Friday, May 27, 2011

Civilian Extra-Territorial Jurisdiction Act Hearing before Senate Committee

The following report was written by NIMJ summer intern Richard Weiland who attended the Senate Committee on the Judiciary's hearing on CEJA.  You can listen to the hearing or read the transcripts from the Committee's Web site.

On Wednesday, 25 May 2011, the Senate Judiciary Committee, under Chairman Patrick Leahy (D-Vermont), held a hearing entitled “Holding Criminals Accountable: Extending Criminal Jurisdiction to Government Contractors and Employees Abroad.” I had the privilege of observing the hearing on behalf of NIMJ.  The heaing was called to discuss the new Civilian Extraterritorial Jurisdiction Act of 2010, or CEJA, which is an effort on the part of Congress to extend U.S. jurisdiction to contractors overseas who are not employed directly by the Department of Defense. It intends to ensure that all Americans overseas are covered by criminal law, and that they remain accountable for their actions despite currently being in a jurisdictional grey area. The connection of this law to improving national security and foreign relations with host nations was also stressed.

Senators present included Patrick Leahy, (D-VT), Chuck Grassley (R-IA), Sheldon Whitehouse (D-RI), Al Franken (D-MN), and Richard Blumenthal (D-CT). Those testifying in front of the committee included Tara Lee, Partner and Global Co-Chair of Transnational Litigation for DLA Piper LLP (US); Geoffrey Corn, Associate Professor of Law, South Texas College of Law; Michael Edney, Of Counsel for Gibson, Dunn & Crutcher; and the Honorable Lanny A. Breuer, Assistant Attorney General, Criminal Division of the U.S. Department of Justice.

Beginning with Chairman Leahy’s statement, the overwhelming consensus was that CEJA would be beneficial for providing judicial continuity overseas and would do much to cut down on the feeling of a “culture of impunity” by those in the United States, and in host nations, as long as the bill is specifically tailored not to go against the current authorities of the intelligence community.

Professor Corn explained the history of CEJA and similar legislation. Previously, the only legislation covering civilians supporting the military overseas was the Uniform Code of Military Justice. U.S. v Averette (1970) significantly changed its applicability, as the Court of Military Appeals decided that the UCMJ only applied to civilians in times of formally declared war. MEJA—the Military Extraterritorial Jurisdiction Act of 2000—began to cover this gap, but according to Mr. Breuer, “MEJA leaves significant gaps in our enforcement capability.” Congress attempted to address this by resurrecting UCMJ applicability to contractors in 2006 by including “contingency operations,” but Professor Corn asserts that this “raises significant constitutional questions.” As a result, no law exists that clearly extends jurisdiction to contractors overseas. CEJA, much like MEJA, is designed to extend US jurisdiction to contractors overseas, but unlike MEJA, CEJA covers contractors and related employees working for groups other than the DOD. Without CEJA, this gap in jurisdiction will remain.

This gap has created problems due to the increasing reliance upon civilian contractors in the field. All contractors overseas who are not working for DOD are currently under the jurisdiction of the host nation, but according to Mr. Edney, the U.S. “customarily seeks immunity for all its employees and contractors” from that jurisdiction, citing non-existent mechanisms of accountability. Ms. Lee explained that as a result, that contractors exist in a sort of grey area, making “the obligation to provide [the contracting community] with clarity…especially strong.” But she holds that CEJA “has the potential to provide more certainty regarding the application of U.S. criminal law to overseas contractors,” closing the gap. Professor Corn held similar views, stressing that “CEJA will contribute to the deterrence of contractor misconduct by placing contractors on clear notice that such misconduct is subject to federal criminal sanction.” He also stated that this clarity “will reduce the risk that the credibility of U.S. operations will be compromised by a perception of impunity for contractor misconduct.”

Passing CEJA would also save resources. According to Mr. Breuer, as “cases that would otherwise be straightforward can turn into complex investigations focusing not just on the underlying criminal conduct, but also on the scope of the defendant’s employment, his or her specific work duties, and other jurisdiction-related facts,” especially if classified information is needed to establish such facts. Expanding jurisdiction through CEJA would make such cases straightforward. In this respect, Professor Corn brought up the idea of detailing Judge Advocates as Special Assistant US Attorneys in questioning, which would save more resources, and allow the original investigator and prosecutor to follow the case from start to finish. This would bridge the gap created by the process of having such cases—as seen in MEJA—investigated by the military overseas and then actually litigated by US Attorneys stateside.

Mr. Edney urged caution in passing this law “to protect ongoing and future intelligence and other national security operations,” a position supported by Senators Blumenthal and Whitehouse. Traditionally, intelligence officers commit what would be considered crimes in sanctioned actions, as the business of intelligence is to obtain unauthorized access to secret information. Mr. Edney’s point is that CEJA must “explicitly exempt national security and intelligence activities from the contemplated expansion of criminal law abroad.” However, all parties involved agreed that intelligence officers should be held accountable for unsanctioned acts, which would be crimes. So the final consensus was that if CEJA preserved the authorizations already in place, this would help clarify their boundaries, much like the contractor community.

In short, passing CEJA would help to close the gap in jurisdiction over civilians left by MEJA, a gap which is becoming increasingly important as greater numbers of contractors employed by groups other than DOD are used in military and other operations overseas. If successful, it would bring US law to all persons involved in US operations overseas and help to squash any perceptions of impunity at home and abroad.