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

Army Lawyer, June, 2005 by Glenn R. Schmitt

150 Cong. Rec. S6863 (daily ed. June 16, 2004) (statement of Sen. Sessions).

(27) While first discussing Abu Ghraib, Senator Sessions also made a passing reference to using this provision to prosecute contractor fraud against the United States. As he summarized at the end of his remarks,

   This amendment clarifies existing precedent and leaves no doubt
   whether wrongdoers can be brought to justice. This includes physical
   acts against personnel by contractors. It also includes frauds that
   could be committed against the Department of Defense such as
   overcharging. Fraudulent activities of any kind could be prosecuted
   under this act.

Id.

(28) The only floor statement on this point was made by Sen. Sessions, "This amendment would give the Justice Department authority to prosecute civilian contractors employed not only by the Department of Defense but by any Federal agency that is supporting the American military mission overseas." Id.

(29) See supra note 24.

(30) See supra note 28.

(31) See Emergency Supplemental Appropriations Act for Defense and for the Reconstruction of Iraq and Afghanistan, Pub. L. No. 108-106, 117 Stat. 1209 (2004). That act provides that

   funds appropriated under this heading shall be approportioned only
   to the Coalition Provisional Authority in Iraq (in its capacity as
   an entity of the United States Government.... M. at 117 Star. 1225.
   But in another part of that same act it appropriates money to the
   CPA "For necessary expenses of the Coalition Provisional Authority
   in Iraq, established pursuant to United Nations Security Council
   resolutions including Resolution 1483,....

Id. 117 Star. at 1226. It would seem strange that an entity of the United States Government could have been created by the United Nations and not by Congress. Finally, at section 2208 of that act, Congress defines the term "Coalition Provisional Authority" "to include any successor United States government entity with the same or substantially the same authorities and responsibilities as the Coalition Provisional Authority in Iraq." Id. 117 Stat. at 1231. In section 3001, Congress creates the Office of Inspector General of the CPA. Id. 117 Stat. at 1234. If the CPA was not part of the U.S. Government, how could Congress have created new offices within it?

(32) E-mail from E. Scott Castle, Esq., Deputy General Counsel (Fiscal), Office of DOD General Counsel, to author (15 Dec. 2004) (on file with author) ("The CPA had a dual status, and was simultaneously a U.S. Government entity ... and a discrete entity under international law.... The CPA administered the occupation on behalf of the occupying powers (US and UK)"); E-mail from E. Scott Castle, Esq. to author (7 June 2005) (on file with author) ("'international entity'" ... and 'organization of the U.S. Government' ... more correctly describes our position."). Mr. Castle served as General Counsel of the Coalition Provisional Authority.

(33) See U.S. Office of Management and Budget, Budget of the United States Government--FY 2005, app., at 958-959 (2004) ("For necessary expenses of the Coalition Provisional Authority in Iraq, established pursuant to United Nations Security Council resolutions including Resolution 1483,....). The Pentagon Renovation Office also took this position. See L. Elaine Halchin, The Coalition Provisional Authority (CPA): Origin, Characteristics, and Institutional Authorities, Cong. Research Service 9 (June 6, 2005), available at http://www.fas.org/sgp/crs/mideast/RL32370.pdf#search='halchin june 6' (citing Pentagon Renovation Office, solicitation W914NS-04_R-0001, Jan. 6, 2004, p.2.).