Sens. Leahy and Kaufman and Rep. David Price introduced companion bills in the Senate and House titled the “Civilian Extraterritorial Jurisdiction Act” (CEJA?), on Feb. 2, 2010. H.R. 4567 and S. 2979 create a new section 3272 in title 18 that begins:
(a) Whoever, while employed by or accompanying any department or agency of the United States other than the Armed Forces, knowingly engages in conduct (or conspires or attempts to engage in conduct) outside the United States that would constitute an offense enumerated in subsection (c) had the conduct been engaged in within the United States or within the special maritime and territorial jurisdiction of the United States shall be punished as provided for that offense
18 USC 3271 and 3272 were previously limited to extraterritorial jurisdiction over certain trafficking in persons offenses. Thus, CEJA creates an entirely new offense. Interestingly, section 3272(c) of CEJA does not enumerate every offense under title 18. Rather, it contains a relatively abbreviated list of serious felonies and corruption offenses, and then a few oddities, but I’ll let you look at the whole list.
The Act also gives defendants a right that they would not otherwise have under international law, namely protection from Double Jeopardy . . . well sort of. A new section 3272(b) states:
(b) No prosecution for an offense may be commenced against a person under this section if a foreign government, in accordance with jurisdiction recognized by the United States, has prosecuted or is prosecuting such person for the conduct constituting the offense, except upon the approval of the Attorney General or the Deputy Attorney General (or a person acting in either such capacity), which function of approval may not be delegated.
If made law, the Act will, according to Rep. Price’s press release, “close a gap in current law to make certain that American government employees and contractors are not immune from prosecution for crimes committed overseas.”
Unfortunately the bill also picks up where the MEJA left off with its definitional concepts. First, the bill does nothing with the language in 18 USC 3267 (MEJA), which defines persons subject to MEJA based upon the phrase “the extent such employment relates to supporting the mission of the Department of Defense overseas.”
The new offense, uses, as noted above, the phrase “employed by any department or agency of the United States other than the Armed Forces.” CEJA section 3272(d)(1) defines that phrase by requiring that a contrator employee’s employment “supports a program, project, or activity for a department or agency of the United States other than the Armed Forces.” 3272(d)(2) also uses the new phrase “accompanying any department or agency of the United States other than the Armed Forces,” which is similarly defined and captures dependents of those in 3272(d)(1) of the bill. No further definition is given for the word “supports.”
As Sen. Leahy’s press release states, the bill also will
Direct the Justice Department to create new investigative units to investigate, arrest and prosecute contractors and employees who commit serious crimes.
Allow the Attorney General to authorize federal agents to arrest alleged offenders outside of the United States, if there is probable cause that an employee or contractor has committed a crime.
Require the Attorney General to report annually to Congress the number of offenses received, investigated and prosecuted under the statute; the number, location, and deployments of the newly created investigative units; and any changes needed in the law to make it more effective.
More to follow as the Act progresses through Congress. We’ll see if anyone tries to do anything with MEJA as part of the mark up process.