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“THE MILITARY AND EXTRATER-RITORIAL JURISDICTION ACT OF 1999” mentioning the U.S. Dept of State was published in the Senate section on pages S7925-S7926 on June 30, 1999.
The publication is reproduced in full below:
THE MILITARY AND EXTRATER-RITORIAL JURISDICTION ACT OF 1999
Mr. LEAHY. Mr. President, I support S. 768, which was significantly improved during the Judiciary Committee mark up with a substitute amendment that I cosponsored with Senators Sessions and DeWine. This important legislation will close a gap in Federal law that has existed for many years. S. 768 establishes authority for Federal jurisdiction over crimes committed by individuals accompanying our military overseas and court-martial jurisdiction over Department of Defense employees and contractors accompanying the Armed Forces on contingency missions outside the United States during times of war or national emergency declared by the President or the Congress.
Civilians accompanying the Armed Forces have been subject to court-
martial jurisdiction when ``accompanying or serving with the Armies of the United States in the field'' since the Revolutionary War. See McCune v. Kilpatrick, 53 F. Supp. 80, 84 (E.D. Va. 1943). It is only since the start of the Cold War that American troops, accompanied by civilian dependents and employees, have been stationed overseas in peace time. Provisions of the Uniform Code of Military Justice provide for the court-martial of civilians accused of crimes while accompanying the armed forces in times of peace or war. The provisions allowing for peace time court-martial of civilians were found unconstitutional by a series of Supreme Court cases beginning with Reid v. Covert, 354 U.S. 1
(1957). With foreign nations often not interested in prosecuting crimes against Americans, particularly when committed by an American, the result is a jurisdictional ``gap'' that allows some civilians to literally get away with murder.
A report by the Overseas Jurisdiction Advisory Committee submitted to Congress in 1997, cited cases in which host countries declined to prosecute serious crimes committed by civilians accompanying our Armed Forces. These cases involved the sexual molestation of dependent girls, the stabbing of a serviceman and drug trafficking to soldiers. The individuals who committed these crimes against service men and women or their dependents were not prosecuted in the host country and were free to return to the United States and continue their lives as if the incidents had never occurred. The victims of these awful crimes are left with no redress for the suffering they endured.
This inability to exercise Federal jurisdiction over individuals accompanying our armed forces overseas has caused problems. During the Vietnam War, Federal jurisdiction over civilians was not permissible since war was never declared by the Congress. Major General George S. Prugh said, in his text on legal issues arising during the Vietnam War, that the inability to discipline civilians ``became a cause for major concern to the U.S. command.''
More recently, Operation Desert Storm involved the deployment of 4,500 Department of Defense civilians and at least 3,000 contractor employees. Similarly large deployments of civilians have been repeated in contingency operations in Somalia, Haiti, Kuwait and Rwanda. Although crime by civilians accompanying our armed forces in Operation Desert Storm was rare, the Department of Defense did report that four of its civilian employees were involved in significant criminal misconduct ranging from transportation of illegal firearms to larceny and receiving stolen property. One of these civilians was suspended without pay for 30 days while no action was taken on the remaining three.
Due to the lack of Federal jurisdiction over civilians in a foreign country, administrative remedies such as dismissal from the job, banishment from the base, suspension without pay, or returning the person to the United States are often the only remedies available to military authorities to deal with civilian offenders. The inadequacy of these remedies to address the criminal activity of civilians accompanying our Armed Forces overseas results in a lack of deterrence and an inequity due to the harsher sanctions imposed upon military personnel who committed the same crimes as civilians.
I expect the deployment of civilians in Kosovo and elsewhere will be relatively crime free, but regardless of the frequency of its use, the gap that allows individuals accompanying our military personnel overseas to go unpunished for heinous crimes must be closed. Our service men and women and those accompanying them deserve justice when they are victims of crime. That is why I introduced this provision as part of the Safe Schools, Safe Streets and Secure Borders Act with other Democratic Members, both last year as S. 2484 and again on January 19 of this year, as S. 9.
I had some concerns with certain aspects of S. 768 that were not included in my version of this legislation, and I am pleased that we were able to address those concerns in the Sessions-Leahy-DeWine substitute. For example, the original bill would have extended court-
martial jurisdiction over DOD employees and contractors accompanying our Armed Forces overseas. The Supreme Court in Reid v. Covert, 354 U.S. 1 (1957), Kinsella v. Singleton, 361 U.S. 234 (1960) and Toth v. Quarles, 350 U.S. 11 (1955), has made clear that court-martial jurisdiction may not be constitutionally applied to crimes committed in peacetime by persons accompanying the armed forces overseas, or to crimes committed by a former member of the armed services.
The substitute makes clear that this extension of court-martial jurisdiction applies only in times when the armed forces are engaged in a ``contingency operation'' involving a war or national emergency declared by the Congress or the President. I believe this comports with the Supreme Court rulings on this issue and cures any constitutional infirmity with the original language.
In addition, the original bill would have deemed any delay in bringing a person before a magistrate due to transporting the person back to the U.S. from overseas as ``justifiable.'' I was concerned that this provision could end up excusing lengthy and unreasonable delays in getting a civilian, who was arrested overseas, before a U.S. Magistrate, and thereby raise yet other constitutional concerns.
The Sessions-Leahy-DeWine substitute cures that potential problem by removing the problematic provision and relying instead on Rule 5 of the Federal Rules of Criminal Procedure. This rule requires that an arrested person be brought before a magistrate to answer charges without unnecessary delays, and will apply to the removal of a civilian from overseas to answer charges in the United States.
Finally, S. 768 as introduced authorized the Department of Defense to determine which foreign officials constitute the appropriate authorities to whom an arrested civilian should be delivered. In my proposal for this legislation I required that DOD make this determination in consultation with the Department of State. I felt this would help avoid international faux pax. I am pleased that the Sessions-Leahy substitute adopted my approach to this issue and requires consultation with the Department of State.
I am glad the legislation which I and other Democratic members of the Judiciary Committee originally introduced both last year and again on January 19 of this year, is finally being considered, and I urge its prompt passage.
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