Court-Martial Trial Practice Blog
In addition to action under MEJA involving contractors in Iraq, a civilian spouse in Okinawa is headed for a U.S. District Court trial for the death of his stepson on Okinawa.
David Allen, Accused stepdad awaits transfer, Stars &Stripes, 6 March 2009.
The Military Extraterritorial Jurisdiction Act of 2000
The
MEJA was approved by Congress and signed into law by the President on
22 November 2000. Its purpose is to close a jurisdictional gap that has
existed for some time. Civilians accompanying the military overseas are
not subject to military jurisdiction unless during time of war. Further, most federal criminal statutes do not apply outside the
territory of the United States or the special maritime and territorial
jurisdiction of the United States. Therefore, civilians who committed crimes overseas could only be
subjected to prosecution by the nation where the crime occurred. The
problem arises when the foreign country declined to prosecute. The MEJA
now expands the federal jurisdiction of the United States over
civilians accompanying the military overseas.
The
MEJA was approved by Congress and signed into law by the President on
22 November 2000. Its purpose is to close a jurisdictional gap that has
existed for some time. Civilians accompanying the military overseas are
not subject to military jurisdiction unless during time of war. Further, most federal criminal statutes do not apply outside the
territory of the United States or the special maritime and territorial
jurisdiction of the United States. Therefore, civilians who committed crimes overseas could only be
subjected to prosecution by the nation where the crime occurred. The
problem arises when the foreign country declined to prosecute. The MEJA
now expands the federal jurisdiction of the United States over
civilians accompanying the military overseas.
Who
does the Act cover? The Act extends extraterritorial federal
jurisdiction over civilians (except nationals or residents of the host
nation) accompanying the U.S. Armed Forces or employed by the U.S.
Armed Forces. This language "accompanying the force" and "employed by the force"
includes employees of the Department of Defense (including
nonappropriated fund instrumentalities), contractors, subcontractors,
employees of contractors or subcontractors, and any dependent of a
military member or any dependent of one of the above. It also extends federal jurisdiction to military members who have been discharged after commission of a covered offense.
does the Act cover? The Act extends extraterritorial federal
jurisdiction over civilians (except nationals or residents of the host
nation) accompanying the U.S. Armed Forces or employed by the U.S.
Armed Forces. This language "accompanying the force" and "employed by the force"
includes employees of the Department of Defense (including
nonappropriated fund instrumentalities), contractors, subcontractors,
employees of contractors or subcontractors, and any dependent of a
military member or any dependent of one of the above. It also extends federal jurisdiction to military members who have been discharged after commission of a covered offense.
What
does the Act cover? The Act applies to felony level offenses
(punishable by more than one year in prison) that would apply under
federal law if the offense had been committed within the "special
maritime and territorial jurisdiction of the United States." One limitation to prosecution under this Act is if a foreign government, in accordance with jurisdiction recognized by the United States, has prosecuted or is prosecuting the
person. Before the United States can prosecute the person for the same
offense, there must be approval by the United States Attorney General
or Deputy Attorney General. Another limitation has to do with service members. Military members
subject to the UCMJ will not be prosecuted under this Act, unless the
member ceases to be subject to the UCMJ, or the indictment or
information charges that the member committed the offense with one or
more other defendants, at least one of whom is not subject to the UCMJ.
does the Act cover? The Act applies to felony level offenses
(punishable by more than one year in prison) that would apply under
federal law if the offense had been committed within the "special
maritime and territorial jurisdiction of the United States." One limitation to prosecution under this Act is if a foreign government, in accordance with jurisdiction recognized by the United States, has prosecuted or is prosecuting the
person. Before the United States can prosecute the person for the same
offense, there must be approval by the United States Attorney General
or Deputy Attorney General. Another limitation has to do with service members. Military members
subject to the UCMJ will not be prosecuted under this Act, unless the
member ceases to be subject to the UCMJ, or the indictment or
information charges that the member committed the offense with one or
more other defendants, at least one of whom is not subject to the UCMJ.
How
does it work? Basically, a federal magistrate judge will conduct an
initial appearance proceeding, which may be carried out by telephone or
other voice communication means to determine if there is probable cause
to believe a crime was committed and that the person committed it. The federal magistrate judge will also determine the conditions of
release if government counsel does not make a motion seeking pretrial
detention. If pretrial detention is an issue, the federal magistrate judge will
also conduct any detention hearing required under federal law, which at the request of the person may be carried out overseas by telephonic means, and may include any counsel representing the person.
does it work? Basically, a federal magistrate judge will conduct an
initial appearance proceeding, which may be carried out by telephone or
other voice communication means to determine if there is probable cause
to believe a crime was committed and that the person committed it. The federal magistrate judge will also determine the conditions of
release if government counsel does not make a motion seeking pretrial
detention. If pretrial detention is an issue, the federal magistrate judge will
also conduct any detention hearing required under federal law, which at the request of the person may be carried out overseas by telephonic means, and may include any counsel representing the person.
How
will this affect the military? This Act directly involves the military
in two general areas. First, the Act could authorize all DOD law enforcement personnel to
arrest (based upon probable cause of commission of an offense covered
by this Act) any persons to which this Act applies. And second, the Act entitles the person to representation by a judge
advocate at the initial proceeding conducted outside the United States,
if the federal magistrate judge so determines. The Secretary of Defense, after consultation with the Secretary of
State and Attorney General, is responsible for prescribing regulations
governing apprehension, detention, delivery and removal of persons to
the U.S.
will this affect the military? This Act directly involves the military
in two general areas. First, the Act could authorize all DOD law enforcement personnel to
arrest (based upon probable cause of commission of an offense covered
by this Act) any persons to which this Act applies. And second, the Act entitles the person to representation by a judge
advocate at the initial proceeding conducted outside the United States,
if the federal magistrate judge so determines. The Secretary of Defense, after consultation with the Secretary of
State and Attorney General, is responsible for prescribing regulations
governing apprehension, detention, delivery and removal of persons to
the U.S.
Major Tyler J. Harder, ARTICLE: Military Justice Symposium – Volume I: Recent Developments in
Jurisdiction: Is This the Dawn of the Year of Jurisdiction? 2001 Army Law. 2 (April 2001).