1 Pub. L. No. 106-523,114Stat.2488 (2000) (to be codified at 18 U.S.C. [new ch. 212] §§3261-67) [hereinafter Act]. S. 768 passed the Senate on July 1, 1999, and H.R. 3380 passed the House on July 25, 2000. The Senate agreed to the House amendments per H.R. 3380 on October 26, 2000.

2 18 U.S.C. §3261.

3 Under Article III of the U.S. Constitution, Congress establishes the federal courts, which deal with such matters as cases arising under the Constitution or federal laws and treaties, and disputes with other countries.

4 354 U.S. 1 (1957).

5 See Robinson, O. Everett, Military Jurisdiction over Civilians, 1960 Duke L. J. 366 Google Scholar; Susan, S. Gibson, Lack of Extraterritorial Jurisdiction over Civilians: A New Look at an Old Problem, 148 Mil. L. Rev. 114 (1995).Google Scholar

6 See, e.g., H.R. 808,104th Cong. (1995); S. 74,104th Cong. (1995); H.R. 4531, 103d Cong. (1994); S. 129, 103d Cong. (1993);H.R.5808,102dCong. (1992);S. 182,102dCong. (1991);S. 147,101stCong. (1989); H.R.255, 99^th Cong. (1985); S. 1,94th Cong. (1975) and H.R. 3907, 94th Cong. (1975); S. 1744 & 1745, 92d Cong. (1971); H.R. 18,857, 91st Cong. (1970); H.R. 18,548, 91st Cong. (1970); S. 2007, 90th Cong. (1967); H.R. 226, 90th Cong. (1967); S. 761 & 762, 89th Cong. (1965).

7 United States v. Gatlin, 216 F.3d 207 (2d Cir. 2000).

8 Id. at 209. Judge Cabranes wrote:

Id. But see United States v. Corey, 232 F.3d 1166 (9th Cir. 2000). The court in Corey held that overseas military bases and certain leased housing and property fall within the “special maritime and territorial jurisdiction” of the United States under 18U.S.C.§7(3), thus allowing federal prosecution of civilians who commit federal crimes on military bases overseas. The Fourth Circuit reached a similar conclusion in United States v. Erdos, 474 F.2d 157 (4th Cir. 1973). These cases are now anachronistic: the new legislation extends U.S. jurisdiction to criminal acts overseas, whether on or off base, if those acts would constitute felony offenses had they been committed in the special maritime and territorial jurisdiction of the United States.

9 Status-of-forces agreements are legally binding international agreements between visiting forces and host nations designed to set forth the various privileges and immunities of the visiting forces while they are in the host nations. Typically, they include various exemptions from local criminal and civil jurisdiction, certain customs duties, taxation, and other matters related to the status of the force. Richard, J. Erickson, The Making of Executive Agreements by the United States Department of Defense: An Agenda for Progress, 13 B.U. Int’l L.J. 45, 48 n.9 (1995).Google Scholar

10 Gibson, supra note 5 , at 118 & n. 14 (quoting Article XXXII, Articles of War (1775), stating that” [a]11 suttlers and retainers to a camp, and all persons whatsoever, serving with the continental army in the field, though not [e]nlisted soldiers, are to be subject to the articles, rules, and regulations of the continental army”). The 1806 revision, as well as all successive versions of the Articles of War, contained nearly identical provisions. Winthrop, William, Military Law and Precedents 98 (2d rev. ed. 1920).Google Scholar Even the last version of the Articles of War extended military court-martial jurisdiction over civilians. Article 2(d) of the 1948 Articles of War provided for jurisdiction over [a] 11 retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles.

11 Gibson, supra note 5, at 118 (citing UCMJ Article 2(a) (11)).

12 354 U.S. 1 (1957). This case actually represented the consolidation, for re-argument, of two cases involving the habeas corpus petitions of two military wives who had been court-martialed for murdering their husbands. The Reid v. Covert esse involved Clarice Covert, who was accused of killing her husband, a sergeant in the U.S. Air Force stationed in England. Mrs. Covert was not a member of the armed services at the time. She was a dependent spouse residing with her husband on base. She was tried by a court-martial for murder under Article 118 of the UCMJ. The court-martial asserted jurisdiction over Mrs. Covert under Article 2(11) of the UCMJ and the military tribunal convicted her of murder and sentenced her to life imprisonment. During the course of the appellate process, her counsel petitioned the district court for a writ of habeas corpus on the ground that the Constitution prohibited trying her by military court-martial. The district court issued the writ and ordered her release from custody. The government appealed the case directly to the Supreme Court.

The other case consolidated for re-argument was KinseUa v. Krueger. In that case, Mrs. Dorothy Smith was accused of killing her husband, an army officer, at an army post in Japan where she was living with him. She was tried, while a dependent, for murder by a court-martial, convicted, and sentenced to life imprisonment. Her father, Walter Krueger, filed a petition for habeas corpus on his daughter’s behalf, but his petition was denied by the district court. 137 F.Supp. 806 (1956). While his appeal was pending before the court of appeals, the Supreme Court granted certiorari at the request of the government, 350 U.S. 986 (1956), and consolidated the case with Reid v. Covert.

13 The Court in Reid v. Covert allowed court-martial jurisdiction to continue in times of war, but the United States Court of Military Appeals further limited that jurisdiction to congressionally declared war. United States v. Averette, 19 C.M.A. 363 (1970).

14 Examples include bribery of public officials (18U.S.C. §201 (1994));conspiracy to commit an offense against the United States (18 U.S.C. §371); contempt (18 U.S.C. §402); counterfeiting (18 U.S.C. §471); misuse of public funds (18 U.S.C. §648); extortion (18 U.S.C. §872); kickbacks (18 U.S.C. §874); mailing threats (18 U.S.C. §877); and murder of U.S. nationals abroad (18 U.S.C. §1119).

15 H.R. Rep. No. 106-778, pt. 1, at 5 (2000), 2000 WL 1008725.

16 Military Extraterritorial Jurisdiction Act: Hearing Before the Subcomm. on Crime of the House Comm. on the Judiciary, 106th Cong. (Mar. 30, 2000) [hereinafter House Hearing] (statement of Brig. Gen. James B. Smith, commander of the 18th Fighter Wing, Kadena Air Force Basejapan) [hereinafter Smith Statement], 2000 WL 353067. General

Smith’s frustration echoes that of other overseas military commanders. In 1999 the Office of the Inspector General evaluated these issues involving civilian misconduct for the Department of Defense and reported that many overseas commanders had expressed concerns “over the inadequacy of administrative sanctions available to them.” House Hearing, supra (Statement of Robert E. Reed, Department of Defense, assistant general counsel) [hereinafter Reed Statement], 2000 WL 342525.

17 Smith Statement, supra note 16.

18 Reed Statement, supra note 16 (citing Directorate for Information, Operations, and Reports, U.S. Dep’t of Defense, Worldwide Manpower Distribution by Geographic Area 15–17 (1999) [hereinafter DIOR Report] ).

19 H.R. Rep. NO. 106-778, supra note 15, at 6.

20 Reed Statement, supra note 16.

21 H.R. Rep. No. 106-778, supranote 15, at 6 (citing DIOR Report, supra note 18).

22 Section 3261 of the Act, supra note 1, provides in part:

• (a)

  (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 has been engaged in within the special maritime and territorial jurisdiction of the United States—

  • (1)

    (1) while employed by or accompanying the Armed Forces outside the United States; or

  • (2)

    (2) while a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice),

shall be punished as provided for that offense.

23 The special maritime and territorial jurisdiction of the United States includes “ [a] ny lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof.” 18 U.S.C. §7(3) (1994). Although the Act restricts its application to offenses that would be crimes if they had been committed in the special maritime and territorial jurisdiction of the United States, the legislative history states that acts that would be a federal crime regardless of where they were committed, such as tide 21 offenses, also fall within the scope of section 3261(a). H.R. Rep. No. 106-778, supra note 15, at 14-15. Presumably, this subsection allows for the prosecution of former service members who committed war crimes that were not discovered until after those members left active duty.

24 Act, supra note 1, §3267(1).

25 Id. §3267(2).

26 H.R. Rep. No. 106-778, supra note 15, at 21.

27 The legislative history indicates that this recognition, “in most instances,” would be through a status-of-forces agreement entered into by the United States and the host nation. Id. at 16.

28 Act, supra note 1, §3261.(b). Of course, there would be no constitutional prohibition of a U.S. prosecution following the foreign prosecution, since the double jeopardy clause is inapplicable to successive prosecutions by different sovereigns. However, in conformity with the Petite policy (Petite v. United States, 361 U.S. 529 (1960)) of the Justice Department, see U.S. Attorneys’ Manual (USAM) sec. 9-2.031, at <http://www.usdoj.gov>, a successive prosecution by the United States would be reserved for those rare situations in which U.S. interests remain unvindicated because the foreign prosecution was, in some sense, fundamentally flawed. See House Hearing, supra note 16 (statement of Roger Pauley, director of legislation, Department of Justice), 2000 WL 342528.

29 Extradition Treaty, Oct. 13,1983, U.S.-Italy, Art. VI, TIAS No. 10,837,24 ILM 1527,1528 (1985) (“Extradition shall not be granted when the person sought has been convicted, acquitted or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested.”) This type of issue will not be common. First, it is not clear when, if ever, an extradition treaty would be relevant, particularly where a SOFA, such as the NATO SOFA, contains adequate provisions on foreign criminal jurisdiction. Second, if Italy chose to prosecute a person accompanying, or employed by, the force and the sentence was appropriate, either the attorney general or the deputy attorney general would be unlikely to approve a successive prosecution since the interests of the United States would have been vindicated by the earlier Italian prosecution.

30 This provision provides a means to implement the U.S. obligation under international law to prosecute military members who commit war crimes on active duty that are not discovered until after their release.

31 Act, supra note 1, §3261 (d) (2). According to the House report, this provision is intended to allow the government to try a military member jointly with a nonmilitary co-defendant in a U.S. court when circumstances warrant, providing a prosecutorial option not previously available. H.R. Rep. No. 106-778, supra note 15, at 16.

32 H.R. Rep. No.106-778, supra note 15, at 20.

33 18 U.S.C. §3238 (1994); see United States v. Bowman, 260 U.S. 94 (1922).

34 H.R. Rep. No. 106-778, supra note 15, at 15.

35 Id. at 17.

36 Act, supra note 1, §3262 (b); H.R. Rep. No. 106-778, supra note 15, at 17. Congress envisioned that the military authorities would play a role in determining the appropriateness of pretrial custody, at least prior to the initial proceeding before a U.S. magistrate judge: “The committee notes that in some cases, military authorities may determine that a person arrested need not be held in custody pending the commencement of the initial proceedings required by section 3265.” Id.

37 H.R. Rep. No. 106-778, supra note 15, at 17.

38 Richard Erickson, HQ USAF/JAI, 107 Formal Status of Forces Agreements (SOFAs) with the United States as of 16 February 2001 (on file with authors).

39 See, e.g.. Agreement Regarding the Status of Forces of Parties to the North Atlantic Treaty, Apr. 4, 1949, Art. VH(5), TIAS No. 1964, 34 UNTS 243 [hereinafter NATO SOFA].

40 See List of Mutual Legal Assistance in Criminal Matters (MLATs) and Other Agreements, at <http://travel.state.gov/MLAT.html> (visited Apr. 12, 2001).

41 Even if an adequate SOFA provision exists, removal to the United States may not be seamless. For example, in one case, a service member stationed in Germany committed a crime but fled to a nearby European country before he could be apprehended by either German or U.S. military authorities. Although this country, like Germany, is party to the NATO SOFA, it refused to apply Article VII(5), reasoning that the service member was not stationed there in connection with his military duties. Instead, it argued that return to U.S. authorities was a matter controlled by the terms of the extradition treaty.

42 See, e.g., Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989) (applying the European Convention on the Protection of Human Rights and Fundamental Freedoms to bar extradition to the United States of a German national incarcerated in the United Kingdom to stand trial for the 1985 murder of his girlfriend’s parents in Virginia), at <http://www.echr.coe.int>.

43 Act, supra note 1, §3263(a).

44 H.R. Rep. No. 106-778, supra note 15, at 17-19.

45 Act, supra note 1, §3264(b). Although the Act refers to magistrate judges appointed by statute for a term of years, the statutory reference is intended to include federal judges who are appointed for life under Article III of the Constitution.

46 H.R. Rep. No. 106-778, supra note 15, at 18. Of course, should the United States commence a prosecution before the receiving state has had an opportunity to consider whether it desires to prosecute, relations between the two countries might be affected.

47 As a practical matter, the host-nation sovereign that has indicated no interest in the case may continue to display no interest or concern regarding the video or telephone hearing. However, such a hearing could be considered an intrusion on the sovereignty of the host nation. Such a reaction by host nations might lead to the negotiation of new bilateral agreements or agreements memorialized through diplomatic notes so as to accommodate the host nation’s concerns and the U.S. desire to implement the Act.

48 Act, supra note 1, §3264 (b).

49 H.R. Rep. No. 106-778, supra note 15, at 18.

50 Section 3265 does not address how a federal magistrate judge will be appointed. “The committee expects that the Department of Justice will develop a procedure for initiating proceedings under chapter 212, which will include some means for selecting the Federal judicial district in which such proceedings will be commenced.” Id. at 20. Initial proceedings do not have to be in the district of venue, which is determined by 18 U.S.C. §3238.

51 H.R. Rep. No. 106-778, supra note 15, at 20.

52 The statute is in plain conflict here with the committee report. While section 3266(b) (2) requires notice only to persons who are not nationals of the United States, the report envisions broader application: “The regulations must also require that, to the fullest extent practicable, notice be given to the civilians to whom the statute applies (i.e., the persons described in 3261 (a) (1)) that they are subject to the criminal jurisdiction of the United States under chapter 212.” Id. at 21. Notice is not, of course, required for military members.

53 Id. The House report also reflects the committee’s view that, to the extent possible, the government should refrain from prosecutions until after the regulations are in effect. Id.