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.

8 Responses to “Civilian Extraterritorial Jurisdiction Act Introduced in House and Senate”

  1. de minimis says:

    very interested that Leahy joined

  2. Cloudesley Shovell says:

    What an awful idea. It is commonplace for federal contractors to hire foreign nationals to assist in foreign nations. This law sweeps within its purported grasp “subcontractors at any tier.” It exempts foreign nationals who are nationals or residents of the foreign nation where the purported criminal act occurs, but that leaves a gaping hole. Suppose a third-tier subcontractor hires a a person from Switzerland to assist with a project just across the border in Austria? The Swiss person does something that is perfectly legal in Austria but violates something in that laundry list in the proposed statute (say, trading in US military decorations in violation of 18 USC 704). The US now asserts jurisdiction over the Swiss person for acts done in Austria as a third-tier subcontractor. Absurd.

    I suspect Congress would flip if Switzerland or Austria asserted the same power to police conduct within the US.

  3. Mike "No Man" Navarre says:

    Sir C:

    18 USC 3267(1)(C) (MEJA): The term “employed by the Armed Forces outside the United States” means— . . . not a national of or ordinarily resident in the host nation.

    18 USC 3272(d)(1)(D) (CEJA): The term “employed by any department or agency of the United States other than the Armed Forces” means— . . . not a national of or ordinarily resident in the host nation.

    I think the ship has sailed on the concept. I also think as a matter of sovereignty it is probably something that the US needs to concede, but I am open to re-education on that point.

  4. Cloudesley Shovell says:

    Good Sir,

    That is exactly why I had the Swiss person doing work in Austria. Austria is the host nation. The Swiss person is neither a national nor ordinarily a resident of Austria.

    If the Swiss person violates some US law, he is subject to US jurisdiction, trial, and punishment. I picked the trading in military decorations to highlight the absurdity–it’s one of the listed crimes that supposedly justifies this ridiculous breach of the long-standing idea that no nations laws extend beyond its borders. Trafficking in military decorations hardly rises to the level of piracy on the high seas, genocide, or war crimes, but apparently its reason enough for the US to stick its nose into the affairs of foreign nations.

    And yes, this type of subcontracting of third-nation nationals by US gov’t contractors happens all the time.

    Yrs humbly,
    CS

  5. Mike "No Man" Navarre says:

    I think the host nation in that example could still be Switzerland (but I’d have to check that) and more to the point that’s a SOFA issue if whether one nation or another will exercise authority. This just says can have jurisdiction.

  6. Cloudesley Shovell says:

    Good Sir,

    I thought we were talking about the proposed CEJA, as in civilians. What does a SOFA have to do with anything? The proposed CEJA purports to assert worldwide jurisdiction over a person who has even the most remote connection the the United States, thus the “subcontractor at any tier” language. It also applies to any dep’t or agency of the United States other than the Armed Forces.

    Nothing in the proposed language limits it to acts done while in the scope of employment. It applies to all acts at all times while employed by or accompanying any US dep’t or agency (whatever the heck “accompanying an agency of the United States” means).

    So, once again, some 3rd tier sub hires a 4th tier sub from country B to provide interpreter services for three days in country C. While in country C, the 4th tier sub, who collects militaria, buys a couple old US military decorations at pawn shop, in violation of 18 USC 704. What principle of international law makes that alleged malum prohibitum act so serious that it justifies departure from the norm that nations do not exercise criminal jurisdiction outside their borders?

    This is a road down which no government should be traveling. It just invites other countries to retaliate with similar idiotic assertions of universal or near-universal jurisdiction. If the US thinks the Interational Criminal Court is such a bad idea, why is it proposing these draconian extensions of jurisdiction? I see this proposal as a big step on the road to the hell of universal jurisdiction. I hardly think the harm sought to be prevented by this proposed statute is so important that it justifies the risk of the very forseeable unintended consequence of universal jurisdiction. Has there been any showing of harm in the first place (other than some silly Congressional “finding”?)

    Yrs humbly,
    CS

  7. John O'Connor says:

    I agree with Cloudesley, with one quibble. From what I can see, there’s been no congressional finding, yet.

    I also think Congress has gone a little batty in its zeal to create new laws to apply to contractors. That’s not to say the government has no legitimate interest in having some laws apply to contractors supportuing the United States overseas. But the hackneyed talking point that contractors should be subject to the same laws as soldiers isn’t really true. The government’s interest in regulating the conduct of soldiers is based on different (and additional) policy concerns than regulating the conduct of civilians.

  8. anonymous says:

    Why not just do what we did in WWII, whatever that was.