Amending the military Extraterritorial Jurisdiction Act of 2000: rushing to close an unforeseen loophole

Army Lawyer, June, 2005 by Glenn R. Schmitt

Introduction

For years, the problem of American civilians committing crimes while accompanying the Armed Forces abroad plagued the U.S. government. In 2000, Congress passed the Military Extraterritorial Jurisdiction Act of 2000 (MEJA) to fix a problem that had gone unsolved for more than forty years. The MEJA extended American federal law to govern criminal acts committed by military dependents and military contractors accompanying the Armed Forces overseas. (2) But little did the drafters of the bill know at the time--the bill contained a gaping loophole that would become all too evident less than four years later.

The Military Extraterritorial Jurisdiction Act of 2000

America's federal criminal jurisdiction generally ends at the nation's borders. When Americans commit crimes abroad, it is the nations in which the crime occurs that determine whether to prosecute the crime. However, when a host nation declines to prosecute, or when there is no functioning government in the place where the act is committed, crimes can go unpunished.

This jurisdictional problem was particularly vexing to the military, which sends its civilian employees and contractors around the world and also allows family members of many service members stationed abroad to accompany them. (3) The military's experience had been that when contractors or dependents committed crimes abroad, the host nation often declined to prosecute the crimes, even if the crimes were serious. (4) This was especially true if the crime was committed only against another American or American property. In areas where there was no functioning local government for periods of time, such as the Balkans, there was no government to even consider bringing such a prosecution.

To address this problem, Congress passed MEJA, which President Bill Clinton signed into law in November of 2000. (5) The law created a new federal crime, punishable in federal court, for acts committed outside the United States that would have been a felony under federal law had those acts been committed on federal land in the United States. (6)

The new criminal provision applies only to two groups of people: those "employed by or accompanying the Armed Forces outside of the United States," and those who are members of the armed forces. (7) The key to the jurisdiction of this statute is the definition of the first phrase. The act defines the phrase persons "employed by ... the Armed Forces," to mean a Department of Defense (DOD) civilian employee, including a nonappropriated fund instrumentality employee, a DOD contractor or subcontractor of any level, or an employee of such contractor or subcontractor. Persons "accompanying the Armed Forces outside the United States" is defined to mean those people who are dependents of and reside with military members, DOD civilian employees or NAF employees, or DOD contractors and subcontractors or their employees outside the United States. In both cases, the definitions use the term "DoD contractors and subcontractors." Consequently, persons or organizations under contract to other parts of the U.S. government were not covered by this Act. (8)

Abu Ghraib

This seemingly reasonable distinction would take on a great deal of consequence in 2004 when reports began to appear in the news media that American military personnel had abused Iraqi prisoners at Abu Ghraib, a prison in Iraq in which Coalition Forces held Iraqi detainees and which had been notorious under the Saddam Hussein regime. (9) As the story began to unfold, the media reported that civilian contractors working to support the American military also may have been involved in these abuses. (10) In early May of 2004, then-U.S. Attorney General John Ashcroft announced that the Department of Justice was considering using MEJA to prosecute these persons. (11) Eventually, however, the media reported that some of these contractors worked under contract for the Central Intelligence Agency (CIA) and other contractors, although directly working to support the military operations in Iraq, were employed under a contract with the Department of the Interior. (12) As press attention began to turn to MEJA, it became clear that the law would not apply to acts by these persons because of the act's limitation to only DOD employees and contractors. As a result, these people could not be prosecuted in American courts for their crimes. (13)

While two bills were introduced before the House Representatives to address this problem no action was taken, perhaps because members of the minority party had sponsored them. (14) Of course, the bills could not have provided a basis for prosecuting the acts that had already come to light, (15) but they would have applied to any future crimes committed by contractors or other government employees. (16) Although Congress did not act on the two introduced bills, (17) both houses of Congress held numerous hearings into the problems at the Abu Ghraib prison. (18) Also, the Senate included a provision similar to that contained in the House bills in the Senate version of the FY 2005 DOD authorization act. (19)