[DOCID: f:hr352.110]
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110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-352
======================================================================
MEJA EXPANSION AND ENFORCEMENT ACT OF 2007
_______
September 27, 2007.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 2740]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 2740) to require accountability for contractors and
contract personnel under Federal contracts, and for other
purposes, having considered the same, reports favorably thereon
with an amendment and recommends that the bill as amended do
pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 3
Background and Need for the Legislation.......................... 3
Hearings......................................................... 5
Committee Consideration.......................................... 5
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 5
New Budget Authority and Tax Expenditures........................ 5
Congressional Budget Office Cost Estimate........................ 6
Performance Goals and Objectives................................. 8
Constitutional Authority Statement............................... 8
Advisory on Earmarks............................................. 8
Section-by-Section Analysis...................................... 8
Changes in Existing Law Made by the Bill, as Reported............ 9
The Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``MEJA Expansion and Enforcement Act of
2007''.
SEC. 2. LEGAL STATUS OF CONTRACT PERSONNEL.
(a) Clarification of the Military Extraterritorial Jurisdiction
Act.--
(1) Inclusion of contractors.--Subsection (a) of section 3261
of title 18, United States Code, is amended--
(A) by striking ``or'' at the end of paragraph (1);
(B) by striking the comma at the end of paragraph (2)
and inserting ``; or''; and
(C) by inserting after paragraph (2) the following:
``(3) while employed under a contract (or subcontract at any
tier) awarded by any department or agency of the United States,
where the work under such contract is carried out in an area,
or in close proximity to an area (as designated by the
Department of Defense), where the Armed Forces is conducting a
contingency operation,''.
(2) Definition.--Section 3267 of title 18, United States
Code, is amended by adding at the end the following:
``(5) The term `contingency operation' has the meaning given
such term in section 101(a)(13) of title 10.''.
(b) Department of Justice Inspector General Report.--
(1) Report required.--Not later than 180 days after the date
of the enactment of this Act, the Inspector General of the
Department of Justice shall submit to Congress a report in
accordance with this subsection.
(2) Content of report.--The report under paragraph (1) shall
include--
(A) a description of the status of Department of
Justice investigations of alleged violations of section
3261 of title 18, United States Code, to have been
committed by contract personnel, which shall include--
(i) the number of complaints received by the
Department of Justice;
(ii) the number of investigations into
complaints opened by the Department of Justice;
(iii) the number of criminal cases opened by
the Department of Justice; and
(iv) the number and result of criminal cases
closed by the Department of Justice; and
(B) findings and recommendations about the number of
criminal cases prosecuted by the Department of Justice
involving violations of section 3261 of title 18,
United States Code.
(3) Format of report.--The report under paragraph (1) shall
be submitted in unclassified format, but may contain a
classified annex as appropriate.
SEC. 3. FEDERAL BUREAU OF INVESTIGATION INVESTIGATIVE UNIT FOR
CONTINGENCY OPERATIONS.
(a) Establishment of Theater Investigative Unit.--The Director of the
Federal Bureau of Investigation shall ensure that there are adequate
personnel through the creation of Theater Investigative Units to
investigate allegations of criminal violations of section 3261 of title
18, United States Code, by contract personnel.
(b) Responsibilities of Theater Investigative Unit.--The Theater
Investigative Unit established for a theater of operations shall--
(1) investigate reports that raise reasonable suspicion of
criminal misconduct by contract personnel;
(2) investigate reports of fatalities resulting from the use
of force by contract personnel; and
(3) upon conclusion of an investigation of alleged criminal
misconduct, refer the case to the Attorney General of the
United States for further action, as appropriate in the
discretion of the Attorney General.
(c) Responsibilities of Federal Bureau of Investigation.--
(1) Resources.--The Director of the Federal Bureau of
Investigation shall ensure that each Theater Investigative Unit
has adequate resources and personnel to carry out its
responsibilities.
(2) Notification.--The Director of the Federal Bureau of
Investigation shall notify Congress whenever a Theater
Investigative Unit is established or terminated in accordance
with this section.
(d) Responsibilities of Other Federal Agencies.--An agency operating
in an area, or in close proximity to an area (as designated by the
Department of Defense), where the Armed Forces is conducting a
contingency operation shall cooperate with and support the activities
of the Theater Investigative Unit. Any investigation carried out by the
Inspector General of an agency shall be coordinated with the activities
of the Theater Investigative Unit as appropriate.
SEC. 4. DEFINITIONS.
In this Act:
(1) Covered contract.--The term ``covered contract'' means an
agreement--
(A) that is--
(i) a prime contract awarded by an agency;
(ii) a subcontract at any tier under any
prime contract awarded by an agency; or
(iii) a task order issued under a task or
delivery order contract entered into by an
agency; and
(B) according to which the work under such contract,
subcontract, or task order is carried out in a region
outside the United States in which the Armed Forces are
conducting a contingency operation.
(2) Agency.--The term ``agency'' has the meaning given the
term ``Executive agency'' in section 105 of title 5, United
States Code.
(3) Contingency operation.--The term ``contingency
operation'' has the meaning given the term section 101(13) of
title 10, United States Code.
(4) Contractor.--The term ``contractor'' means an entity
performing a covered contract.
(5) Contract personnel.--The term ``contract personnel''
means persons assigned by a contractor (including
subcontractors at any tier) to perform work under a covered
contract.
SEC. 5. EFFECTIVE DATE.
(a) Applicability.--The provisions of this Act shall apply to all
covered contracts and all covered contract personnel in which the work
under the contract is carried out in an area, or in close proximity to
an area (as designated by the Department of Defense), where the Armed
Forces is conducting a contingency operationon on or after the date of
the enactment of this Act.
(b) Immediate Effectiveness.--The provisions of this Act shall enter
into effect immediately upon the enactment of this Act.
(c) Implementation.--With respect to covered contracts and covered
contract personnel discussed in subsection (a)(1), the Director of the
Federal Bureau of Investigation, and the head of any other agency to
which this Act applies, shall have 90 days after the date of the
enactment of this Act to ensure compliance with the provisions of this
Act.
Purpose and Summary
H.R. 2740, the ``MEJA Expansion and Enforcement Act of
2007,'' would make contractors and contract personnel under
Federal contracts criminally liable for crimes committed
overseas. It would amend the Military Extraterritorial
Jurisdiction Act (``MEJA'')\1\, which criminalizes offenses
committed outside the United States by members of the Armed
Forces and certain Defense Department contractors, but does not
cover all contractors providing services in an overseas
military operation. In addition to closing this gap in current
law, H.R. 2740 would designate the Justice Department to be the
lead agency responsible for investigating allegations of
contractor criminal misconduct.
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\1\18 U.S.C. Sec. 3261 (2006).
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Background and Need for the Legislation
An estimated 180,000 contractors are currently working in
Iraq, and thousands more are working in Afghanistan and
elsewhere.\2\ Unfortunately, the current law does not make all
of these contractors accountable for their criminal conduct.
For example, contractors hired through the Defense Department
are subject to both the Uniform Code of Military Justice and
MEJA, while contractors who commit crimes on Federal property
may be prosecuted under the USA PATRIOT Act. The vast majority
of armed contractors performing security functions overseas,
however, are not subject to any of these laws.
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\2\T. Christian Miller, Private Contractors Outnumber U.S. Troops
in Iraq, Los Angeles Times, July 4, 2007.
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MEJA is also limited jurisdictionally. As originally
enacted in 2000, the Act authorized Federal courts to have
jurisdiction over only civilian employees, contractors, and
subcontractors affiliated with the Defense Department who
commit crimes overseas. In 2005, the Act was amended to expand
the court's jurisdiction to include employees of any other
Federal agency ``supporting the mission of the Department of
Defense overseas.''\3\ In practice, however, many contractors
are not contracted through the Defense Department, but through
other agencies such as USAID or the Department of Interior, and
they do not work directly in support of Defense Department
missions.
---------------------------------------------------------------------------
\3\18 U.S.C. Sec. 3267 (2006).
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Although not affiliated with the Defense Department, these
contractors usually work under the aegis of the United States
government, in pursuit of our Nation's objectives, and on
activities that directly impact the success of United States
military and civilian missions overseas. Nevertheless, these
contractors are not subject to any applicable law imposing
criminal liability for criminal actions that they commit. It is
essential that the Federal Government have a mechanism for
holding such contractors accountable in the event of criminal
misconduct.
At the time of this report, Congressional and
Administration authorities were investigating an incident in
which at least 11 Iraqi civilians were apparently killed by
employees of Blackwater, a contracting firm operating under the
State Department.\4\ The incident enraged the Iraqi government,
which accused the firm of shooting civilians with impunity.
Defense Secretary Robert Gates also expressed ``real concerns''
about lack of oversight of such contractors.\5\
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\4\Peter Spiegel, State Department Intercedes in BlackWater Probe,
Los Angeles Times, Sept. 26, 2007.
\5\Jamie McIntyre, Defense Secretary Sends Team to Review Iraq
Contractors, Cnn.com, Sept. 26, 2007, at http://www.cnn.com/2007/
POLITICS/09/26/contractor.review
---------------------------------------------------------------------------
In addition, the lack of prosecutions--successful or
otherwise--further underscores the inadequacy of current law.
At this time, there are 17 pending cases of detainee abuse,
including abuses that occurred at the Abu Ghraib prison in
Iraq, with the U.S. Attorney's Office in the Eastern District
of Virginia.\6\ In some of these cases, the Army has found
``probable cause'' that a crime has been committed, and
referred the case to the Justice Department for prosecution. In
addition, the press reports that there are hundreds of serious
incident reports voluntarily filed by contractors.\7\ None of
these cases, however, has been prosecuted; and the reason for
failure to do so is not known.
---------------------------------------------------------------------------
\6\See War Profiteering and Other Contractor Crimes Committed
Overseas: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland
Security of the H. Comm. on the Judiciary, 100th Cong. (2007)
(testimony of Erica Razook).
\7\Id.; see also Steve Fainaru, A Chaotic Day on Baghdad's Airport
Road, Wash. Post, Apr. 15, 2007, at A1.
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In fact, since the wars in Iraq and Afghanistan began,
there has been only one successful prosecution of a civilian
contractor for wrongdoing, which involved the conviction of a
CIA contractor for beating a detainee to death,\8\ while, in
comparison, there have been more than four dozen courts-martial
commenced against uniformed personnel with respect to law-of-
war issues.
---------------------------------------------------------------------------
\8\Yochi Dreazen, New Scrutiny for Iraq Contractors--Killing by
Blackwater Worker Poses Dilemma for U.S. Authorities, Wall St. J., May
14, 2007, at A4.
---------------------------------------------------------------------------
H.R. 2740, the ``MEJA Expansion and Enforcement Act of
2007,'' was introduced by Representative David Price (D-NC) on
June 15, 2007. The bill ensures that entities under Federal
contract who commit crimes overseas do not escape
accountability simply because they are not deemed to be
``supporting the mission of the Department of Defense.'' H.R.
2740 also requires the Inspector General of the Justice
Department to submit a report to Congress regarding the
identification and prosecution of alleged contractor abuses
overseas. This requirement is intended to address the Justice
Department's apparent failure to aggressively investigate and
prosecute crimes committed by contractors over which it
currently has jurisdiction. Finally, H.R. 2740 requires the
Federal Bureau of Investigation to establish a Theater
Investigative Unit to investigate reports of criminal
misconduct in regions where contractors are working. This is
intended to underscore the importance of providing resources to
enforce the law.
Hearings
The Committee's Subcommittee on Crime, Terrorism, and
Homeland Security held 1 day of hearings on H.R. 2740, on June
19, 2007. Testimony was received from Erica Razook, Legal
Advisor to the Business and Human Rights Program, Amnesty
International; and Scott Horton, Adjunct Professor of Law,
Columbia University School of Law.
Committee Consideration
On July 24, 2007, the Subcommittee on Crime, Terrorism, and
Homeland Security met in open session and ordered the bill,
H.R. 2740, favorably reported, by voice vote, a quorum being
present. On August 2, 2007, the Committee met in open session
and ordered the bill favorably reported with an amendment, by
voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 2740.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 2740, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 20, 2007.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2740, the MEJA
Expansion and Enforcement Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Peter R. Orszag,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 2740--MEJA Expansion and Enforcement Act of 2007
SUMMARY
The Military Extraterritorial Jurisdiction (MEJA) Expansion
and Enforcement Act of 2007 would direct the Federal Bureau of
Investigation (FBI) to establish special units to investigate
criminal offenses by contract personnel operating in the
vicinity of U.S. armed forces overseas. In addition, the bill
would broaden the coverage of the laws relating to misconduct
by such civilian contract personnel. CBO estimates that
implementing H.R. 2740 would cost $23 million over the 2008-
2012 period, assuming appropriation of the necessary amounts.
Enacting the bill could affect direct spending and revenues,
but we estimate that any such effects would not be significant.
H.R. 2740 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would not affect the budgets of State, local, or tribal
governments.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
The estimated budgetary impact of H.R. 2740 is shown in the
following table. The costs of this legislation fall within
budget function 750 (administration of justice).
By Fiscal Year, in Millions of Dollars
------------------------------------------------------------------------
2008 2009 2010 2011 2012
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level 3 5 5 5 5
Estimated Outlays 3 5 5 5 5
------------------------------------------------------------------------
BASIS OF ESTIMATE
CBO estimates that implementing H.R. 2740 would have
discretionary costs of $23 million over the 2008-2012 period.
For this estimate, CBO assumes that the necessary amounts will
be appropriated near the start of each fiscal year and that
spending will follow historical patterns for similar
activities. In addition, CBO estimates that the bill could have
an insignificant effect on direct spending and revenues.
Spending Subject to Appropriation
H.R. 2740 would direct the FBI to establish Theater
Investigative Units to investigate criminal offenses by
contract personnel operating in the vicinity of U.S. armed
forces overseas. Based on the extent of current military
operations, CBO anticipates that the FBI would likely establish
two or three such units, including one each for Iraq and
Afghanistan. Because relatively few offenses are committed by
contract personnel, we expect that the FBI would need to hire
no more than 30 persons to investigate cases under the bill.
Once fully phased in, CBO estimates that the costs of those
additional employees would be about $5 million annually,
including salaries, benefits, and support costs (including
additional security measures required for war zone operations).
For this estimate, CBO assumes that there will continue to
be a substantial number of U.S. forces operating in Iraq,
Afghanistan, or other locations overseas over the next five
years. If the size of the overseas forces declines
significantly over that period, the cost of implementing H.R.
2740 could decline as well.
Direct Spending and Revenues
Enacting H.R. 2740 could increase Federal revenues and
direct spending as a result of additional criminal penalties
assessed for misconduct by contract personnel. Collections of
criminal penalties are recorded in the budget as revenues,
deposited in the Crime Victims Fund, and later spent. CBO
estimates, however, that any additional revenues and direct
spending that would result from enacting the bill would not be
significant because of the relatively small number of cases
likely to be involved.
INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT
H.R. 2740 contains no intergovernmental or private-sector
mandates as defined in UMRA and would not affect the budgets of
State, local, or tribal governments.
ESTIMATE PREPARED BY:
Federal Costs: Mark Grabowicz (226-2860)
Impact on State, Local, and Tribal Governments: Melissa Merrell
(225-3220)
Impact on the Private Sector: Paige Piper/Bach (226-2940)
ESTIMATE APPROVED BY:
Peter H. Fontaine
Assistant Director for Budget Analysis
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
2740 amends existing law to make contractors and contract
personnel under Federal contract criminally liable for crimes
committed overseas.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clauses 10, 14, 16,
and 18 of the Constitution.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2740 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short title. Section 1 sets forth the short title
of the bill as the ``MEJA Expansion and Enforcement Act of
2007.''
Sec. 2. Legal Status of Contract Personnel. Section 2
provides that all contractor personnel operating in contingency
operations are accountable under the Military Extraterritorial
Jurisdiction Act. This provision extends the Act's jurisdiction
to contractors working in an area, or close proximity to an
area, where the United States is conducting a military
operation. As a result, all private security contractors in
these areas, not just those contracted through or supporting
Defense Department missions, are made accountable under Federal
law. This change in the law responds to the current situation
in Iraq and Afghanistan, where a large number of contractors
are working pursuant to contractual agreements with a variety
of Federal agencies, including the State Department and the
Department of the Interior.
Section 2 also requires the Inspector General of the
Justice Department to submit a report on the Department's
efforts to identify and prosecute alleged contractor abuses in
Iraq and Afghanistan. Pursuant to chapter 212 of title 18 of
the United States Code, the Justice Department and the Federal
courts are responsible for prosecuting and hearing cases,
respectively, under MEJA. In addition, section 3.3.3 of Defense
Instruction 3040.21, ``Contractors Accompanying the Force,''
states that ``only the Department of Justice may prosecute
misconduct under applicable Federal laws.'' Accordingly,
section 2 directs the Justice Department Inspector General to
report to Congress on the number of incidents of alleged
misconduct reported to the Department, the number of
investigations undertaken by the Department, and the number of
criminal cases opened and closed by the Department. The report
must also include findings and recommendations about the number
of criminal cases prosecuted by the Department under MEJA.
Sec. 3. Federal Bureau of Investigation Investigative Unit
for Contingency Operations. Section 3 requires the Federal
Bureau of Investigation (FBI) to establish a Theater
Investigative Unit to investigate reports of criminal
misconduct in theaters in which contractors are working. The
provision gives the FBI Director the discretion to devote
adequate resources to these activities, so the Director has the
flexibility to ensure that ``unneeded resources'' will not be
utilized for this purpose. The section also requires the FBI to
investigate reports of fatalities resulting from the use of
force by contract personnel. In the event of force by self-
defense, the term ``investigate'' is worded broadly enough to
allow an initial examination to confirm self-defense, without
requiring a long, laborious, costly investigation.
The Committee notes that the investigation and prosecution
of criminal misconduct by contractors is integral to
maintaining support among host nation citizens for United
States troops and missions as well as to ensuring the integrity
of such missions. Accordingly, the Committee urges the Bureau
to ensure that it provides sufficient resources and agents for
assertive investigations into allegations of such crimes.
Sec. 4. Definitions. Section 4 defines various terms in the
bill. In particular, the definition of ``contingency
operation'' has the same meaning as the term is given in
section 101(13) of title 10 of the United States Code.
Sec. 5. Effective Date. Section 5 provides that the Act is
applicable to circumstances that take place where the Armed
Forces is conducting a contingency operation, on or after the
date of enactment of the bill.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART II--CRIMINAL PROCEDURE
* * * * * * *
CHAPTER 212--MILITARY EXTRATERRITORIAL JURISDICTION
Sec. 3261. Criminal offenses committed by certain members of the Armed
Forces and by persons employed by or accompanying
the Armed Forces outside the United States
(a) Whoever engages in conduct outside the United States that
would constitute an offense punishable by imprisonment for more
than 1 year if the conduct had been engaged in within the
special maritime and territorial jurisdiction of the United
States--
(1) while employed by or accompanying the Armed
Forces outside the United States; [or]
(2) while a member of the Armed Forces subject to
chapter 47 of title 10 (the Uniform Code of Military
Justice)[,]; or
(3) while employed under a contract (or subcontract
at any tier) awarded by any department or agency of the
United States, where the work under such contract is
carried out in an area, or in close proximity to an
area (as designated by the Department of Defense),
where the Armed Forces is conducting a contingency
operation,
shall be punished as provided for that offense.
* * * * * * *
Sec. 3267. Definitions
As used in this chapter:
(1) * * *
* * * * * * *
(5) The term ``contingency operation'' has the
meaning given such term in section 101(a)(13) of title
10.
* * * * * * *
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