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

Army Lawyer, June, 2005 by Glenn R. Schmitt

(19) National Defense Authorization Act for Fiscal Year 2005, S. 2400, 108th Cong. [section] 1081 (2004). Not included in the bill when it was originally introduced, Senator Jeff Sessions of Alabama offered it as an amendment when the Senate debated the bill on the floor. See 150 Cong. Rec. S6535 (2004).

(20) The Conference Report is the vehicle that enacts the compromise bill

(21) National Defense Authorization Act for Fiscal Year 2005, H.R. 4200, 108th Cong. (2004) (enacted, Pub. L. No. 108-375, 118 Stat. 1811).

(22) The text of section 3267(1)(A) of title 18, as amended by the bill now defines "employed by the Armed Forces outside the United States" as:

(A) employed as-(i)

(i) a civilian employee of--(I) the Department of Defense (including a nonappropriated fund instrumentality of the Department); or

(II) any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas;

(ii) a contractor (including a subcontractor at any tier) of--(I) the Department of Defense (including a nonappropriated fund instrumentality of the Department); or

(II) any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas; or

(iii) an employee of a contractor (or subcontractor at any tier) of--(I) the Department of Defense (including a nonappropriated fund instrumentality of the Department); or

(II) any other Federal agency, or any provisional authority, to the extent such employment relates to supporting the mission of the Department of Defense overseas.

18 U.S.C. [section] 3267(1)(A) (LEXIS 2005).

(23) Id.

(24) Id.

(25) There were no hearings on this portion of the mammoth authorization bill, and only a passing reference to this provision in the conference report on the compromise between the differing House and Senate authorization bills. The conference report contains only the following language about MEJA amendment:

   The Senate amendment contained a provision (sec. 1081) that would
   amend the definitional section of the Military Extraterritorial
   Jurisdiction Act of 2000, section 3267 of title 18, United States
   Code (Public Law 106-523), to expand jurisdiction over civilian
   employees and contractor personnel of the United States to include
   personnel not employed by or contracting with the Department of
   Defense whose employment relates to supporting the mission of the
   Department of Defense overseas. The House bill contained no similar
   provision. The House recedes.

H. R. Rep. No. 108-767, National Defense Authorization Act for Fiscal Year 2005 (2004).

(26) Senator Jeff Sessions stated

   This act will deal with what our previous act dealt with--those who
   were directly related to the Department of Defense, either
   contractors or civilian employees. But the abuses in Abu Ghraib
   involved private contractors who may not have in every instance been
   directly associated with the Department of Defense, and as such,
   perhaps those people--or some of them at least--might not be
   prosecutable under this statute. So it highlighted our need to
   clarify and expand the coverage of the act.