Here is a piece from DVIDS about the 2011 US Japan SOFA clarification. The article has this to say about the new rules regarding civilians:

Under the Military Extraterritorial Jurisdiction Act, SOFA civilians who commit certain crimes overseas can be extradited to the states to be tried in their local U.S. district court.

“The problem with that is it is hard to work,” said [Capt. Jonathan P. Stevens,trial counsel with Combat Logistics Regiment 37, 3d Marine Logistics Group,III MEF]. “All the witnesses and evidence are here, and you have to try to move it all to the states. Sometimes we’re unable to do that.” Additionally, a MEJA prosecution is reserved for serious felonies, said Stevens.

Serious felonies?  Really, one year or more in prison is just about every non-traffic offense in Title 18, no?

Update: Here is a link to the original article on a .mil website.

Seems like this is the new frontier of MEJA, catching child pornography viewers/distributors working for the USG overseas.  Here is the DOJ press release, a couple weeks dated, found it as we were researching our amici brief and forgot to post it until an email from a friend of CAAFlog reminded me.  Have we seen the end of MEJA?  This offense occurred in 2007.

Yesterday the Supremes denied cert in United States v. Green, 654 F.3d 637 (6th Cir. 2011), a MEJA case arising from the notorious Mahmoudiyah rapes and murders.

The Sixth Circuit yesterday, in a published opinion, affirmed the conviction of PFC Steven Green under MEJA, here.  The Court rejected Green’s argument that he had not been through the clearing process for discharge and thus was still subject to UCMJ jurisdiction and not MEJA.  The Court adopted CAAF’s standard for determining when a discharge is complete from United States v. King, 27 M.J. 327 (C.M.A. 1989) and United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008), and thus found the District Court applied the wrong standard.  The Court went on to find, however, that Green had failed to prove he was not discharged: 

Green contends that his discharge was invalid because it failed to comply with Army Regulations 635-10, 635-19, and 635-200, which required the Army to: (1) collect his identification card; (2) conduct a departure ceremony; (3) advise him to apply for compensation; and (4) provide him with formal counseling. However, Green has cited no authority holding that these regulations are essential parts of the clearing process such that strict compliance is necessary to effectuate a valid discharge. These regulations involve ceremonies and briefings intended to aid a soldier’s transition to civilian life, and they are thus related to the separation process. They are not the sort of formal requirements that determine whether the administrative clearing process required for discharge has been completed.

The Court also rejected Green’s constitutional challenges to MEJA.  After swiftly disposing of the non-delegation and separation of powers arguments, the Court finds that Green’s class-of-one equal protection claim fails to show (1) that he was similarly situated with his active duty military conspirators, (2) that the decision to prosecute was improperly motivated, and (3) that the decision to prosecute was otherwise irrational.  It concludes by quickly dispensing of an odd substantive due process argument.

Judge Mul Thapar (sitting by designation) concurs to diverge from a very out of place colloquy by the majority opinion about leadership failures and Green’s unsuitability for enlistment.

H/t Anon

Here is a link to the audio of today’s Hearing before the Senate Judiciary Committee on CEJA, which was poorly titled “Holding Criminals Accountable: Extending Criminal Jurisdiction to Government Contractors and Employees Abroad.”  And here is the Committee page with links to witness testimony on the right.

Appears CEJA is back on track in the Senate Judiciary Committee, see announcement here:

The Senate Committee on the Judiciary has scheduled a hearing entitled “Holding Criminals Accountable: Extending Criminal Jurisdiction to Government Contractors and Employees Abroad” for Wednesday, May 25, 2011 at 10:00 a.m. in Room 226 of the Dirksen Senate Office Building.

The list of witnesses includes Lanny Breuer, the DOJ Criminal Division AAG.  I think the title is a bit odd, but maybe I am mis-reading the emphasis.  We had thought the bill was long lost, see prior coverage here.  H/t MMM

Blog of the Legal Times post here.  DC Circuit’s redacted opinion here.  United States v. Slough, No. 10-3006 (D.C. Cir. Apr. 22, 2011).

Here is the press release from the DOJ Criminal Division and the EDVA USAO about the recent plea by contractor employee Sean Brehm to MEJA charges stemming from the “stabbing [of] another [contractor employee] with a knife at Kandahar Airfield in Afghanistan.”  Prior coverage of his motion challenging the constitutionality of MEJA here.  Nice little thank you to an SJA’s office in the press release, that’s nice to see.  Sentencing is scheduled for July 8, 2011.

Hereis an opinion from US District Court Judge Anthony Trenga of the EDVA, Alexandria Division denying contractor employee Sean Brehm’s constitutional challenges to the Military Extra-Territorial Jurisdiction Act (MEJA).  Brehm contended that:

[A]s applied to him, MEJA (1) violates the Due Process Clause of the Fifth Amendment because there are insufficient contacts between him and the Unites States to justify the United States’ exercise of jurisdiction; and (2) exceeds Congress’s enumerated legislative powers under Article I, Section 8 of the United States Constitution.

Here is DOJ’s Jan. 2011 press release about the charges.  I was never particularly enamored of these arguments, so this isn’t a surprising ruling–particularly since Brehm was a U.S. Army contractor employee working in Afghanistan.

Here is AP coverage via WaPo of a recent AP interview of former PFC Steven Green.  He discusses the tragedy of his experience in Iraq and leadership issues he felt played a part in his offense.  The article also notes that his appeal challenging MEJA is set for oral argument on January 21, 2011.  See our prior coverage here (with links to some briefs) and other briefs here (Gov’t Response) and here (Green’s Reply).  Green’s MEJA argument is summed up in his Reply brief:

Granting the Executive Branch unrestricted discretion to determine which of the two disparate jurisdictional systems [the UCMJ or MEJA] to apply violates the separation of powers doctrine and constitutes an unconstitutional delegation by the Congress to the Executive Branch of the exclusive power and responsibility of Congress to determine what conduct is subject to criminal sanction, fix the sentence for crimes, and set forth the procedures for the adjudication of criminal cases.

Green’s brief also argues that he was not subject to MEJA because he had not been properly discharged, and thus remained subject to the UCMJ only.  He argues that he had not correctly passed through the clearing process for discharge at the time of his indictment.

From the NY Times (and AP) regarding armed civilians subject to the UCMJ (and other private security contractors employed by the US) in Afghanistan:

President Hamid Karzai issued a decree on Tuesday ordering the disbanding of private security forces in Afghanistan by the end of the year.

The decree, however, provides an exception for private security firms working inside of compounds used by international groups, embassies, businesses and nongovernmental organizations.  The Associated Press reported. Such guards “will have to stay inside of the organization’s compound and will have to be registered with the Interior Ministry,” the decree says, according to The A.P.

Even so, the ban would appear to constitute a significant change in the security makeup of the country. There are at least 24,000 private armed guards working for 52 security companies registered with the country, some foreign but most Afghan, who escort convoys of supply trucks across dangerous roads to NATO military bases, protect government and military buildings, and provide protection for political leaders and others.

It would seem the trouble with local companies is spilling over to US companies and civilians in Afghanistan

An interesting, but not totally military justice related, article in the Public Contract Law Journal this month, Richard, MAJ Theodore, Reconsidering the Letter of Marque: Utilizing Private Security Providers Against Piracy, 39 Publ. Contract L. J. 441 (Spring 2010).  The article analyzes the potential use of Letters of Marque in combating the current spate of piracy emanating from Somali.  Interestingly the article in discussing accountability for contractors issued letters of marque does not reference special maritime jurisdiction or other extraterritorial statutes (e.g. MEJA) that might be applicable in this context if letters of marque are issued and tied to contingency operations in support of Congress’ Authorization for the Use of Military Force in 2001.

Here’s a lengthy Virginian-Pilot article about a challenge to MEJA being litigated in the United States District Court for the Eastern District of Virginia.

Interesting MEJA case out of Guam, see DOJ press release here, not for any scintillating facts, but more so for the use of MEJA in Japan. Most civilain crimes in Japan are prosecuted in Japanese courts. This one I am assuming happened on some exclusive US jurisdiction location or there was an extradition problem.

In any event I thought some of our universal jurisdiction naysayers would find the US Attorney’s comments interesting, “This is proof that no one is beyond the law. MEJA allows us to reach out and prosecute U.S. citizens who commit crimes outside the United States.”

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.