal Division, Department of 
Justice (DSS/DOJ) has agreed to:
    (1) Provide preliminary liaison with the Department of Defense, 
coordinate initial notifications with other entities of the Department 
of Justice and Federal law enforcement organizations; make preliminary 
decisions regarding proper venue; designate the appropriate U.S. 
Attorney's Office; and coordinate the further assignment of DOJ 
responsibilities.
    (2) Coordinate with the designated U.S. Attorney's office 
arrangements for a Federal Magistrate Judge to preside over the initial 
proceedings required by the Act. Although the assignment of a 
particular Federal Magistrate Judge shall ordinarily be governed by the 
jurisdiction where a prosecution is likely to occur, such an assignment 
does not determine the ultimate venue of any prosecution that may be 
undertaken. Appropriate venue is determined in accordance with the 
requirements of 18 U.S.C. 3238.
    (3) Coordinate the assistance to be provided the Department of 
Defense with the U.S. Attorney's office in the district where venue for 
the case shall presumptively lie.
    (4) Continue to serve as the primary point of contact for DoD 
personnel regarding all investigations that may lead to criminal 
prosecutions and all associated pretrial matters, until such time as 
DSS/DOJ advises that the case has become the responsibility of a 
specific U.S. Attorney's Office.
    (e) The Commanders of the Combatant Commands shall:
    (1) Assist the DSS/DOJ on specific cases occurring within the 
Commander's area of responsibility. These responsibilities include 
providing available information and other support essential to an 
appropriate and successful prosecution under the Act with the 
assistance of the Commanders' respective Staff Judge Advocates (or 
Legal Advisors), or their designees, to the maximum extent allowed and 
practicable.
    (2) Ensure command representatives are made available, as 
necessary, to participate in briefings of appropriate host nation 
authorities concerning the operation of this Act and the implementing 
provisions of this part.
    (3) Determine when military necessity in the overseas theater 
requires a waiver of the limitations on removal in section 3264(a) of 
the Act and when the person arrested or charged with a violation of the 
Act shall be moved to the nearest U.S. military installation outside 
the United States that is adequate to detain the person and facilitate 
the initial proceedings prescribed in section 3265(a) of the Act and 
this part. Among the factors to be considered are the nature and scope 
of military operations in the area, the nature of any hostilities or 
presence of hostile forces, and the limitations of logistical support, 
available resources, appropriate personnel, or the communications 
infrastructure necessary to comply with the requirements of section 
3265 of the Act governing initial proceedings.
    (4) Annually report to the General Counsel of the Department of 
Defense, by the last day of February for the immediately preceding 
calendar year, all cases involving the arrest of persons for violations 
of the Act; persons placed in temporary detention for violations of the 
Act; the number of requests for Federal prosecution under the Act, and 
the decisions made regarding such requests.
    (5) Determine the suitability of the locations and conditions for 
the temporary detention of juveniles who commit violations of the Act 
within the Commander's area of responsibility. The conditions of such 
detention must, at a minimum, meet the following

[[Page 76002]]

requirements: Juveniles alleged to be delinquent shall not be detained 
or confined in any institution or facility in which the juvenile has 
regular contact with adult persons convicted of a crime or awaiting 
trial on criminal charges; insofar as possible, alleged juvenile 
delinquents shall be kept separate from adjudicated delinquents; and 
every juvenile in custody shall be provided adequate food, heat, light, 
sanitary facilities, bedding, clothing, recreation, and medical care, 
including necessary psychiatric, psychological, or other care and 
treatment.
    (6) As appropriate, promulgate regulations consistent with and 
implementing this part. The Combatant Commander's duties and 
responsibilities pursuant to this part may be delegated.
    (f) The Secretaries of the Military Departments shall: (1) 
Consistent with the provisions of paragraph (c) of this section, make 
provision for defense counsel representation at initial proceedings 
conducted outside the United States pursuant to the Act for those 
persons arrested or charged with violations of section 3261(a) of the 
Act.
    (2) Issue regulations establishing procedures that, to the maximum 
extent practicable, provide notice to all persons covered by the Act 
who are not nationals of the United States but who are employed by or 
accompanying the Armed Forces outside the United States, with the 
exception of individuals who are nationals of or ordinarily resident in 
the host nation, that they are potentially subject to the criminal 
jurisdiction of the United States under the Act. At a minimum, such 
regulations shall require that employees and persons accompanying the 
Armed Forces outside the United States, who are not nationals of the 
United States, be informed of the jurisdiction of the Act at the time 
that they are hired for overseas employment, or upon sponsorship into 
the overseas command, whichever event is earlier applicable. Such 
notice shall also be provided during employee training and any initial 
briefings required for these persons when they first arrive in the 
foreign country. For employees and persons accompanying the Armed 
Forces outside the United States who are not nationals of the United 
States, but who have already been hired or are present in the overseas 
command at the time this part becomes effective, such notice shall be 
provided within 60 days of the effective date of this part.
    (3) Ensure that orientation training, as described in paragraph 
(f)(2) of this section, is also provided for all U.S. nationals who 
are, or who are scheduled to be, employed by or accompanying the Armed 
Forces outside the United States, including their dependents, and 
include information that such persons are potentially subject to the 
criminal jurisdiction of the United States under the Act.
    (i) For members of the Armed Forces, civilian employees of the 
Department of Defense and civilians accompanying the Armed Forces 
overseas, notice and briefings on the applicability of the Act shall, 
at a minimum, be provided to them and their dependents when travel 
orders are issued and, again, upon their arrival at command military 
installations or place of duty outside the United States.
    (ii) For civilian employees, contractors (including subcontractors 
at any tier), and employees of contractors (including subcontractors at 
any tier) of any other Federal agency, or any provisional authority, 
permit such persons to attend the above-referenced briefings on a 
voluntary basis. In addition, to the maximum extent practicable, make 
available to representatives of such other Federal agencies or 
provisional authorities such notice and briefing materials as is 
provided to civilian employees, contractors, and contractor employees 
of the Department of Defense overseas.
    (4) Failure to provide notice or orientation training pursuant to 
paragraphs (f)(2) and (f)(3) of this section shall not create any 
rights or privileges in the persons referenced and shall not operate to 
defeat the jurisdiction of a court of the United States or provide a 
defense or other remedy in any proceeding arising under the Act or this 
part.
    (5) Provide training to personnel who are authorized under the Act 
and designated pursuant to this part to make arrests outside the United 
States of persons who allegedly committed a violation of section 
3261(a) of the Act. The training, at a minimum, shall include the 
rights of individuals subject to arrest.


Sec.  153.5  Procedures.

    (a) Applicability. (1) Offenses and Punishments. Section 3261(a) of 
the Act establishes a separate Federal offense under 18 U.S.C. for an 
act committed outside the United States that would be a felony crime as 
if such act had been committed within the special maritime and 
territorial jurisdiction of the United States, as defined in 18 U.S.C. 
7. Charged as a violation of section 3261(a) of the Act, the elements 
of the offense and maximum punishment are the same as the crime 
committed within the geographical limits of 18 U.S.C. 7, but without 
the requirement that the conduct be committed within such geographical 
limits. See section 1 of the Section-By-Section Analysis and Discussion 
to section 3261 in the ``Report Accompanying the Act.''
    (2) Persons Subject to This Part. This part applies to certain 
military personnel, former military service members, and persons 
employed by or accompanying the Armed Forces outside the United States, 
and their dependents, as those terms are defined in Sec.  153.3 of this 
part, alleged to have committed an offense under the Act while outside 
the United States. For purposes of the Act and this part, persons 
employed by or accompanying the Armed Forces outside the U.S. are 
subject to the ``military law'' of the U.S., but only to the extent to 
which this term has been used and its meaning and scope have been 
understood within the context of a SOFA or any other similar form of 
international agreement.
    (3) Military Service Members. Military service members subject to 
the Act's jurisdiction are:
    (i) Only those active duty service members who, by Federal 
indictment or information, are charged with committing an offense with 
one or more defendants, at least one of whom is not subject to the 
UCMJ. See section 3261(d)(2) of the Act.
    (ii) Members of a Reserve component with respect to an offense 
committed while the member was not on active duty or inactive duty for 
training (in the case of members of the Army National Guard of the 
United States or the Air National Guard of the United States, only when 
in Federal service), are not subject to UCMJ jurisdiction for that 
offense and, as such, are amenable to the Act's jurisdiction without 
regard to the limitation of section 3261(d)(2) of the Act.
    (4) Former Military Service Members. Former military service 
members subject to the Act's jurisdiction are:
    (i) Former service members who were subject to the UCMJ at the time 
the alleged offenses were committed, but are no longer subject to the 
UCMJ with respect to the offense due to their release or separation 
from active duty.
    (ii) Former service members, having been released or separated from 
active duty, who thereafter allegedly commit an offense while in 
another qualifying status, such as while a civilian employed by or 
accompanying the Armed Forces outside the United States, or while the 
dependent of either or of a person subject to the UCMJ.
    (5) Civilians Employed by the Armed Forces. Civilian employees 
employed by the U.S. Armed Forces outside the

[[Page 76003]]

United States (as defined in Sec.  153.3), who commit an offense under 
the Act while present or residing outside the U.S. in connection with 
such employment, are subject to the Act and the provisions of this 
part. Such civilian employees include:
    (i) Persons employed by the Department of Defense (including a non-
appropriated fund instrumentality of the Department of Defense).
    (ii) Persons employed as a DoD contractor (including a 
subcontractor at any tier).
    (iii) Employees of a DoD contractor (including a subcontractor at 
any tier).
    (iv) Civilian employees, contractors (including subcontractors at 
any tier), and civilian employees of a contractor (or subcontractor at 
any tier) of any other Federal agency, or any provisional authority, to 
the extent such employment relates to supporting the mission of the 
Department of Defense overseas.
    (6) Civilians Accompanying the Armed Forces. Subject to the 
requirements of paragraph (a)(6)(ii) of this section, the following 
persons are civilians accompanying the Armed Forces outside the United 
States who are covered by the Act and the provisions of this part:
    (i) Dependents of:
    (A) An active duty service member.
    (B) A member of the reserve component while the member was on 
active duty or inactive duty for training, but in the case of members 
of the Army National Guard of the United States or the Air National 
Guard of the United States, only when in Federal service.
    (C) A former service member who is employed by or is accompanying 
the Armed Forces outside the United States.
    (D) A civilian employee of the Department of Defense (including 
non-appropriated fund instrumentalities of the Department of Defense).
    (E) A contractor (including a subcontractor at any tier) of the 
Department of Defense.
    (F) An employee of a contractor (including a subcontractor at any 
tier) of the Department of Defense.
    (ii) In addition to the person being the dependent of a person who 
is listed in paragraph (a)(6)(i) of this section, jurisdiction under 
the Act requires that the dependent also:
    (A) Reside with one of the persons listed in paragraph (a)(6)(i).
    (B) Allegedly commit the offense while outside the United States; 
and
    (C) Not be a national of, or ordinarily resident in, the host 
nation where the offense is committed.
    (iii) Command sponsorship of the dependent is not required for the 
Act and this part to apply.
    (iv) If the dependent is a juvenile, as defined in Sec.  153.3, who 
engaged in conduct that is subject to prosecution under section 3261(a) 
of the Act, then the provisions of 18 U.S.C. chapter 403 would apply to 
U.S. District Court prosecutions.
    (7) Persons Not Subject to the Act or the Procedures of This Part. 
(i) Persons who are the nationals of, or ordinarily resident in, the 
host nation where the offense is committed, regardless of their 
employment or dependent status.
    (ii) Persons, including citizens of the United States, whose 
presence outside the United States at the time the offense is 
committed, is not then as a member of the Armed Forces, a civilian 
employed by the Armed Forces outside the United States, or accompanying 
the Armed Forces outside the United States.
    (A) Persons (including members of a Reserve component) whose 
presence outside the United States at the time the offense is 
committed, is solely that of a tourist, a student, or a civilian 
employee or civilian accompanying any other non-federal agency, 
organization, business, or entity (and thereby can not be said to be 
employed by or accompanying the Armed Forces within the definitions of 
those terms as established by the Act, as modified) are not subject to 
the Act. Civilian employees of an agency, organization, business, or 
entity accompanying the Armed Forces outside the U.S. may, by virtue of 
the agency, organization, business, or entity relationship with the 
Armed Forces, be subject to the Act and this part.
    (B) Persons who are subject to the Act and this part remain so 
while present, on official business or otherwise (e.g., performing 
temporary duty or while in leave status), in a foreign country other 
than the foreign country to which the person is regularly assigned, 
employed, or accompanying the Armed Forces outside the United States.
    (iii) Persons who have recognized dual citizenship with the United 
States and who are the nationals of, or ordinarily resident in, the 
host nation where the alleged conduct took place are not persons 
``accompanying the Armed Forces outside the United States'' within the 
meaning of the Act and this part.
    (iv) Juveniles whose ages are below the minimum ages authorized for 
the prosecution of juveniles in U.S. District Court under the 
provisions of 18 U.S.C. chapter 403.
    (v) Persons subject to the UCMJ (See 10 U.S.C. 802 and 803) are not 
subject to prosecution under the Act unless, pursuant to section 
3261(d) of the Act, the member ceases to be subject to the UCMJ or 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 the UCMJ. A member of a Reserve component who is subject to the UCMJ 
at the time the UCMJ offense was committed is not relieved from 
amenability to UCMJ jurisdiction for that offense. Such reserve 
component members are not subject to the Act unless section 3261(d)(2) 
of the Act applies. Retired members of a regular component who are 
entitled to pay remain subject to the UCMJ after retiring from active 
duty. Such retired members are not subject to prosecution under the Act 
unless section 3261(d)(2) of the Act applies.
    (vi) Whether Coast Guard members and civilians employed by or 
accompanying the Coast Guard outside the United States, and their 
dependents, are subject to the Act and this part depends on whether at 
the time of the offense the Coast Guard was operating as a separate 
Service in the Department of Homeland Security or as a Service in the 
Department of the Navy.
    (8) Persons Having a Tenuous Nexus to the United States. Third 
Country Nationals who are not ordinarily resident in the host nation, 
and who meet the definition of ``a person accompanying the Armed Forces 
outside the United States,'' may have a nexus to the United States that 
is so tenuous that it places into question whether the Act's 
jurisdiction should be applied and whether such persons should be 
subject to arrest, detention, and prosecution by U.S. authorities. 
Depending on the facts and circumstances involved, and the relationship 
or connection of the foreign national with the U.S. Armed Forces, it 
may be advisable to consult first with the DSS/DOJ before taking action 
with a view toward prosecution. In addition, to facilitate consultation 
with the government of the nation of which the Third Country National 
is a citizen, the State Department should be notified of any potential 
investigation or arrest of a Third Country National.
    (b) Investigation, Arrest, Detention, and Delivery of Persons to 
Host Nation Authorities. (1) Investigation. (i) Investigations of 
conduct reasonably believed to constitute a violation of the Act 
committed outside the United States must respect the sovereignty of the 
foreign nation in which the investigation is conducted. Such 
investigations shall be conducted in accordance with recognized 
practices with host nation authorities and applicable international 
law, SOFA and other international agreements. After general 
coordination with appropriate

[[Page 76004]]

host nation authorities, as referenced in Appendix A of this part, 
specific investigations shall, to the extent practicable, be 
coordinated with appropriate local law enforcement authorities, unless 
not required by agreement with host nation authorities.
    (ii) When a Military Criminal Investigative Organization is the 
lead investigative organization, the criminal investigator, in order to 
assist DSS/DOJ and the designated U.S. Attorney representative in 
making a preliminary determination of whether the case warrants 
prosecution under the Act, shall provide a copy of the Investigative 
Report, or a summary thereof, to the Office of the Staff Judge Advocate 
of the Designated Commanding Officer (DCO) at the location where the 
offense was committed for review and transmittal, through the Combatant 
Commander, to the DSS/DOJ and the designated U.S. Attorney 
representative. The Office of the Staff Judge Advocate shall also 
furnish the DSS/DOJ and the designated U.S. Attorney representative an 
affidavit or declaration from the criminal investigator or other 
appropriate law enforcement official that sets forth the probable cause 
basis for believing that a violation of the Act has occurred and that 
the person identified in the affidavit or declaration has committed the 
violation.
    (iii) When the Defense Criminal Investigative Service (DCIS) is the 
lead investigative organization, the criminal investigator, in order to 
assist the DSS/DOJ and the designated U.S. Attorney representative in 
making a preliminary determination of whether the case warrants 
prosecution under the Act, shall provide a copy of the Investigative 
Report, or a summary thereof, to the DSS/DOJ and the designated U.S. 
Attorney representative. The criminal investigator shall also furnish 
the DSS/DOJ and the designated U.S. Attorney representative, an 
affidavit or declaration that sets forth the probable cause basis for 
believing that a violation of the Act has occurred and that the person 
identified in the affidavit or declaration has committed the violation. 
Within the parameters of 5 U.S.C. App 3, the Inspector General may also 
notify the General Counsel of the Department of Defense and the DCO's 
Office of the Staff Judge Advocate at the location where the offense 
was committed, as appropriate.
    (2) Residence Information. To the extent that it can be determined 
from an individual's personnel records, travel orders into the overseas 
theater, passport, or other records, or by questioning upon arrest or 
detention, as part of the routine ``booking'' information obtained, an 
individual's last known residence in the United States shall be 
determined and forwarded promptly to the DSS/DOJ and the designated 
U.S. Attorney representative. See Pennsylvania v. Muniz, 496 U.S. 582, 
at 601 (1990) and United States v. D'Anjou, 16 F.3d 604 (4th Cir. 
1993). The information is necessary to assist in determining what law 
enforcement authorities and providers of pretrial services, including 
those who issue probation reports, shall ultimately have responsibility 
for any case that may develop. Determination of the individual's ``last 
known address'' in the United States is also important in determining 
what Federal district would be responsible for any possible future 
criminal proceedings.
    (i) Due to the venue provisions of 10 U.S.C. 3238, the DSS/DOJ and 
the designated U.S. Attorney representative shall be consulted prior to 
removal of persons arrested or charged with a violation of the Act by 
U.S. law enforcement officials. The venue for Federal criminal 
jurisdiction over offenses committed on the high seas or elsewhere 
beyond the jurisdiction of a particular State or District (as would be 
required under the Act), is in the Federal district in which the 
offender is arrested or first brought. However, if the individual is 
not so arrested in or brought into any Federal district in the United 
States (i.e., is to be indicted, or an information obtained, prior to 
the individual's return to the United States), then an indictment or 
information may be sought in the district of the person's last known 
residence. If no such residence is known, the indictment or information 
may be filed in the District of Columbia.
    (ii) ``First brought'' connotes the location within the U.S. to 
which the person is returned in a custodial status.
    (iii) ``Last known residence'' refers to that U.S. location where 
the person lived or resided. It is not necessarily the same as the 
person's legal domicile or home of record.
    (iv) Prompt transmittal of venue information to the DSS/DOJ and the 
designated U.S. Attorney representative in the United States may prove 
helpful in determining whether a particular case may be prosecuted, and 
may ultimately be a pivotal factor in determining whether the host 
nation or the U.S. shall exercise its jurisdiction over the matter.
    (v) The Investigative Report, and any affidavit or declaration, as 
well as all other documents associated with a case shall be transmitted 
promptly by the command Staff Judge Advocate to the DSS/DOJ and the 
designated U.S. Attorney representative. This may be accomplished 
through the use of facsimile or other means of electronic 
communication.
    (3) Notice of Complaint or Indictment. Upon receipt of information 
from command authorities or Defense Criminal Investigation 
Organizations (the Defense Criminal Investigation Service, the Army's 
Criminal Investigation Command, the Naval Criminal Investigative 
Service, and the Air Force Office of Special Investigations) that a 
person subject to jurisdiction under this Act has violated section 
3261(a), the U.S. Attorney for the District in which there would be 
venue for a prosecution may, if satisfied that probable cause exists to 
believe that a crime has been committed and that the person identified 
has committed this crime, file a complaint under Federal Rule of 
Criminal Procedure 3. As an alternative, the U.S. Attorney may seek the 
indictment of the person identified. In either case, a copy of the 
complaint or indictment shall be provided to the Office of the Staff 
Judge Advocate of the overseas command that reported the offense. The 
DSS/DOJ and the designated U.S. Attorney representative will ordinarily 
be the source from which the command's Staff Judge Advocate is able to 
obtain a copy of any complaint or indictment against a person outside 
the United States who is subject to the jurisdiction under the Act. 
This may be accomplished through the use of facsimile or other means of 
electronic communication.
    (4) Arrest. (i) Federal Rule of Criminal Procedure 4 takes the 
jurisdiction of the Act into consideration in stating where arrest 
warrants may be executed: ``Location. A warrant may be executed, or a 
summons served, within the jurisdiction of the United States or 
anywhere else a federal statute authorizes an arrest.'' The Advisory 
Committee Note explains that the new language reflects the enactment of 
the Military Extraterritorial Jurisdiction Act permitting arrests of 
certain military and Department of Defense personnel overseas.
    (ii) The Act specifically authorizes persons in DoD law enforcement 
positions, as designated by the Secretary of Defense, to make arrests 
outside the United States, upon probable cause and in accordance with 
recognized practices with host nation authorities and applicable 
international agreements, those persons subject to the Act who violate 
section 3261(a) of the Act. Section 3262(a) of the Act constitutes 
authorization by law to conduct such functions pursuant to 10 U.S.C. 
801-946 and therefore avoids possible restrictions of the Posse 
Comitatus Act

[[Page 76005]]

regarding military personnel supporting civilian law enforcement 
agencies.
    (iii) When the host nation has interposed no objections after 
becoming aware of the Act, arrests in specific cases shall, to the 
extent practicable, be first coordinated with appropriate local law 
enforcement authorities, unless not required by agreement with host 
nation authorities.
    (iv) Military and civilian special agents assigned to the Defense 
Criminal Investigative Organizations are hereby authorized by the 
Secretary of Defense to make an arrest, outside the United States, of a 
person who has committed an offense under section 3261(a) of the Act. 
Civilian special agents assigned to Defense Criminal Investigative 
Organizations while performing duties outside the U.S. shall make 
arrests consistent with the standardized guidelines established for 
such agents, as approved in accordance with 10 U.S.C. 1585a, 4027, 
7480, and 9027.
    (v) Military personnel and DoD civilian employees (including local 
nationals, either direct hire or indirect hire) assigned to security 
forces, military police, shore patrol, or provost offices at military 
installations and other facilities located outside the United States 
are also authorized to make an arrest, outside the United States, of a 
person who has committed an offense under section 3261(a) of the Act. 
This authority includes similarly-assigned members of the Coast Guard 
law enforcement community, but only when the Coast Guard is operating 
at such locations as a Service of the Department of the Navy.
    (vi) Law enforcement personnel thus designated and authorized by 
the Secretary of Defense in this part may arrest a person, outside the 
United States, who is suspected of committing a felony offense in 
violation of section 3261(a) of the Act, when the arrest is based on 
probable cause to believe that such person violated section 3261(a) of 
the Act, and when made in accordance with applicable international 
agreements. Because the location of the offense and offender is outside 
the United States, it is not normally expected that the arrest would be 
based on a previously-issued Federal arrest warrant. Law enforcement 
personnel authorized to make arrests shall follow the Secretaries of 
the Military Departments' guidelines for making arrests without a 
warrant, as prescribed by 10 U.S.C. 1585a, 4027, 7480, and 9027. 
Authorizations issued by military magistrates under the UCMJ may not be 
used as a substitute for Federal arrest warrant requirements.
    (vii) The foregoing authorization to DoD law enforcement personnel 
to arrest persons subject to 18 U.S.C. chapter 212, for violations of 
the Act is not intended as a limitation upon the authority of other 
Federal law enforcement officers to effect arrests when authorized to 
do so. (e.g., see 18 U.S.C. 3052 authorizing agents of the Federal 
Bureau of Investigation to make arrests ``for any felony cognizable 
under the laws of the United States, 21 U.S.C. 878(a)(3) for the same 
authority for Drug Enforcement Administration agents, and 18 U.S.C. 
3053 for the same authority for U.S. Marshals and their deputies.)
    (5) Temporary Detention. (i) The Commander of a Combatant Command, 
or designee, may order the temporary detention of a person, within the 
Commander's area of responsibility outside the United States, who is 
arrested or charged with a violation of the Act. The Commander of the 
Combatant Command, or designee, may determine that a person arrested 
need not be held in custody pending the commencement of the initial 
proceedings required by section 3265 of the Act and paragraph (d) of 
this section. The Commander of the Combatant Command may designate 
those component commanders or DCO commanders who are also authorized to 
order the temporary detention of a person, within the commanding 
officer's area of responsibility outside the United States, who is 
arrested or charged with a violation of the Act.
    (ii) A person arrested may be temporarily detained in military 
detention facilities for a reasonable period, in accordance with 
regulations of the Military Departments and subject to the following:
    (A) Temporary detention should be ordered only when a serious risk 
is believed to exist that the person shall flee and not appear, as 
required, for any pretrial investigation, pretrial hearing or trial 
proceedings, or the person may engage in serious criminal misconduct 
(e.g., the intimidation of witnesses or other obstructions of justice, 
causing injury to others, or committing other offenses that pose a 
threat to the safety of the community or to the national security of 
the United States). The decision as to whether temporary detention is 
appropriate shall be made on a case-by-case basis. 18 U.S.C. 3142 
provides additional guidance regarding conditions on release and 
factors to be considered.
    (B) A person arrested or charged with a violation of the Act who is 
to be detained temporarily shall, to the extent practicable, be 
detained in areas that separate them from sentenced military prisoners 
and members of the Armed Forces who are in pretrial confinement pending 
trial by courts-martial.
    (C) Separate temporary detention areas shall be used for male and 
female detainees.
    (D) Generally, juveniles should not be ordered into temporary 
detention. However, should circumstances warrant temporary detention, 
the conditions of such temporary detention must, at a minimum, meet the 
following requirements: Juveniles alleged to be delinquent shall not be 
detained or confined in any institution or facility in which the 
juvenile has regular contact with adult persons convicted of a crime or 
awaiting trial on criminal charges; insofar as possible, alleged 
juvenile delinquents shall be kept separate from adjudicated 
delinquents; and every juvenile in custody shall be provided with 
adequate food, heat, light, sanitary facilities, bedding, clothing, 
recreation, and medical care, including necessary psychiatric, 
psychological, or other care and treatment. Appointment of a guardian 
ad litem may be required under 18 U.S.C. 5034 to represent the 
interests of the juvenile when the juvenile's parents are not present 
or when the parents' interests may be adverse to that of the juvenile.
    (iii) Persons arrested or charged with a violation of the Act, upon 
being ordered into temporary detention and processed into the detention 
facility, shall, as part of the processing procedures, be required to 
provide the location address of their last U.S. residence as part of 
the routine booking questions securing ``biographical data necessary to 
complete booking or pretrial services.'' See United States v. D'Anjou, 
16 F.3d 604 (4th Cir.1993). This information shall be recorded in the 
detention documents and made available to the DCO's Office of the Staff 
Judge Advocate. This information shall be forwarded with other case 
file information, including affidavits in support of probable cause 
supporting the arrest and detention, to the DSS/DOJ. The information is 
provided so that the DSS/DOJ may make appropriate preliminary decisions 
about venue. See paragraph (b)(2) of this section.
    (A) Notice of the temporary detention of any person for a violation 
of the Act shall be forwarded through command channels, without 
unnecessary delay, to the Combatant Commander, who shall advise the 
General Counsel of the Department of Defense, as the representative of 
the Secretary of Defense, of all such detentions. At the discretion of 
the General Counsel of the Department of Defense, other agencies and 
organizations (such as the Legal

[[Page 76006]]

Counsel to the Chairman of the Joint Chiefs of Staff and Secretary of 
the Military Department that sponsored the person into the foreign 
country) shall be informed, as appropriate.
    (B) Such notice shall include a summary of the charges, facts and 
circumstances surrounding the offenses, information regarding any 
applicable SOFA or other international agreements affecting 
jurisdiction in the case, and the reasons warranting temporary 
detention.
    (iv) If military command authorities at the military installation 
outside the United States intend to request a person's detention by 
order of the Federal Magistrate Judge, the military representative 
assigned to the case shall gather the necessary information setting 
forth the reasons in support of a motion to be brought by the attorney 
representing the government at the initial proceeding conducted 
pursuant to section 3265 of the Act.
    (v) This part is not intended to eliminate or reduce existing 
obligations or authorities to detain persons in foreign countries as 
required or permitted by agreements with host countries. See generally, 
United States v. Murphy, 18 M.J. 220 (CMA 1984).
    (6) Custody and Transport of Persons While in Temporary Detention. 
(i) The Department of Defense may only take custody of and transport 
the person as specifically set forth in the Act. This is limited to 
delivery as soon as practicable to the custody of U.S. civilian law 
enforcement authorities for removal to the United States for judicial 
proceedings; delivery to appropriate authorities of the foreign country 
in which the person is alleged to have committed the violation of 
section 3261(a) of the Act in accordance with section 3263; or, upon a 
determination by the Secretary of Defense, or the Secretary's designee, 
that military necessity requires it, removal to the nearest U.S. 
military installation outside the United States adequate to detain the 
person and to facilitate the initial appearance described in 3265(a) of 
the Act.
    (ii) Responsibility for a detained person's local transportation, 
escort, and custody requirements remains with the command that placed 
the person in temporary detention for a violation of section 3261(a) of 
the Act. This responsibility includes:
    (A) Attendance at official proceedings and other required health 
and welfare appointments (e.g., appointments with counsel, medical and 
dental appointments, etc.).
    (B) Delivery to host nation officials under section 3263 of the 
Act.
    (C) Attendance at Initial Proceedings conducted under section 3265 
of the Act.
    (D) Delivery under the Act to the custody of U.S. civilian law 
enforcement authorities for removal to the United States.
    (iii) A person who requires the continued exercise of custody and 
transportation to appointments and locations away from the detention 
facility, including delivery of the person to host nation officials 
under section 3263 of the Act, may be transferred under the custody of 
command authorities or those law enforcement officers authorized to 
make arrests in paragraphs (b)(4)(iv) and (b)(4)(v) of this section. 
Transportation of a detainee outside an installation shall be 
coordinated with the host nation's local law enforcement, as 
appropriate and in accordance with recognized practices.
    (iv) Military authorities retain responsibility for the custody and 
transportation of a person arrested or charged with a violation of the 
Act who is to be removed from one military installation outside the 
United States to another military installation outside the United 
States, including when the person is transferred under the provisions 
of section 3264(b)(5) of the Act. Unless otherwise agreed to between 
the sending and receiving commands, it shall be the responsibility of 
the sending command to make arrangements for the person's 
transportation and custody during the transport or transfer to the 
receiving command.
    (v) In coordination with appropriate host nation authorities, U.S. 
civilian law enforcement authorities shall be responsible for taking 
custody of a person arrested or charged with a violation of the Act and 
for the removal of that person to the United States for any pretrial or 
trial proceedings. DoD officials shall consult with the DSS/DOJ to 
determine which civilian law enforcement authority (i.e., U.S. Marshals 
Service, Federal Bureau of Investigation, Drug Enforcement Agency, or 
other Federal agency) shall dispatch an officer to the overseas' 
detention facility to assume custody of the person for removal to the 
United States. Until custody of the person is delivered to such U.S. 
civilian law enforcement authorities, military authorities retain 
responsibility for the custody and transportation of the person 
arrested or charged with a violation of the Act, to include 
transportation within the host nation to help facilitate the removal of 
the person to the United States under the Act.
    (7) Release From Temporary Detention. When a person subject to the 
Act has been placed in temporary detention, in the absence of a 
Criminal Complaint or Indictment pursuant to the Federal Rules of 
Criminal Procedure, only the Commander who initially ordered detention, 
or a superior Commander, or a Federal Magistrate Judge, may order the 
release of the detained person. If a Criminal Complaint or Indictment 
exists, or if a Federal Magistrate Judge orders the person detained, 
only a Federal Magistrate Judge may order the release of the person 
detained. If a Federal Magistrate Judge orders the person temporarily 
detained to be released from detention, the Commander who ordered 
detention, or a superior Commander, shall cause the person to be 
released. When a person is released from detention under this 
provision, the Commander shall implement, to the extent practicable 
within the commander's authority, any conditions on liberty directed in 
the Federal Magistrate Judge's order. When the commander who 
independently ordered the person's temporary detention without reliance 
on a Federal Magistrate Judge's order, or a superior commander, orders 
a person's release before a Federal Magistrate Judge is assigned to 
review the matter, the commander may, within the commander's authority, 
place reasonable conditions upon the person's release from detention.
    (i) A person's failure to obey the conditions placed on his or her 
release from detention, in addition to subjecting that person to the 
commander's, or Federal Magistrate Judge's order to be returned to 
detention, may consistent with the commander's authority and applicable 
policy, laws, and regulations, subject the person to potential criminal 
sanctions, or to administrative procedures leading to a loss of command 
sponsorship to the foreign country, as well as the possibility of 
additional disciplinary or adverse action.
    (ii) A copy of all orders issued by a Federal Magistrate Judge 
concerning initial proceedings, detention, conditions on liberty, and 
removal to the United States shall promptly be provided to the 
Commander of the Combatant Command concerned and the Commander of the 
detention facility at which the person is being held in temporary 
detention.
    (8) Delivery of Persons to Host Nation Authorities. (i) Persons 
arrested may be delivered to the appropriate authorities of the foreign 
country in which the person is alleged to have violated section 3261(a) 
of the Act, when:
    (A) Authorities of a foreign country request that the person be 
delivered for

[[Page 76007]]

trial because the conduct is also a violation of that foreign country's 
laws, and
    (B) Delivery of the person is authorized or required by treaty or 
another international agreement to which the United States is a party.
    (ii) Coast Guard personnel authorized to make arrests pursuant to 
paragraph (b)(4)(v) of this section are also authorized to deliver 
persons to foreign country authorities, as provided in section 3263 of 
the Act.
    (iii) Section 3263(b) of the Act calls upon the Secretary of 
Defense, in consultation with the Secretary of State, to determine 
which officials of a foreign country constitute appropriate authorities 
to which persons subject to the Act may be delivered. For purposes of 
the Act, those authorities are the same foreign country law enforcement 
authorities as are customarily involved in matters involving foreign 
criminal jurisdiction under an applicable SOFA or other international 
agreement or arrangement between the United States and the foreign 
country.
    (iv) No action may be taken under this part with a view toward the 
prosecution of a person for a violation of the Act 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(s), except upon the approval of the Attorney 
General or the Deputy Attorney General (or a person acting in either 
such capacity). See section 3261(b) of the Act. Requests for an 
exception shall be written and forwarded to the Combatant Commander. 
The Combatant Commander shall forward the request to the General 
Counsel of the Department of Defense, as representative for the 
Secretary of Defense, for review and transmittal to the Attorney 
General of the United States. At the discretion of the General Counsel 
of the Department of Defense, other agencies and organizations (such as 
the Legal Counsel to the Chairman of the Joint Chiefs of Staff and the 
Secretary of the Military Department that sponsored the person into the 
foreign country) shall be informed, as appropriate.
    (v) Except for persons to be delivered to a foreign country, and 
subject to the limitations of section 3264 of the Act and paragraph 
(e)(5) of this section, persons arrested for conduct in violation of 
the Act shall, upon the issuance of a removal order by a Federal 
Magistrate Judge under section 3264(b) of the Act, be delivered, as 
soon as practicable, to the custody of U.S. civilian law enforcement 
authorities. See paragraph (b)(6)(iv) of this section.
    (c) Representation. (1) Civilian Defense Counsel. (i) Civilian 
defense counsel representation shall not be at the expense of the 
Department of Defense or the Military Departments.
    (ii) The Act contemplates that a person arrested or charged with a 
violation of the Act shall be represented by a civilian attorney 
licensed to practice law in the United States. However, it is also 
recognized that in several host nations where there has been a long-
standing military presence, qualified civilian attorneys (including 
lawyers who are U.S. citizens) have established law practices in these 
host nations to assist assigned U.S. personnel and to represent service 
members in courts-martial, or before host nation courts. With the 
consent of the person arrested or charged with a violation of the Act 
who wishes to remain in the foreign country, these lawyers can provide 
adequate representation for the limited purpose of any initial 
proceedings required by the Act. When the person entitled to an 
attorney or requests counsel, staff judge advocates at such locations 
should assemble a list of local civilian attorneys for the person's 
consideration. The list shall contain a disclaimer stating that no 
endorsement by the United States government or the command is expressed 
or implied by the presence of an attorney's name on the list.
    (A) To the extent practicable, military authorities shall establish 
procedures by which persons arrested or charged with a violation of the 
Act may seek the assistance of civilian defense counsel by telephone. 
Consultation with such civilian counsel shall be in private and 
protected by the attorney-client privilege.
    (B) Civilian defense counsel, at no expense to the Department of 
Defense, shall be afforded the opportunity to participate personally in 
any initial proceedings required by the Act that are conducted outside 
the United States. When civilian defense counsel cannot reasonably 
arrange to be personally present for such representation, alternative 
arrangements shall be made for counsel's participation by telephone or 
by such other means that enables voice communication among the 
participants.
    (C) When at least one participant cannot arrange to meet at the 
location outside the United States where initial proceedings required 
by the Act are to be conducted, whenever possible arrangements should 
be made to conduct the proceedings by video teleconference or similar 
means. Command video teleconference communication systems should be 
used for this purpose, if resources permit, and if such systems are not 
otherwise unavailable due to military mission requirements. When these 
capabilities are not reasonably available, the proceedings shall be 
conducted by telephone or such other means that enables voice 
communication among the participants. See section 3265 of the Act.
    (D) The above provisions regarding the use of teleconference 
communication systems apply to any detention proceedings that are 
conducted outside the United States under section 3265(b) of the Act.
    (E) Civilian defense counsel practicing in host nations do not gain 
Department of Defense sponsorship, nor any diplomatic status, as a 
result of their role as defense counsel. To the extent practicable, 
notice to this effect shall be provided to the civilian defense counsel 
when the civilian defense counsel's identity is made known to 
appropriate military authorities.
    (2) Qualified Military Counsel. (i) Counsel representation also 
includes qualified military counsel that the Judge Advocate General of 
the Military Department concerned determines is reasonably available 
for the purpose of providing limited representation at initial 
proceedings required by the Act and conducted outside the United 
States. By agreement with the Department of Homeland Security, Coast 
Guard commands and activities located outside the United States shall 
seek to establish local agreements with military commands for qualified 
military counsel from the Military Departments to provide similar 
limited representation in cases arising within the Coast Guard. The 
Secretaries of the Military Departments shall establish regulations 
governing representation by qualified military counsel. These 
regulations, at a minimum, shall require that the command's Staff Judge 
Advocate:
    (ii) Prepare, update as necessary, and make available to a Federal 
Magistrate Judge upon request, a list of qualified military counsel who 
are determined to be available for the purpose of providing limited 
representation at initial proceedings.
    (iii) Ensure that the person arrested or charged under the Act is 
informed that any qualified military counsel shall be made available 
only for the limited purpose of representing that person in any initial 
proceedings that are to be conducted outside the United States, and 
that such representation does not extend to further legal proceedings 
that may occur either in a foreign country or the United States. The 
person arrested

[[Page 76008]]

or charged shall also be required, in writing, to acknowledge the 
limited scope of qualified military counsel's representation and 
therein waive that military counsel's further representation in any 
subsequent legal proceedings conducted within a foreign country or the 
United States. The ``Acknowledgement of Limited Representation,'' at 
appendix A of this part, may be used for this purpose. A copy of the 
``Acknowledgement of Limited Representation'' shall be provided to the 
person arrested or charged under the Act, as well as to the qualified 
military counsel. The original acknowledgement shall be kept on file in 
the DCO's Office of the Staff Judge Advocate.
    (iv) Provide available information that would assist the Federal 
Magistrate Judge make a determination that qualified civilian counsel 
are unavailable, and that the person arrested or charged under the Act 
is unable financially to retain civilian defense counsel, before a 
qualified military counsel who has been made available is assigned to 
provide limited representation. See Analysis and Discussion of Section 
3265(c), Report Accompanying the Act.
    (3) Union Representation. Agency law enforcement officials shall 
comply with applicable Federal civilian employee rights and 
entitlements, if any, regarding collective bargaining unit 
representation under 5 U.S.C. chapter 71, during pretrial questioning 
and temporary detention procedures under this part.
    (4) Military Representative. (i) To assist law enforcement officers 
and the U.S. Attorney's representative assigned to a case, a judge 
advocate, legal officer, or civilian attorney-advisor may be appointed 
as a military representative to represent the interests of the United 
States. As appropriate, the military representative may be appointed as 
a Special Assistant U.S. Attorney. The military representative shall be 
responsible for assisting the command, law enforcement, and U.S. 
Attorney representatives during pretrial matters, initial proceedings, 
and other procedures required by the Act and this part. These 
responsibilities include assisting the U.S. Attorney representative 
determine whether continued detention is warranted, and to provide 
information to the presiding Federal Magistrate Judge considering the 
following:
    (ii) If there is probable cause to believe that a violation of the 
Act has been committed and that the person arrested or charged has 
committed it,
    (iii) If the person being temporarily detained should be kept in 
detention or released from detention, and, if released, whether any 
conditions practicable and reasonable under the circumstances, should 
be imposed.
    (d) Initial Proceedings. (1) A person arrested for or charged with 
a violation of the Act may be entitled to an initial appearance before 
a judge and/or a detention hearing (collectively, the ``initial 
proceedings''). The initial proceedings are intended to meet the 
requirements of the Federal Rules of Criminal Procedure. The initial 
proceedings are not required when the person under investigation for 
violating the Act has not been arrested or temporarily detained by U.S. 
military authorities, or the person's arrest or temporary detention by 
U.S. law enforcement authorities occurs after the person ceases to 
accompany or be employed by the Armed Forces outside the United States, 
or the arrest or detention takes place within the United States.
    (2) The initial proceedings to be conducted pursuant to the Act and 
this part shall not be initiated for a person delivered to foreign 
country authorities and against whom the foreign country is prosecuting 
or has prosecuted the person for the conduct constituting such offense, 
except when the Attorney General or Deputy Attorney General (or a 
person acting in either such capacity) has approved an exception that 
would allow for prosecution in the United States may initial 
proceedings under the Act be conducted, under these circumstances. 
Requests for approval of such an exception shall be forwarded through 
the Commander of the Combatant Command to the General Counsel of the 
Department of Defense, in accordance with paragraph (b)(8)(iv) of this 
section.
    (3) Initial proceedings required by the Act and this part shall be 
conducted, without unnecessary delay. In accordance with the U.S. 
Supreme Court decision in County of Riverside v. McLaughlin, 500 U.S. 
44 (1991), the initial appearance shall be conducted within 48 hours of 
the arrest. The initial proceedings required by the Act shall be 
conducted when:
    (i) The person arrested has not been delivered to foreign country 
authorities under the provisions of section 3263 of the Act; or
    (ii) The foreign country authorities having custody of the person 
delivers the person to U.S. military authorities without first 
prosecuting the person for such conduct as an offense under the laws of 
that foreign country.
    (4) A Federal Magistrate Judge shall preside over the initial 
proceedings that are required by the Act and this part. The proceedings 
should be conducted from the United States using video teleconference 
methods, if practicable, and with all parties to the proceedings 
participating. In the event that there is no video teleconference 
capability, or the video teleconference capability is unavailable due 
to military requirements or operations, the parties to the proceeding 
shall, at a minimum, be placed in contact by telephone.
    (5) Initial proceedings conducted pursuant to the Act and this part 
shall include the requirement for the person's initial appearance under 
the Federal Rules of Criminal Procedure. The Federal Magistrate Judge 
shall determine whether probable cause exists to believe that an 
offense under section 3261(a) of the Act has been committed and that 
the identified person committed it. This determination is intended to 
meet the due process requirements to which the person is entitled, as 
determined by the U.S. Supreme Court in Gerstein v. Pugh, 420 U.S. 103 
(1975).
    (6) Initial proceedings shall also include a detention hearing 
where required under 18 U.S.C. 3142 and the Federal Rules of Criminal 
Procedure. A detention hearing may be required when:
    (i) The person arrested or charged with a violation of the Act has 
been placed in temporary detention and the intent is to request 
continued detention; or
    (ii) The United States seeks to detain a person arrested or charged 
with a violation of the Act who has not previously been detained.
    (7) A detention hearing shall be conducted by a Federal Magistrate 
Judge. When the person arrested or charged requests, the detention 
hearing be conducted while the person remains outside the United 
States, detention hearing shall be conducted by the same Federal 
Magistrate Judge presiding over the initial proceeding and shall be 
conducted by telephone or other means that allow for voice 
communication among the participants, including the person's defense 
counsel. If the person does not so request, or if the Federal 
Magistrate Judge so orders, the detention hearing shall be held in the 
United States after the removal of the person to the United States.
    (8) In the event that the Federal Magistrate Judge orders the 
person's release prior to trial, and further directs the person's 
presence in the district in which the trial is to take place, the U.S. 
Attorney Office's representative responsible for prosecuting the case 
shall inform the military representative

[[Page 76009]]

and the DCO's Office of the Staff Judge Advocate.
    (9) Under circumstances where the person suspected of committing an 
offense in violation of the Act has never been detained or an initial 
proceeding conducted, the presumption is that a trial date shall be 
established at which the defendant would be ordered to appear. Such an 
order would constitute an order under section 3264(b)(4) of the Act 
that ``otherwise orders the person to be removed.'' The person's 
failure to appear as ordered shall be addressed by the Court as with 
any other failure to comply with a valid court order.
    (10) The DCO's Office of the Staff Judge Advocate shall assist in 
arranging for the conduct of initial proceedings required by the Act 
and this part, and shall provide a military representative to assist 
the U.S. Attorney's Office representative in presenting the information 
for the Federal Magistrate Judge's review. The military representative 
shall also provide any administrative assistance the Federal Magistrate 
Judge requires at the location outside the United States where the 
proceedings shall be conducted.
    (e) Removal of Persons to the United States or Other Countries. (1) 
In accordance with the limitation established by section 3264 of the 
Act, military authorities shall not remove, to the United States or any 
other foreign country, a person suspected of violating section 3261(a) 
of the Act, except when:
    (i) The person's removal is to another foreign country in which the 
person is believed to have committed a violation of section 3261(a) of 
the Act; or
    (ii) The person is to be delivered, upon request, to authorities of 
a foreign country under section 3263 of the Act and paragraph (b)(8) of 
this section; or
    (iii) The person is arrested or charged with a violation of the Act 
and the person is entitled to, and does not waive, a preliminary 
examination under Federal Rule of Criminal Procedure 5.1, in which case 
the person shall be removed to the U.S. for such examination; or
    (iv) The person's removal is ordered by a Federal Magistrate Judge. 
See paragraph (e)(2) of this section; or
    (v) The Secretary of Defense, or the Secretary's designee, directs 
the person be removed, as provided in section 3264(b)(5) of the Act and 
paragraph (e)(3) of this section.
    (2) Removal By Order of a Federal Magistrate Judge. Military 
authorities may remove a person suspected of violating section 3261(a) 
of the Act to the United States, when:
    (i) A Federal Magistrate Judge orders that the person be removed to 
the United States to be present at a detention hearing; or
    (ii) A Federal Magistrate Judge orders the detention of the person 
prior to trial (See 18 U.S.C. 3142(e), in which case the person shall 
be promptly removed to the United States for such detention; or
    (iii) A Federal Magistrate Judge otherwise orders the person be 
removed to the United States.
    (3) Removal By Direction of the Secretary of Defense or Designee. 
The Secretary of Defense, or designee, may order a person's removal 
from a foreign country within the Combatant Command's geographic area 
of responsibility when, in his sole discretion, such removal is 
required by military necessity. See section 3264(b)(5) of the Act. 
Removal based on military necessity may be authorized in order to take 
into account any limiting factors that may result from military 
operations, as well as the capabilities and conditions associated with 
a specific location.
    (i) When the Secretary of Defense, or designee, determines that a 
person arrested or charged with a violation of the Act should be 
removed from a foreign country, the person shall be removed to the 
nearest U.S. military installation outside the United States where the 
limiting conditions requiring such a removal no longer apply, and where 
there are available facilities and adequate resources to temporarily 
detain the person and conduct the initial proceedings required by the 
Act and this part.
    (ii) The relocation of a person under this paragraph does not 
authorize the further removal of the person to the United States, 
unless that further removal is authorized by an order issued by a 
Federal Magistrate Judge under paragraph (e)(2) of this section.
    (iii) Delegation. The Commander of a Combatant Command, and the 
Commander's principal assistant, are delegated authority to make the 
determination, based on the criteria stated in paragraph (e)(3) of this 
section, that a person arrested or charged with a violation of the Act 
shall be removed from a foreign country under section 3264(b)(5) of the 
Act and this part. Further delegation is authorized, but the delegation 
of authority is limited to a subordinate commander within the command 
who is designated as a general court-martial convening authority under 
the UCMJ.
    (4) A person who is removed to the United States under the 
provisions of the Act and this part and who is thereafter released from 
detention, and otherwise at liberty to return to the location outside 
the United States from which he or she was were removed, shall be 
subject to any requirements imposed by a Federal District Court of 
competent jurisdiction.
    (5) Where a person has been removed to the United States for a 
detention hearing or other judicial proceeding and a Federal Magistrate 
Judge orders the person's release and permits the person to return to 
the overseas location, the Department of Defense (including the 
Military Department originally sponsoring the person to be employed or 
to accompany the Armed Forces outside the United States) shall not be 
responsible for the expenses associated with the return of the person 
to the overseas location, or the person's subsequent return travel to 
the United States for further court proceedings that may be required.

Appendix A To Part 153--Guidelines

    (a) Civilians employed by the Armed Forces outside the United 
States who commit felony offenses while outside the U.S. are subject 
to U.S. criminal jurisdiction under the Act, and shall be held 
accountable for their actions, as appropriate.
    (b) Civilians accompanying the Armed Forces outside the United 
States who commit felony offenses while outside the U.S. are subject 
to U.S. criminal jurisdiction under the Act, and shall be held 
accountable for their actions, as appropriate.
    (c) Former members of the Armed Forces who commit felony 
offenses while serving as a member of the Armed Forces outside the 
U.S., but who ceased to be subject to UCMJ court-martial 
jurisdiction without having been tried by court-martial for such 
offenses are subject to U.S. criminal jurisdiction under the Act and 
shall be held accountable for their actions, as appropriate.
    (d) The procedures of this part and DoD actions to implement the 
Act shall comply with applicable Status of Forces Agreements, and 
other international agreements affecting relationships and 
activities between the respective host nation countries and the U.S. 
Armed Forces. These procedures may be employed outside the United 
States only if the foreign country concerned has been briefed or is 
otherwise aware of the Act and has not interposed an objection to 
the application of these procedures. Such awareness may come in 
various forms, including but not limited to Status of Forces 
Agreements containing relevant language, Diplomatic Notes or other 
acknowledgements of briefings, or case-by-case arrangements, 
agreements, or understandings with appropriate host nation 
officials.
    (e) Consistent with the long-standing policy of maximizing U.S. 
jurisdiction over its citizens, the Act and this part provide a 
mechanism for furthering this objective by closing a jurisdictional 
gap in U.S. law and thereby permitting the criminal prosecution of 
covered persons for offenses committed outside the United States. In 
so doing, the Act and this part provide, in appropriate cases, an 
alternative to a host nation's exercise of its criminal jurisdiction 
should

[[Page 76010]]

the conduct that violates U.S. law also violate the law of the host 
nation, as well as a means of prosecuting covered persons for crimes 
committed in areas in which there is no effective host nation 
criminal justice system.
    (f) In addition to the limitations imposed upon prosecutions by 
section 3261(b) of the Act, the Act and these procedures should be 
reserved generally for serious misconduct for which administrative 
or disciplinary remedies are determined to be inadequate or 
inappropriate. Because of the practical constraints and limitations 
on the resources available to bring these cases to successful 
prosecution in the United States, initiation of action under this 
part would not generally be warranted unless serious misconduct were 
involved.
    (g) The procedures set out in the Act and this part do not apply 
to cases in which the return of fugitive offenders is sought through 
extradition and similar proceedings, nor are extradition procedures 
applicable to cases under the Act.

Appendix B to Part 153--Acknowledgment of Limited Legal Representation 
(Sample)

    1. I, --------------------, have been named as a suspect or 
defendant in a matter to which I have been advised is subject to the 
jurisdiction of the Military Extraterritorial Jurisdiction Act of 
2000 (18 U.S.C. 3261, et. seq.); hereinafter referred to as ``the 
Act''. I have also been informed that certain initial proceedings 
under 18 U.S.C. 3265 may be required under this Act, for which I am 
entitled to be represented by legal counsel.
    2. I acknowledge and understand that the appointment of military 
counsel for the limited purpose of legal representation in 
proceedings conducted pursuant to the Act is dependent upon my being 
unable to retain civilian defense counsel representation for such 
proceedings, due to my indigent status, and that qualified military 
defense counsel has been made available.
    3. Pursuant to the Act, --------------------, a Federal 
Magistrate Judge, has issued the attached Order and has directed 
that that military counsel be made available:
    ---- For the limited purpose of representing me at an initial 
proceeding to be conducted outside the United States pursuant to 18 
U.S.C. 3265,
    ---- For the limited purpose of representing me in an initial 
detention hearing to be conducted outside the United States pursuant 
to 18 U.S.C. 3265(b),
    4. ------------------, military counsel, has been made available 
in accordance with Department of Defense Instruction 5525.bb, and as 
directed by the attached Order of a Federal Magistrate Judge.
    5. I (do) (do not) wish to be represented by ------------------
--, military counsel ------ (Initials).
    6. I understand that the legal representation of --------------
------, military counsel, is limited to:
    a. Representation at the initial proceedings conducted outside 
the United States pursuant to 18 U.S.C. 3265. ------ (Initials)
    b. The initial detention hearing to be conducted outside the 
United States pursuant to the Military Extraterritorial Jurisdiction 
Act of 2000 (18 U.S.C. 3261, et. seq.). ---------- (Initials)
    c. Other proceedings (Specify): --------------------. ------ 
(Initials) --------------------

Signature of Person To Be Represented By Military Counsel ----------
----------

Signature of Witness\*\

Attachment:

Federal Magistrate Judge Order

(*Note: The witness must be a person other than the defense counsel 
to be made available for this limited legal representation.)

    Dated: December 2, 2005.
L.M. Bynum,
 Alternate OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 05-23938 Filed 12-21-05; 8:45 am]
BILLING CODE 5001-06-P