Under a bill passed by the Senate last week, military police could arrest civilian employees or their dependents who are accused of committing crimes while stationed overseas.
The Senate bill, S. 768, would address what lawmakers say is a loophole in federal law that allows civilians stationed overseas with the military to get away with major crimes.
"It is important to the morale of our military forces that enlisted men and women working outside the United States along with civilian personnel do not believe that civilians who may commit a crime against them are beyond criminal prosecution," said Sen. Jeff Sessions, R-Ala.
Under current law, American civilians who commit crimes abroad are subject to the laws of the host country, and must be tried by the host country's criminal system. But Sessions and co-sponsor Sen. Patrick Leahy, D-Vt., argue that host countries are often not interested in prosecuting crimes against Americans, particularly when the crimes are committed by an American against an American.
Sen. Mike DeWine, R-Ohio, another supporter of the bill, pointed to a case in which two children of Defense Department employees stationed in Germany were allegedly sexually molested by their baby-sitter, the son of a U.S. soldier. The German government wouldn't intervene because of the age of the baby-sitter, DeWine said.
S. 768 would give the U.S. authority to arrest and prosecute civilians only if the host country does not do so. If the host country takes no action against a suspect, the Defense Department can arrest the individual and turn him over to civilian law enforcement authorities for prosecution in the United States. S. 768 would follow procedures used for crimes committed at sea. The U.S. attorney's office prosecutes suspects in whichever district court they are brought to in the U.S. by law enforcement authorities.
The Defense Department also has authority to take administrative actions against employees, such as firing them, banishing them from base, suspending them without pay or sending them back to the U.S. But administrative actions are not harsh enough for many crimes, lawmakers say.
"The inadequacy of these remedies to address the criminal activity of civilians accompanying our armed forces overseas results in a lack of deterrence and an inequity due to the harsher sanctions imposed upon military personnel who committed the same crimes as civilians," said Leahy.
The military can court-martial civilians during war, but peace-time court-martials of civilians were found unconstitutional by the Supreme Court in Reid v. Covert (1957). Only when war is declared can civilians be court-martialed.
S. 768 would allow the military to court-martial civilians during "contingency operations" such as those in Kosovo, Somalia, Haiti and Kuwait. In Operation Desert Storm, the Defense Department reported four civilians were involved in crimes, ranging from transporting illegal firearms to larceny. One of the civilians was suspended without pay for 30 days. No action was taken against the other three.
In 1997, the Overseas Jurisdiction Advisory Committee reported to the Secretary of Defense that "legislation is needed to address misconduct accompanying the forces overseas in peacetime settings."
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