Extraterritorial Jurisdiction And Its Effect On The Administration of Military Criminal Justice Overseas

• Author: Captain Jan Horbaly and Miles J. Mullin
• Pages: 01

TABLE OF CONTENTS

1. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3FEDERAL CRIMINAL LAW REFORMS,, , , . , , . , . , , 7 A. The Growth of the Federal Ciininal Law ........ 7 B. Past Efforts at Reform ........................... 8

   C.Nationh1 Commission on Reform of the Federal Penal Law ............................... 9

   D. Extraterritorial Jurisdiction Proposed ............ 11111. THE NEED FOR EXTRATERRITORIAL

   APPLICATION OF THE FEDERALPENAL CODE .................................... 12 A. Espnnsion of American Interests Abroad ........ 12

   *This anlcle IS an adaptation of B paper submitted m perfla1 fulfillment 01 the re. quiremints for the LL M,degree at the Umveraify of Virglnia School of Law. The opinions and conclurons presented herein are those of the euthors and da not necessarily represent the views 01 The Judge Advocate Generaps School 01 any other ~wernmental agency*VAGC. U.S Axmy A B , 1966. J D , 1969, Case Western Reaerce Um\~erslty. Member of the Bare of Ohio. the U S Court of hllliiais Revmu. the US Court of Miiitary Appeala. and the U.S Supreme Court.***Member ofthe Texas Bsr B A , 1967 Texas Chnstian University, J.D ,1910. SL Mary's University School of Law Member af the Bars of Texaa, the U S Court 01 Military Appeals and the U S Supreme Court. Mr Mullin IS currmtly associated with the law firm of Judin. Ellis. Gonzales & Banon m McAllen. Texas.

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   EXTRATERRITORIAL JERISDICTION ASD

   T H E APPLICATION OF 0 CALLAHAN OVERSEAS 52

   ......................A . The O'Callahan Decis~onB . O'Callahan Denied Applicatmn Ouerseas

   C . OCallahan Denied Applieatmn

   Ouerseas by Federal Courts .................... 61D . O'Callahan's Application Ouerseas L'nder

   Extraterntorrol Jurisdiction . . . . . . . . . . . . . . . . . . . 68 E. Amendrng Section 204/g/ lo Deny

   O'Callahan Appltcation Ouerseos . . . . . . . . . . . . . 73

   EXTRATERRITORIAL JCRISDICTIOF AND

   CRIMINAL INVESTIGATIONS BY THE MILITARY .............................. 77A . Generally .................................. 77B . Reform Provisions and the Innvestrgation of

   Offenses Committed Overseas . . . . . . . . . . . .

   by Mhtary Courts ........................... j7

   C . The Military and the Civd Laus . . . . . . . . . . . . . . 82

   D . Extraterrrtorrol Application of the

   Posse Comrtatus Act .......................... 86E . An Extraterritorral Znuestigation

   Amendment to the Posse Comitatus Act . . . . .

   CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

   B

   . The Lmited Reach of the Federal Laic . . . . . . .

   C . Extraterntonal Stotutes . . . . . . . . . .

   D Supreme Court Deewons Limiting Extraterritorial

   JurrsdLctLon Under the UCMJ . . . . . . . . . . . . . . . . . 22PROPOSALS FOR REFORM . . . . . . . . . . . . . . . . 34A . Natmnal Commission Proposal . . . . . . . . . . . . . . 35B . Department of Justice Proposal . . . . . . . . . . . . . . 31C . Senate Judicrary StQff Proposal . . . . . . . . . . . . . . 39D . Reform Act of 1975 Proposal . . . . . . . . . . . . . . . . . 40THE LEGALITY OF EXTRATERRITORIAL

   JURISDICTION ............................. 45A . The Constitutronol Basis 45 B . The Internattonal Low Bas~s . . . . . . . . . . . . . . . . 48

   IV .

   V .

   VI .

   VI1

   VI11

1. INTRODUCTION

   The Congress of the United States currently is engaged in the most comprehensive and thorougheffort ever undertaken tarevise, reorganize and recodify the nation's federal criminal laws. The revhion began in 1966 when Congress created the National Cam-mission on Reform of the Federal Penal Laws to review existing federal criminal statutes and to recommend legislation for improving the federal criminal justice system. The Commission submitted its report and recommendations to Congress in 1971 and soon thereafter Congress commenced hearings on federal criminal law reform.

   In rewriting the country's criminal statutes, Congress has con. sidered the recommendations of the Cornmission, as well as hun. dreds of additional proposals for change submitted by interested parties throughout the country. Now, after years of study and many months of congressional hearings, a new federal criminal code has been drafted and is being considered by members of Congress in the form of legislation entitled the "Criminal Justice Reform Act of 1975."1

   The proposed Act stands as a detailed compendium of criminal law reform measures and represents an endeavor on the part of Congress to establish a complete federal criminal code within title 18 of the United States Code. In addition, the recommended legisla.

   x S. 1.94th Cow, lit Sese (1975Xhereinafter cited as the Cnminai Juahce Reform Act of 1974 The proposed Crimmal Justice Reform Act of 1976 was intraduced m the Senate by Senators MeClelian. Hruska. Bayh. Eastiand. Fang, Griffin, Mansfield, Mosa. Scott. Taft and Tower on January 15, 1975 and referred to the Senate Committee on the Judmarv The same Act was Intraduced ~n the Hnuar nf

   CdeReform Act of 1973 introduced intheSenareon Janusry 4.1973 as S.1. See S. 1 93d C o w , 1st Sees (1973)

   tion also contains many novel provisions andinnovativereforms.' One of theexciting new changesindudedin therevisedcodeis B set

   of provisions providing for extraterritorial application of the federal criminal laws.3 Under the new extraterritorial provisions. the jurisdiction of the federal Judiciary will be expanded to permit federal courts to trycasesinvolving Americancitizens who commit criminal offenses in foreign countries.

   The need for applying federal criminal laws overseas has become increasingly apparent m recent years, a6 the number of American citizens living and travelling abroad has increased significantly3 and as the number of criminal offenses involving Americans abroad has grown dramatically. Unfortunately, current Cnited States Code provisions, as a general rule, do not permit federal courts to exercise jurisdiction over Americans living and travelling outside of the United States. Because the federal courts usually do not have jurisdiction over Americans in foreign countries, most federal crimes committed by American citizens overseas cannotbe prosecuted in the United States To correct this anomaly, special provisions providing for the application of federal laws outside the

   119iOi See d.0 Heoringe on the Report oi the ,Vatatronoi Commission on Reform o i fhe fedeiol Ciiminol Code Before the Svbeomrn on Criminal Lou ondPiocedures o i the Senate Comm. on the dudrcrarv 92d Cane 1st Sess ut I at 53 (19711

   territorial limits of the United States are included in the proposals to reform the federal criminal code.

   Enactment of the proposed provisions providing for application of the federal criminal code owmeas will greatly improve the administration ofjustice within the federalsystem. Oneadvantage to the new legislation is that serious crimes committed by American citizens outside the territorial limits of the United States will be subject to prosecution in federal district c0urts.j A further advan. tage is that Americans tried in federal courts for committingcrimes overseas will be entitled to constitutional protections and safeguards which would be denied them ifthey were tried in foreign courts.6 In addition, the proposed provisions will eliminate inconsistencies in the application of the federal criminal laws overseas' and should do away with many of the difficulties experienced by American iudues in determinine which federal criminal statutes

   . I

   Congress intended to be applied outside United States.?

   the territorial limits of the

   While there are numerous advantages to the extratenitorid legislation proposed, there also are mme disadvantages. One major disadvantage in the proposed legislation is its failure to provide means for enforcement of federal criminal laws beyond the boundaries of the United States.nAfurtherdisadvantage, and onenot yet discussed in the public hearings held an the new federal criminal code, concerns the impact of the extraterritorial application of

   3 Note. Ezfrofm~toiioi Jurisdictran . Ciiminal Law . Eztraterritonal Reach of Proposed Fedrrai Criminal Code. Gowmment Empfoye~s

   Abroad. Conduct En-dangering Certain Interests of the L'n~lrdStafrs Section208 of fhePrnpmid.%w Federal Criminal Cade,Noiionol Commission onRefoiormofFedrrol Ciiminal Laws, Fmal Report, 13 HlRI INTL L J 346, 355 I19721 [hereinafter nted as Ex-trotericiarial Junsdiecmnl See Reid v Covert. 354 US 1. 6-14 119671

   D Ertroteiiitnrioi Jurisdiction supra notes, at 362

   8 U'ORKIUGPAPERS suma note 7, at 71

   B Extraleirrfonaf Juiadicfian, wpra note 5. at 356.59 Arelated dlaadvantage con. cams the existence of extradition treatres and the failure ofthe Iegrslatmn to deal with enstmg treaty pmnsmns which will hinder succeasfvl enforcement af federal law inforeign countnee Forsd~scussionafthiaproblema.eH~.iings,svpronate2. pf. X. at 1419.26,

   federal law on the operation of the military criminal justice system over seas:^

   Most certainly. enactment of the proposed legislation providing for extraterritorial jurisdiction will have a significant impact on the administration of military justice outside the United States First, the return of substantial numbers of American soldiers assigned overseas to the United States for prosecution of nonser-vice connected offenses willcreatemajor logistical problemsfor the military system. Secondly, the necessity of having to process re-quests from civilian authorities for assistance in the investigation of civilian and nansemice connected offenses will place substantial burdens on the armedservices, in addition to raising questions concerning the use of military personnel to enforce civil laws over.seas.

   Because of the importance of maintaining discipline among American soldiers assigned outside of the Enited States. and in view of the reduction in the number of armed forces personnel stationed abroad. any limitation on the exercise af military jurisdiction overseas and any use of military personnel by...