Criminal jurisdiction over contractors abroad

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1. The offense the Act creates

The Military Extraterritorial Jurisdiction Act of 2000 (MEJA), codified at 18 U.S.C. 3261 to 3267, extends federal criminal jurisdiction to certain people abroad (32 CFR 158.5(f)(2)(ii)(A) and 18 U.S.C. 3261). It reaches conduct outside the United States that would be an offense punishable by more than one year in prison if it had happened inside the United States special maritime and territorial jurisdiction (18 U.S.C. 3261(a)). The conduct is covered if it happens while the person is employed by or accompanying the armed forces outside the United States. It is also covered if the person is a member of the armed forces subject to the Uniform Code of Military Justice (UCMJ).

The Defense rule on contractor support abroad, 32 CFR part 158, states that MEJA extends federal criminal jurisdiction to certain contractor personnel for offenses committed outside United States territory (32 CFR 158.5(f)(2)(ii)(A)). It also states that all American citizen and third country national contractors authorized to accompany the force are subject to potential prosecution under American criminal jurisdiction, including MEJA.

2. Who is employed by or accompanying the force

The Act defines employment by the armed forces abroad in three ways (18 U.S.C. 3267(1)). It covers civilian employees of the Defense Department, including nonappropriated fund instrumentalities, and contractors of the Department, including subcontractors at any tier. It also covers employees of those contractors and subcontractors. The same three groups at any other federal agency or provisional authority are covered to the extent the employment relates to supporting the Department’s mission overseas.

Two further conditions apply to every employment category. The person must be present or residing outside the United States in connection with the employment (18 U.S.C. 3267(1)(B)). The person must also be not a national of or ordinarily resident in the host nation (18 U.S.C. 3267(1)(C)). Accompanying the armed forces means being a dependent of a service member, a Defense civilian employee, or a Defense contractor or contractor employee at any tier (18 U.S.C. 3267(2)). The dependent must reside with that person abroad and must not be a national of or ordinarily resident in the host nation.

3. Limits on prosecution

No prosecution may begin under section 3261 if a foreign government, exercising jurisdiction the United States recognizes, has prosecuted or is prosecuting the person for the same conduct (18 U.S.C. 3261(b)). The exception is approval by the Attorney General or Deputy Attorney General, or a person acting in either role, and that approval may not be delegated. Nothing in the chapter takes away the concurrent jurisdiction of a court-martial, military commission, provost court or other military tribunal over offenders or offenses that statute or the law of war allows them to try (18 U.S.C. 3261(c)).

A service member subject to the UCMJ may not be prosecuted under section 3261 unless one of two conditions is met (18 U.S.C. 3261(d)). Either the member is no longer subject to the UCMJ, or an indictment or information charges the member with committing the offense together with at least one defendant who is not subject to it.

4. Arrest and delivery

The Secretary of Defense may designate and authorize any person serving in a Defense law enforcement position to arrest, outside the United States, a person covered by the Act (18 U.S.C. 3262(a)). The arrest must follow applicable international agreements and requires probable cause to believe the person violated the Act. An arrested person is delivered as soon as practicable to American civilian law enforcement for removal to the United States for judicial proceedings (18 U.S.C. 3262(b)). That does not apply if the person has been charged under the UCMJ for the conduct, or if the sections on foreign delivery and limits on removal apply.

An authorized person may deliver a covered individual to the appropriate authorities of the foreign country where the offense allegedly occurred, if two conditions are met (18 U.S.C. 3263(a)). That country’s authorities must request delivery for trial under their own law, and delivery must be authorized by a treaty or other international agreement to which the United States is a party. The Secretary of Defense, consulting the Secretary of State, determines which foreign officials are appropriate authorities (18 U.S.C. 3263(b)).

5. Removal and first hearings

Unless delivered to a foreign country, an arrested or charged person may not be removed to the United States, or to a foreign country other than the one where the offense allegedly occurred (18 U.S.C. 3264(a)). The limit does not apply in five cases (18 U.S.C. 3264(b)). Three are orders of a federal magistrate judge, for a detention hearing, for detention before trial, or for removal otherwise. A fourth is a preliminary examination the person is entitled to and does not waive. The fifth is a determination by the Secretary of Defense that military necessity requires a waiver, in which case removal is to the nearest adequate American military installation abroad.

For a person not delivered to a foreign country, a federal magistrate judge conducts the initial appearance, which may be held by telephony or other means allowing voice communication (18 U.S.C. 3265(a)(1)). The judge also decides whether there is probable cause that an offense was committed and that the person committed it (18 U.S.C. 3265(a)(2)). If probable cause exists and no motion for detention is made, the judge sets the conditions of release before trial (18 U.S.C. 3265(a)(3)). Any detention hearing is also conducted by a magistrate judge and, at the person’s request, may be held by telephony (18 U.S.C. 3265(b)). If an initial proceeding is held while the person is abroad and the person is entitled to appointed counsel, the judge may appoint a qualified military counsel (18 U.S.C. 3265(c)). That counsel is a judge advocate the Secretary of Defense makes available, who has graduated from an accredited law school or is a bar member, and whom the Judge Advocate General has certified as competent.

6. Regulations, notice and other jurisdiction

After consulting the Secretary of State and the Attorney General, the Secretary of Defense prescribes regulations on apprehension, detention, delivery and removal under the Act (18 U.S.C. 3266(a)). They also cover facilitating initial proceedings, and must be uniform throughout the Department. Regulations must require, to the maximum extent practicable, notice to persons employed by or accompanying the force who are not United States nationals that they may be subject to American criminal jurisdiction (18 U.S.C. 3266(b)(1)). A failure to give that notice does not defeat a court’s jurisdiction or provide a defense (18 U.S.C. 3266(b)(2)). The regulations and amendments take effect no earlier than 90 days after they are reported to the House and Senate Judiciary Committees (18 U.S.C. 3266(c)).

The operational contract support rule lists other bases of jurisdiction. Other American law, such as 18 U.S.C. 7, may also allow prosecution (32 CFR 158.5(f)(2)(ii)(C)). Combatant commanders retain authority to respond to an incident, restore order, investigate and apprehend suspected offenders (32 CFR 158.5(l)(1)(iii)(C)). The Department of Justice may prosecute under federal law, including MEJA and 18 U.S.C. 2441, and contractor personnel are normally also subject to local criminal law (32 CFR 158.5(l)(1)(iv)).

Key terms

MEJA	The Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C. 3261 to 3267.
Covered offense	Conduct abroad punishable by over a year if committed in United States special jurisdiction.
Employed by the armed forces	Defense civilians, contractors and contractor employees at any tier, under set conditions.
Host nation exclusion	Nationals or ordinary residents of the host nation fall outside the definitions.
Qualified military counsel	A judge advocate the judge may appoint for an initial proceeding held abroad.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

How Sentfore supports this

Teams that understand these rules are better placed to work safely abroad. Sentfore works at the delivery end of defense programs in difficult environments, providing secure movement, protective security, facilities and life support. Requirements can be sent through the contact page.