[Federal Register: February 2, 2004 (Volume 69, Number 21)]
[Proposed Rules]
[Page 4890-4901]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02fe04-9]
=======================================================================
-----------------------------------------------------------------------
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, Certain Service Members,
and Former Service Members
AGENCY: General Counsel of the Department of Defense.
ACTION: Proposed rule.
-----------------------------------------------------------------------
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 service members.
Section 3266 of MEJA directs that the Secretary of Defense, after
consultation with the Secretary of State and the Attorney General,
shall prescribe regulations, uniform throughout the Department of
Defense, governing the apprehension, detention, delivery, and removal
of persons from overseas locations to the United States for prosecution
in Federal district courts under MEJA, and the facilitation of
proceedings under section 3265 of MEJA. Under the direction of the
General Counsel of the Department of Defense, this part is proposed as
the required regulations. This proposed part implements policies and
procedures, and assigns responsibilities, under MEJA, 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 (as specifically defined in section 3267 of MEJA).
DATES: Consideration will be given to all comments received on or
before April 2, 2004.
ADDRESSES: Submit comments to Robert E. Reed, ODGC (P&HP), Office of
the General Counsel of the Department of Defense, 1600 Defense
Pentagon, Room 3E999, Washington, DC 20301-1600.
FOR FURTHER INFORMATION CONTACT: Mr. Robert E. Reed, ODGC (P&HP), (703)
695-1055, reedr@osdgc.osd.mil.
SUPPLEMENTARY INFORMATION: In accordance with Department of Defense,
Washington Headquarters Services, Administrative Instruction Number
102, ``A DoD issuance or document shall be published in the Federal
Register for public comment if it * * * has a direct or substantial
impact on the public or any significant portion of the public.'' The
Office of Management and Budget (OMB) has provided all government
agencies guidelines for ensuring and maximizing the quality,
objectivity, utility, and integrity of information disseminated to the
public. OMB has directed the agencies to publish a notice in the
Federal Register, by May 1, 2002, that their draft policies complying
with the OMB requirement are available for public view and comment on
their public Web sites. The draft Department of Defense Instruction is
available on the Deputy General Counsel (Personnel and Health Policy),
Office of the General Counsel public Web site located at http://www.defenselink.mil/dodgc/php
.
Executive Order 12866, ``Regulatory Planning and Review''
It has been determined that 32 CFR part 153 is not a significant
regulatory action. This rule does not: (1) Have an annual effect to the
economy of $100 million or more or adversely affect in a material way
the economy; a section of the economy; productivity; competition; jobs,
the environment; public health or safety; or State, local, or tribal
governments or communities; (2) create serious inconsistency or
otherwise interfere with an action taken or planned by another Agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs, or the rights and obligation or recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866.
Public Law 96-354, ``Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
It has been certified that this part is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because it would not,
if promulgated, have a
[[Page 4891]]
significant economic impact on a substantial number of small entities.
This part presents no economic impact and solely involves the rules and
procedures governing the procedures for the Department of Defense to
comply with and implement the Military Extraterritorial Jurisdiction
Act of 2000 (18 U.S.C. 3261 et seq.)
Public Law 96-511, ``Paperwork Reduction Act of 1995'' (44 U.S.C. 3501
et seq.)
It has been certified that this part does not impose any reporting
or record keeping requirements under the Paperwork Reduction Act of
1995.
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been determined that this part does not involve a Federal
Mandate that may result in the expenditure by State, local and tribal
governments, in the aggregate, or by the private sector, of $100
million or more and that such rulemaking will not significantly or
uniquely affect small governments.
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--Acknowledgment of Limited Legal
Representation (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'' (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 in the Department of Defense
(hereafter referred to collectively as ``the DoD Components''). The
term ``Military Services,'' as used in this part, refers to the Army,
the Navy, the Air Force, and the Marine Corps.
(b) 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. possessed disciplinary
jurisdiction over such actions, and was able, therefore, to exercise
concurrent jurisdiction under a Status of Forces Agreement (SOFA) in
places around the world, the Act and this part are intended to address
this jurisdictional gap with respect to criminal sanctions.
(c) 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 (section 3261(c)
of title 18, U.S.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 military members with non-military co-defendants in a
U.S. District Court under section 3261(d) of the Act.
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
nonappropriated 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 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 section 101(d)(1) of title 10,
United States Code.
(c) Armed Forces. The Army, the Navy, the Air Force, the Marine
Corps, and the Coast Guard. See section 101(a)(4) of title 10, United
States Code.
(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 someone under the
Federal Rules of Criminal Procedure. See the analysis to section 3264
of the Report Accompanying the Act.
(f) Civilian Component. A term used in Status of Forces Agreements.
For this part, this term is the equivalent of the definition of persons
``employed by the Armed Forces outside the United States'' in paragraph
(j) of this section and section 3267(a)(1) of the Act.
(g) Dependent. A person for whom a military member, civilian
employee, contractor (or subcontractor at any tier) has legal
responsibility while that
[[Page 4892]]
person is residing outside the United States with or accompanying that
military member, civilian employee, contractor (or subcontractor at any
tier), and while that responsible person is so assigned, employed or
performing 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, except that there
shall be a rebuttable presumption that a command-sponsored individual
is a dependent.
(h) Detention. To be taken into custody by law enforcement
officials and placed under physical restraint.
(i) District. A District Court of the United States.
(j) 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 DoD contractor (including subcontractors at any tier); or
(3) An employee of a DoD contractor (including subcontractors at
any tier); 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.
(k) Federal Magistrate Judge. As used in the Act and this part,
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. 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.
(l) Felony Offense. Conduct that is an offense punishable by
imprisonment for more than one year if committed under U.S. laws for
the special maritime and territorial jurisdiction of the United States.
See section 1 of title 18, United States Code. 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 chapter 13 of title 21, United States Code,
also fall within the scope of section 3261(a) of the Act. See the
analysis to section 3261 of the Report Accompanying the Act.
(m) 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.
(n) Inactive Duty Training. Duty prescribed for Reserves by the
Secretary of the Military Department concerned under section 206 of
title 37, United States Code, or any other provision of law; and
special additional duties authorized for Reserves 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 Reserves in their status as members of the National Guard.
See section 101(d)(7) of title 10, United States Code.
(o) Juvenile. As defined in section 5031 of title 18, U.S.C., this
term is defined as a person who has not attained his or her eighteenth
birthday.
(p) Military Department. The Department of the Army, the Department
of the Navy, and the Department of the Air Force. See section 101(a)(8)
of title 10, United States Code.
(q) National of the United States. As defined in section
1101(a)(43) of title 8, United States Code.
(r) Outside the United States. Those places that are not within the
definition of ``United States'' in paragraph (v) of this section and,
with the exception of subparagraph 7(9) of title 18, United States
Code, those geographical areas and locations that are not within the
Special Maritime and Territorial Jurisdiction of the United States, as
defined in section 7 of title 18, United States Code. The locations
defined in subparagraph 7(9) of title 18, United States Code are to be
considered ``Outside the United States'' for the purposes of this part.
See sections 3261-3267 of title 18, United States Code.
(s) 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.
(t) Staff Judge Advocate. A judge advocate so designated in the
Army, the Air Force, or the Marine Corps; the principal legal advisor
of a command in the Navy and the Coast Guard who is a judge advocate,
regardless of job title. See Rule for Courts-Martial 103(17), Manual
for Courts-Martial, United States (2002 Edition).
(u) 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.
(v) United States. As defined in section 5 of title 18, United
States Code, 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 (GC, DoD)
shall provide 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.
(b) The Inspector General of the Department of Defense (DoDIG)
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 (OIG DOD) 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 section 141(b) of title 10,
U.S.C., ensure the responsibilities described in DoD Directive 5525.7,
``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,\1\
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.
---------------------------------------------------------------------------
\1\ Available from Internet site http://www.dtic.mil/whs/directives
.
---------------------------------------------------------------------------
(c) The Heads of Military Law Enforcement Organizations and
Military
[[Page 4893]]
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 GC, DoD 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 GC, DoD, 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, has agreed to:
(1) Provide preliminary liaison with the Department of Defense,
coordinate initial notifications with other Federal agencies and law
enforcement organizations, make preliminary decisions regarding proper
venue, and arrange for the further assignment of DOJ responsibilities.
(2) Coordinate with the U.S. Attorney's office to arrange 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 be governed ordinarily by the jurisdiction where
a prosecution would occur, such assignment does not determine the
ultimate venue of any prosecution that may be undertaken. Appropriate
venue is determined in accordance with the requirements of section 3238
of title 18, United States Code.
(3) Coordinate the assistance to be provided the Department of
Defense with the U.S. Attorney's office where venue for the case shall
be established; and
(4) Continue to serve as a single 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 GC, DoD, by the last day of February,
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 requirements of section 5035 of
title 18, United States Code.
(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 (d) 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 by [60 days after the effective date of this part].
(3) Ensure that orientation training 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 military members, 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
[[Page 4894]]
command military installations outside the United States.
(ii) Failure to provide notice or orientation training pursuant to
paragraphs (f)(2) and (f)(3) of this section, respectively, 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.
(4) 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 title 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 section 7
of title 18, U.S.C. 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 section 7 of
title 18, U.S.C., 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, 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 United States are subject to
the military law of the United States, as that term is used and
understood in an international SOFA.
(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 offense was 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 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).
(6) Civilians accompanying the Armed Forces. Subject to the
requirements of paragraph (a)(5)(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) Active duty service members.
(B) Members 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) Former service members who are employed by or are accompanying
the Armed Forces outside the United States.
(D) Civilian employees of the Department of Defense (including non-
appropriated fund instrumentalities of the Department of Defense).
(E) DoD contractors (including a subcontractor at any tier).
(F) Employees of a DoD contractor (including a subcontractor at any
tier).
(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) of
this section.
(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 chapter 403 of title 18, United
States Code 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) 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.
(iii) Persons, including citizens of the United States, whose
presence outside the United States at the time the offense is
committed, is not then either as a member of the Armed Forces, a
civilian
[[Page 4895]]
employee of the Armed Forces, or accompanying the Armed Forces.
(A) Persons 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 agency,
organization, business, or entity, not of the Armed Forces and not
thereby employed or accompanying the Armed Forces, 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.
(iv) 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.
(v) Juveniles whose ages are below the minimum ages authorized for
the prosecution of juveniles in U.S. District Court under the
provisions of chapter 403 of title 18, United States Code.
(vi) Persons subject to the UCMJ (see sections 802-803 of title 10,
U.S.C.) are not subject to prosecution under the Act unless, pursuant
to section 3261(d)(2) 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. 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.
(vii) A member of the reserve component who is subject to the UCMJ
at the time the UCMJ offense was committed is not, by virtue of the
termination of a period of active duty or inactive-duty for training,
subject to the UCMJ and is not, by virtue of the termination of a
period of active duty or inactive-duty training, 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.
(viii) 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.
(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. Unless not required by
agreement, investigations shall, to the extent practicable, be
coordinated with appropriate local law enforcement authorities when the
host nation has interposed no objections after becoming aware of the
Act.
(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 DCO's Office of the Staff Judge
Advocate at the location where the offense was committed to review and
transmittal, through the combatant commander, to the DSS/DOJ or the
designated U.S. Attorney representative. The Office of the Staff Judge
Advocate shall also furnish the DSS/DOJ or the designated U.S. Attorney
representative, as appropriate, an affidavit or declaration from the
criminal investigator or other appropriate law enforcement official
that sets for 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 or the designated U.S.
Attorney representative, as appropriate. The criminal investigator
shall also furnish the DSS/DOJ or 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 section 4(d) of
the Inspector General Act of 1978 (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/DOS or 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 (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 important in determining what Federal
district would be responsible for any possible future criminal
proceedings.
(i) Due to the venue provisions of section 3238 of title 18,
U.S.C., the DSS/DOJ or the designated U.S. Attorney representative, as
appropriate, 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
(i.e., the individual's first arrival location in the United States).
However, if the individual is not so arrested in or brought into any
Federal district in the United States, then an indictment or
information may be filed in the district of the person's last known
residence. If no such last known address is known,
[[Page 4896]]
the indictment or information may be filed in the District of Columbia.
(ii) ``Last known residence'' refers to that U.S. location where
the person lived or resided. It is not necessarily the person's legal
domicile.
(iii) Prompt transmittal of venue information to the DSS/DOJ or the
designated U.S. Attorney representative in the United States may prove
helpful in determining whether a particular case may be prosecuted, and
ultimately a pivotal factor in determining whether the host nation or
the U.S. shall exercise its jurisdiction over the matter.
(iv) 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, or 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) of the Act, 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 or 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 arrest 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 sections
801-946 of title 10, U.S.C. and therefore obviates the restrictions of
the Posse Comitatus Act regarding military personnel supporting
civilian law enforcement agencies.
(iii) When the host nation has interposed no objections after
becoming aware of the Act, as referenced in paragraph (d) of appendix A
to this part, arrests in specific cases shall, to the extent
practicable, be first coordinated with appropriate local law
enforcement authorities, unless not required by agreement.
(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 sections 1585a, 4027, 7480,
and 9027 of title 10, United States Code.
(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 sections 1585a, 4027, 7480, and 9027 of title
10, U.S.C. Authorizations issued by military magistrates under the UCMJ
may not be used as a substitute for Federal arrest warrant
requirements.
(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 detained temporarily 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. Section 3142 of
[[Page 4897]]
title 18, United States Code 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 military members 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 comply with the
requirements of section 5035 of title 18, U.S.C. Appointment of a
guardian ad litem may be required under section 5034 of title 18,
U.S.C. 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 (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 it available to the Federal
Magistrate Judge who conducts the initial proceedings under the Act.
See ``Residence information,'' 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 GC,
DoD, as the representative of the Secretary of Defense, of all such
detentions. At the discretion of the GC, DoD, 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.
(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 of the Act;
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) When the host nation has interposed no objections after
becoming aware of the Act, as referenced in paragraph (d) of appendix A
to this part, 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
Investigations, 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
[[Page 4898]]
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 subject the person 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 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 GC, DoD, as
representative for the Secretary of Defense, for review and transmittal
to the Attorney General of the United States. At the discretion of the
GC, DoD, 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)
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
[[Page 4899]]
the participants. See section 3265 of the Act.
(D) The 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 other 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) Military defense counsel. (i) Counsel representation also
includes qualified military counsel, as defined in Sec. 153.3, 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 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 B to 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 acknowledgment
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), in the report accompanying the Act.
(3) Union representation. Law enforcement officials shall comply
with applicable civilian employee rights and entitlements, if any,
regarding collective bargaining unit representation 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.
Only 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 combatant
commander to the GC, DoD, 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.
[[Page 4900]]
(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 section 3142 of title 18, U.S.C. 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 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 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 section 3142(e) of title 18, U.S.C., 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 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
[[Page 4901]]
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.
(f) This part, including its appendices, 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
in this part creates or extends any right, privilege, or benefit to any
person or entity. See United States v. Caceres, 440 U.S. 741 (1979).
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 military members 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 international law, 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, Diplomatic Notes, Mutual Legal
Assistance Treaties, or case-by-case arrangements, agreements, or
understandings with local 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 the host nation's exercise of its criminal
jurisdiction over conduct that is both a violation of the laws of
the host nation and the U.S.
(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 was
involved. Examples of serious misconduct might include:
(1) Frauds against the Government or significant attempted or
actual theft, damage or destruction of Government property;
(2) Death or serious injury to, attempted injury or threatened
injury to, or sexual assault of a national of the United States, or
any other person employed by or accompanying the Armed Forces
outside the United States, as defined in Sec.153.3, or
(3) Conduct that affected adversely or threatened to affect
adversely the readiness, morale, discipline or health of the Armed
Forces or its members.
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 (section
3261, et seq., of title 18, United States Code.); 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 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 someone other than the defense counsel
to be made available for this limited legal representation.)
Dated: January 16, 2004.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 04-1868 Filed 1-30-04; 8:45 am]
BILLING CODE 5001-06-U