Many violations of Federal criminal law are also violations of the Uniform Code of Military Justice (U.C.M.J.) for which military personnel are subject to court martial (e.g., drug offenses, theft of government property, etc.). The U.C.M.J. also punishes a number of acts which are not otherwise specifically declared to be Federal crimes, but which may become such when committed on a facility over which the United States exercises legislative jurisdiction as a result of the assimilation of state law under the Assimilative Crimes Act. See Criminal Resource Manual at 667.
To avoid conflict over investigative and prosecutive jurisdiction, the Attorney General and the Secretary of Defense executed a memorandum of understanding (MOU) relating to the investigation and prosecution of crimes over which the Department of Justice and Department of Defense have concurrent jurisdiction. The agreement provides generally that all crimes committed on military reservations by individuals subject to the Uniform Code of Military Justice shall be investigated and prosecuted by the military department concerned, with certain exceptions. The agreement permits civil investigation and prosecution in Federal district court in any case when circumstances render such action more appropriate. If questions arise concerning the operation of the agreement, the United States Attorney should contact the section of the Criminal Division having responsibility over the Federal statute allegedly violated. See the Criminal Resource Manual at 669, for the text of the MOU.
The Military Extraterritorial Jurisdiction Act ("MEJA") was enacted on November 22, 2000, and amended on October 28, 2004. MEJA is codified at 18 U.S.C. §§ 3261-67. MEJA subjects certain individuals to federal prosecution for felony offenses committed outside the United States, provided the offense would have been subject to federal prosecution within the special maritime and territorial jurisdiction of the United States.
MEJA permits the exercise of criminal jurisdiction over crimes committed outside the United States if at the time of the offense the offender was (1) employed by the Armed Forces outside the United States; (2) accompanying the Armed Forces outside the United States; or (3) a member of the Armed Forces. No prosecution may be commenced against a member of the Armed Forces, however, unless at the time of prosecution the member is no longer subject to the Uniform Code of Military Justice ("UCMJ") or the member is charged with committing the offense with one or more other defendants not subject to the UCMJ.
Under MEJA, a person "employed by the Armed Forces outside the United States" is defined as (1) a civilian employee, contractor (including a subcontractor at any tier), or employee of a contractor of the Department of Defense; or (2) a civilian employee, contractor (including a subcontractor at any tier), or employee of a contractor of any other federal agency or a provisional authority, but only to the extent that the person's employment "relates to supporting the mission of the Department of Defense overseas."
A person "accompanying the Armed Forces outside the United States" is defined as a dependant or other qualified family member residing overseas with (1) a member of the Armed Forces, (2) a civilian employee of the Department of Defense, (3) a Department of Defense contractor (including a subcontractor at any tier), or (4) an employee of a Department of Defense contractor.
- Statutory Limitations on Prosecution
MEJA does not cover an offense committed by a person who is either a national of the foreign country where the offense occurred or who ordinarily resides in the foreign country where the offense occurred (see 18 U.S.C. § 3267). Prosecution is further prohibited against a member of the Armed Forces unless the offender subsequently ceases to be subject to the UCMJ or is charged with one or more codefendants not subject to the UCMJ (see 18 U.S.C. § 3261(d)).
- National Coordination
Matters arising under MEJA raise issues of national and international concern. Successful prosecution of these matters requires both careful coordination within the Department of Justice and careful coordination between the Department and senior officials in the foreign affairs and military communities. The Department's responsibility for this coordination is assigned to the Assistant Attorney General ("AAG") for the Criminal Division acting through the Division's Human Rights and Special Prosecutions Section ("HRSP").
- Notification Requirements
HRSP Referral to USAO. HRSP is the Department's designated point of contact for federal law enforcement agencies seeking to refer a MEJA offense for federal prosecution. When HRSP receives a MEJA referral from a federal law enforcement agency, HRSP shall (1) make a preliminary determination whether the matter falls within MEJA; (2) ensure that there is sufficient information to gauge whether further investigation and prosecution is appropriate; and (3) make a preliminary decision regarding venue. HRSP shall then promptly notify the USAO with venue over the offense and refer the case to that USAO to determine whether further investigation and prosecution is warranted. All information HRSP has concerning the case shall be forwarded as soon as possible to the appropriate USAO. Where appropriate, HRSP may provide simultaneous notification to other Department components with subject matter jurisdiction over the offense. HRSP shall provide contact information sufficient to allow the USAO to locate contact points in the theater of operations or command which referred the prosecution to the Department of Justice.
USAO Notification to HRSP. Upon receipt of a MEJA referral from HRSP, the USAO shall review the matter promptly and determine whether or not continued investigation or prosecution is warranted. The USAO shall then notify HRSP of (1) whether the USAO intends to decline or accept the matter and (2) whether the USAO seeks the subject of the investigation's overseas arrest, detention, or removal pursuant to the specific procedures provided at 18 U.S.C. §§ 3262-65. The USAO may also request that HRSP provide the USAO with legal advice or, subject to HRSP resources, prosecutorial assistance.
If a USAO receives any MEJA matter independently from the HRSP process described above, the USAO shall promptly notify HRSP. The notification should include the names and biographic information, if known, of the subjects of the investigation and a general overview of the investigation. The notification should also address (1) whether the USAO intends to decline or accept the matter and (2) whether the USAO seeks the subject of the investigation's overseas arrest, detention, or removal pursuant to the specific procedures provided at 18 U.S.C. §§ 3262-65.
Notification to HRSP may be made by email or telephone (or by secured means where necessary), and may utilize the standard Case Notification Form available from HRSP if preferred. If HRSP determines from the notification that there are related matters pending in another district that could be affected by the new matter, HRSP will so inform the notifying USAO and will advise the other district of the new matter.
In the event that detention is contemplated outside of the district handling the prosecution, the prosecuting USAO shall contact the HRSP MEJA point of contact immediately.
HRSP can be contacted via email at MEJA@usdoj.gov and by telephone at (202) 616-5731 during normal office hours. The DOJ command center (202) 514-5000 is available at all other times.
- Matters Involving Uncertain Venue or Issues of National or International Significance
Matters Involving Uncertain Venue. If HRSP receives a MEJA referral from a law enforcement agency in which venue is uncertain, HRSP may open the matter for purposes of further investigation and prosecution. In all such matters, HRSP shall promptly notify the relevant USAO when venue appears proper in a district and again when venue becomes clear.
Matters Involving Issues of National or International Significance. If HRSP receives a MEJA referral involving a legal issue or offense of particular significance to the Department or the federal government, the AAG may consult with the appropriate United States Attorney so that HRSP may pursue the matter in conjunction with that USAO.
- Statutory Approval Requirements
Statutory Approval Requirements. 18 U.S.C. § 3261(b) requires the prior, express approval of the Attorney General or Deputy Attorney General before any prosecution may be commenced against a person under MEJA if a foreign government has prosecuted or is prosecuting the same person for the same conduct.
Approval Procedures. Any USAO or other Department component seeking approval to bring a prosecution under this paragraph shall promptly notify HRSP and submit a written request for approval to HRSP well in advance of the proposed prosecution. The written request must include—
(1) a prosecution memorandum;
(2) a copy of the proposed indictment, information, complaint; and
(3) a detailed explanation of why federal prosecution is needed.
The office seeking approval is encouraged to seek informal advice from HRSP well before submitting a request for approval. The AUSA or other Department attorney submitting the request must allocate sufficient lead time to permit review, revision, discussion, and the scheduling of the grand jury. The information provided should indicate both the proposed date for the prosecutorial action and the proposed date by which the AUSA or other Department attorney needs a response. If HRSP is unable to respond within the time frame suggested, HRSP must immediately notify the USAO or other Department component to determine an acceptable time frame agreed to by both parties. A well-written, carefully organized prosecution memorandum is the greatest guarantee that a request for prosecution will be considered quickly and efficiently.
AAG Concurrence Requirement for Certain Plea Agreements
A USAO or other Department component must seek the concurrence of the AAG before entering into a plea agreement in any MEJA prosecution authorized under paragraph F of this section.
- Department Approval Requirements.
The use of MEJA to prosecute an individual who is not a U.S. citizen or a lawful permanent resident ("LPR") may raise serious legal, practical, and policy concerns. Thus in addition to any statutory requirements set forth in Section F, as a matter of Department policy, prior, express approvalof the United States Attorney or the AAG for the Criminal Division is required before any USAO or other Department component may bring a prosecution against a foreign national who is not an LPR.
Ordinarily, the United States Attorney or the AAG will authorize the prosecution of an individual who is not a U.S. citizen or LPR only if the individual's misconduct—
(1) resulted in the death, physical injury, attempted injury, or threatened injury to a U.S. national, an LPR, or a person employed by or accompanying the Armed Forces outside of the United States;
(2) resulted in actual or attempted fraud upon or financial loss to a U.S. national, an LPR, or a person employed by or accompanying the Armed Forces outside of the United States;
(3) resulted in harm, attempted harm, or threatened harm to the property, programs, or activities of the United States;
(4) adversely affected the readiness, morale, discipline, or health of the Armed Forces or its members;
(5) adversely affected the foreign policy or national security interests of the United States;
(6) was part of a conspiracy for which a U.S. citizen or an LPR is being prosecuted; or
(7) represents a serious crime that, if unaddressed, would result in a miscarriage of justice.
- Exigent Circumstances
If exigent circumstances require a USAO or other Department component to take immediate action in a MEJA matter without complying with the notification, concurrence, or prior approval requirements set forth above, the USAO or other Department component must promptly notify HRSP of any action taken and of the exigent circumstances that precluded adherence to this section. The USAO or other Department component shall also provide HRSP copies of any court filings made. If the AAG determines that further review or action appears appropriate, the AAG and the USAO will confer on how best to proceed.
The Office of Enforcement Operations of the Criminal Division has general supervisory responsibility for Indian country offenses. However, the Child Exploitation and Obscenity Section has responsibility for child abuse offenses, and other Sections, such as Organized Crime and Gang Section and the Human Rights and Special Prosecutions Section, should be consulted on questions involving the substantive elements of offenses within their areas of responsibility. See USAM Chapter 9-4.000 for statutory assignments of the various Sections. The Appellate, General Litigation, and Indian Resources Sections of the Environment and Natural Resources Division have Indian country expertise and should be consulted on questions of tribal rights, treaties, boundaries and related matters.
[updated May 2012]