Criminal Jurisdiction Over Civilians Employed by or Accompanying the Armed Forces Outside the United States, Service Members, and Former Service Members, 8946-8958 [06-1605]

Agencies

• Office of the Secretary
• DEPARTMENT OF DEFENSE

[Federal Register Volume 71, Number 35 (Wednesday, February 22, 2006)]
[Rules and Regulations]
[Pages 8946-8958]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1605]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 153

[0790-AH73]


Criminal Jurisdiction Over Civilians Employed by or Accompanying 
the Armed Forces Outside the United States, Service Members, and Former 
Service Members

AGENCY: Department of Defense, General Counsel of the Department of 
Defense.

ACTION: Final rule.

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SUMMARY: Chapter 212 of title 18, United States Code (Military 
Extraterritorial Jurisdiction Act of 2000 (MEJA)) establishes Federal 
criminal jurisdiction over whoever engages in conduct outside the 
United States that would constitute an offense punishable by 
imprisonment for more than one year (i.e., a felony offense) while 
employed by or accompanying the Armed Forces outside the United States, 
certain members of the Armed Forces subject to the Uniform Code of 
Military Justice (Chapter 47 of title 10, United States Code), and 
former members of the Armed Forces. This rule is established to 
correspond with the Department of Defense Instruction 5525.11, 
``Criminal Jurisdiction Over Civilians Employed By or Accompanying the 
Armed Forces Outside the United States, Certain Service Members, and 
Former Service Members,'' that the Deputy Secretary of Defense approved 
on March 3, 2005.

DATES: Effective: March 3, 2005.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Reed, 703-695-1055.

SUPPLEMENTARY INFORMATION: On February 2, 2004 (69 FR 4890) the 
Department of Defense published a proposed rule. Several comments were 
received, reviewed, and accepted to better clarify the provisions of 
the proposed rule and to add appropriate definitions of terms used. 
Other comments addressed concerns raised and considered during the 
legislative process and were not adopted as additional modifications 
for the Final Rule.
    Pursuant to the comment opportunity afforded the public by the 
Federal Register publication of the proposed rule on February 2, 2004, 
public comments recommended that international agreements involving 
extradition procedures be considered, ensure that potential conflict 
with the Posse Comitatus Act and double jeopardy be eliminated, that 
military defense counsel be clearly designated to serve as qualified 
defense counsel for limited representation purposes, and that juveniles 
be include in the discussions of persons subject to the Military 
Extraterritorial Jurisdiction Act (``the Act''). Each of these concerns 
were specifically considered and addressed when the Act was 
legislatively developed and further changes to the Proposed Rule were 
considered unnecessary. A recommendation that the term ``Designated 
Commanding Officer (DCO)'' be defined was approved and added to the 
definitions in the Final Rule. Another recommendation was approved to 
clarify the discussion of the amenability of the Act to Reserve 
component personnel and proper use of ``reservists,'' as well as 
clarify that annual reports due in February were to encompass 
information for the immediately preceding calendar year. A 
recommendation was approved to clarify that ``command sponsorship'' was 
not to be used to consider whether a person was a dependent for 
purposes of the Act. It was determined that the Proposed Rules' 
discussion of union representation was sufficient and a recommendation 
to expand the discussion of a union's statutory right to

[[Page 8947]]

bargain over any provision was not approved. However, the provision was 
modified to reflect collective bargaining unit representation under 
Chapter 71 of title 5, United States Code. A recommendation was adopted 
to clarify that it was not required under the Act that an individual's 
misconduct violate both the host nation law and that of the United 
States under the Act. Illustrative examples contained in the Proposed 
Rule were deleted from the Final Rule as being misleading and 
potentially causing confusion. A recommendation that the regulations 
specify that a Combatant Commander's delegation authority extends to 
specific subordinates was not adopted, but is left to the best judgment 
and discretion of the Combatant Commander.

Executive Order 12866, ``Regulatory Planning and Review''

    This rule regulatory action is a significant regulatory action, as 
defined by Executive Order 12866 and has been reviewed by OMB and 
approved for publication.

Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))

    This regulatory action will not have a significant adverse impact 
on a substantial number of small entities.

Unfunded Mandates Act of 1995 (Sec. 202, Pub. L. 104-4)

    This regulatory action does not contain a Federal mandate that will 
result in the expenditure by State, local, and tribal governments, in 
aggregate, or by the private sector of $100 million or more in any 1 
year. This rule making will not significantly or uniquely affect small 
governments.

Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)

    This regulatory action will not impose any additional reporting or 
recordkeeping requirements under the Paperwork Reduction Act.

Federalism (Executive Order 13132)

    This regulatory action does not have Federalism implications, as 
set forth in Executive Order 13132. It will not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)

    It has been certified that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. This rule establishes procedures for coordinating 
criminal jurisdiction matters between the Department of Defense, 
Justice, and State that involve crimes committed by civilians employed 
by or accompanying the Armed Forces overseas.

List of Subjects in 32 CFR Part 153

    Courts, Intergovernmental relations, Military personnel.


0
Accordingly, 32 CFR part 153 is revised to read as follows:

PART 153--CRIMINAL JURISDICTION OVER CIVILIANS EMPLOYED BY OR 
ACCOMPANYING THE ARMED FORCES OUTSIDE THE UNITED STATES, CERTAIN 
SERVICE MEMBERS, AND FORMER SERVICE MEMBERS

Sec.
153.1 Purpose.
153.2 Applicability and scope.
153.3 Definitions.
153.4 Responsibilities.
153.5 Procedures.

    Authority: 10 U.S.C. 301.


Sec.  153.1  Purpose.

    This part:
    (a) Implements policies and procedures, and assigns 
responsibilities under the Military Extraterritorial Jurisdiction Act 
of 2000, as amended by section 1088 of the ``Ronald W. Reagan National 
Defense Authorization Act for Fiscal Year 2005,'' October 28, 2004 
(hereinafter referred to as ``the Act'') for exercising 
extraterritorial criminal jurisdiction over certain military personnel, 
former service members of the United States Armed Forces, and over 
civilians employed by or accompanying the Armed Forces outside the 
United States (U.S.).
    (b) Implements section 3266 of the Act.


Sec.  153.2  Applicability and scope.

    (a) This part applies to the Office of the Secretary of Defense, 
the Military Departments (including the Coast Guard by agreement with 
the Department of Homeland Security when it is not operating as a 
Service of the Department of the Navy), the Chairman of the Joint 
Chiefs of Staff, the Combatant Commands, the Inspector General of the 
Department of Defense, the Defense Agencies, the DoD Field Activities, 
and all other organizational entities within the Department of Defense 
(hereafter referred to collectively as ``the DoD Components''). The 
term ``Military Services,'' as used herein, refers to the Army, the 
Navy, the Air Force, and the Marine Corps.
    (b) Coast Guard. The Coast Guard ordinarily operates as a separate 
branch of the Armed Forces in the Department of Homeland Security 
(DHS). However, upon Presidential Directive, the Coast Guard operates 
as a Service within the Department of the Navy and becomes part of the 
Department of Defense. By agreement with the Secretary of the 
Department of Homeland Security, when the Coast Guard is operating as a 
separate Service within the DHS, this part shall apply to the Coast 
Guard to the extent permitted by the Act. Whether a provision of this 
Instruction applies to a Coast Guard case is determined by whether the 
Coast Guard is operating as a Service in the DHS or as a Service within 
the Department of the Navy.
    (c) While some Federal criminal statutes are expressly or 
implicitly extraterritorial, many acts described therein are criminal 
only if they are committed within ``the special maritime and 
territorial jurisdiction of the United States'' or if they affect 
interstate or foreign commerce. Therefore, in most instances, Federal 
criminal jurisdiction ends at the nation's borders. State criminal 
jurisdiction, likewise, normally ends at the boundaries of each State. 
Because of these limitations, acts committed by military personnel, 
former service members, and civilians employed by or accompanying the 
Armed Forces in foreign countries, which would be crimes if committed 
in the U.S., often do not violate either Federal or State criminal law. 
Similarly, civilians are generally not subject to prosecution under the 
Uniform Code of Military Justice (UCMJ), unless Congress had declared a 
``time of war'' when the acts were committed. As a result, these acts 
are crimes, and therefore criminally punishable, only under the law of 
the foreign country in which they occurred. See section 2 of Report 
Accompanying the Act (Report to Accompany H.R. 3380, House of 
Representatives Report 106-778, July 20, 2000 hereafter referred to as 
``the Report Accompanying the Act''). While the U.S. could impose 
administrative discipline for such actions, the Act and this part are 
intended to address the jurisdictional gap with respect to criminal 
sanctions.
    (d) Nothing in this part may be construed to deprive a court-
martial, military commission, provost court, or other military tribunal 
of concurrent jurisdiction with respect to offenders or offenses that 
by statute or the law of war may be tried by court-martial, military 
commission, provost court, or other military tribunal (Section 3261(c) 
of title

[[Page 8948]]

18). In some cases, conduct that violates section 3261(a) of the Act 
may also violate the UCMJ, or the law of war generally. Therefore, for 
military personnel, military authorities would have concurrent 
jurisdiction with a U.S. District Court to try the offense. The Act was 
not intended to divest the military of jurisdiction and recognizes the 
predominant interest of the military in disciplining its service 
members, while still allowing for the prosecution of members of the 
Armed Forces with non-military co-defendants in a U.S. District Court 
under section 3261(d) of the Act.
    (e) This part, including its enclosures, is intended exclusively 
for the guidance of military personnel and civilian employees of the 
Department of Defense, and of the United States Coast Guard by 
agreement with the Department of Homeland Security. Nothing contained 
herein creates or extends any right, privilege, or benefit to any 
person or entity. See United States v. Caceres, 440 U.S. 741 (1979).


Sec.  153.3  Definitions

    Accompanying the Armed Forces Outside the United States. As defined 
in section 3267 of the Act, the dependent of:
    (1) A member of the Armed Forces; or
    (2) A civilian employee of the Department of Defense (including a 
non-appropriated fund instrumentality of the Department); or
    (3) A DoD contractor (including a subcontractor at any tier); or
    (4) An employee of a DoD contractor (including a subcontractor at 
any tier); and
    (5) Residing with such member, civilian employee, contractor, or 
contractor employee outside the United States; and
    (6) Not a national of or ordinarily resident in the host nation.
    Active Duty. Full-time duty in the active military service of the 
United States. It includes full-time training duty, annual training 
duty, and attendance, while in the active military service, at a school 
designated as a service school by law or by the Secretary of the 
Military Department concerned. See section 101(d)(1) of title 10, 
United States Code.
    Armed Forces. The Army, the Navy, the Air Force, the Marine Corps, 
and the Coast Guard. See section 101(a)(4) of title 10, United States 
Code.
    Arrest. To be taken into physical custody by law enforcement 
officials.
    Charged. As used in the Act and this part, this term is defined as 
an indictment or the filing of information against a person under the 
Federal Rules of Criminal Procedure. See the analysis to Section 3264 
of the Report Accompanying the Act.
    Civilian Component. A person or persons employed by the Armed 
Forces outside the United States, as defined in this section and 
section 3267(a)(1), as amended, of the Act. A term used in Status of 
Forces Agreements.
    Dependent. A person for whom a member of the Armed Forces, civilian 
employee, contractor (or subcontractor at any tier) has legal 
responsibility while that person is residing outside the United States 
with or accompanying that member of the Armed Forces, civilian 
employee, contractor (or subcontractor at any tier), and while that 
responsible person is so assigned, employed or obligated to perform a 
contractual obligation to the Department of Defense. For purposes of 
this part, a person's ``command sponsorship'' status while outside the 
United States is not to be considered in determining whether the person 
is a dependent within the meaning of this part, except that there shall 
be a rebuttable presumption that a command-sponsored individual is a 
dependent.
    Designated Commanding Officer (DCO). A single military commander in 
each foreign country where U.S. Forces are stationed and as 
contemplated by DoD Directive 5525.1, Status of Forces Policy and 
Information.
    Detention. To be taken into custody by law enforcement officials 
and placed under physical restraint.
    District. A District Court of the United States.
    Employed by the Armed Forces Outside the United States. Any person 
employed as:
    (1) A civilian employee of the Department of Defense (including a 
non-appropriated fund instrumentality of the Department); or
    (2) A civilian employee of any other Federal agency, or any 
provisional authority, to the extent such employment relates to 
supporting the mission of the Department of Defense overseas; or
    (3) A contractor (including a subcontractor at any tier) of the 
Department of Defense (including a non-appropriated fund 
instrumentality of the Department of Defense); or
    (4) A contractor (including a subcontractor at any tier) of any 
other Federal agency, or any provisional authority, to the extent such 
employment relates to supporting the mission of the Department of 
Defense overseas; or
    (5) An employee of a contractor (including a subcontractor at any 
tier) of the Department of Defense (including a non-appropriated fund 
instrumentality of the Department of Defense); or
    (6) An employee of a contractor (including a subcontractor at any 
tier) of any other Federal agency, or any provisional authority, to the 
extent such employment relates to supporting the mission of the 
Department of Defense overseas; and, when the person:
    (i) Is present or resides outside the United States in connection 
with such employment; and
    (ii) Is not a national of or ordinarily resident in the host 
nation.
    Federal Magistrate Judge. As used in the Act and this part, this 
term includes both Judges of the United States and U.S. Magistrate 
Judges, titles that, in general, should be given their respective 
meanings found in the Federal Rules of Criminal Procedure. (See 
footnote 32 of the Report Accompanying the Act) The term does not 
include Military Magistrates or Military Judges, as prescribed by the 
UCMJ, or regulations of the Military Departments or the Department of 
Defense.
    Felony Offense. Conduct that is an offense punishable by 
imprisonment for more than one year if the conduct had been engaged in 
the special maritime and territorial jurisdiction of the United States. 
See sections 3261 of the Act and 18 U.S.C. 7. Although the Act, uses 
the conditional phrase ``if committed within the special maritime and 
territorial jurisdiction of the United States,'' acts that would be a 
Federal crime regardless of where they are committed in the U.S., such 
as drug crimes contained in chapter 13 of title 21, United States Code, 
also fall within the scope of section 3261(a) of the Act. See the 
analysis to section 3261 of the Report Accompanying the Act.
    Host Country National. A person who is not a citizen of the United 
States, but who is a citizen of the foreign country in which that 
person is located.
    Inactive Duty Training. Duty prescribed for Reservists by the 
Secretary of the Military Department concerned under section 206 of 
title 37, United States Code, or any other provision of law; and 
special additional duties authorized for Reservists by an authority 
designated by the Secretary of the Military Department concerned and 
performed by them on a voluntary basis in connection with the 
prescribed training or maintenance activities of the units to which 
they are assigned. Inactive Duty Training includes those duties 
performed by Reservists in their status as members of the National 
Guard while in Federal service. See section 101(d)(7) of title 10, 
United States Code.
    Juvenile. A person who has not attained his or her eighteenth 
birthday,

[[Page 8949]]

as defined in section 5031 of title 18, United States Code.
    Military Department. The Department of the Army, the Department of 
the Navy, and the Department of the Air Force. See section 101(a)(8) of 
title 10, United States Code.
    National of the United States. As defined in section 1101(a)(22), 
of title 8, United States Code.
    Outside the United States. Those places that are not within the 
definition of ``United States'' below and, with the exception of 
subparagraph 7(9), those geographical areas and locations that are not 
within the special maritime and territorial jurisdiction of the United 
States, as defined in sections 7 of title 18, United States Code. The 
locations defined in subparagraph 7(9) of title 18, United States Code 
are to be considered ``Outside the United States'' for the purposes of 
this part. See 3261-3267 of title 18, United States Code.
    Qualified Military Counsel. Judge advocates assigned to or employed 
by the Military Services and designated by the respective Judge 
Advocate General, or a designee, to be professionally qualified and 
trained to perform defense counsel responsibilities under the Act.
    Staff Judge Advocate. A judge advocate so designated in the Army, 
the Air Force, the Marine Corps, or the Coast Guard; the principal 
legal advisor of a command in the Navy who is a judge advocate, 
regardless of job title. See Rule for Courts-Martial 103(17), Manual 
for Courts-Martial, United States (2002 Edition).
    Third Country National. A person whose citizenship is that of a 
country other than the U.S. and the foreign country in which the person 
is located.
    United States. As defined in section 5 of title 18, United States 
Code, this term, as used in a territorial sense, includes all places 
and waters, continental or insular, subject to the jurisdiction of the 
United States, except for the Panama Canal Zone.


Sec.  153.4  Responsibilities.

    (a) The General Counsel of the Department of Defense shall provide 
initial coordination and liaison with the Departments of Justice and 
State, on behalf of the Military Departments, regarding a case for 
which investigation and/or Federal criminal prosecution under the Act 
is contemplated. This responsibility may be delegated entirely, or 
delegated for categories of cases, or delegated for individual cases. 
The General Counsel, or designee, shall advise the Domestic Security 
Section of the Criminal Division, Department of Justice (DSS/DOJ), as 
soon as practicable, when DoD officials intend to recommend that the 
DOJ consider the prosecution of a person subject to the Act for 
offenses committed outside the United States. The Assistant Attorney 
General, Criminal Division, Department of Justice, has designated the 
Domestic Security Section (DSS/DOJ) as the Section responsible for the 
Act.
    (b) The Inspector General of the Department of Defense shall:
    (1) Pursuant to Section 4(d) of the Inspector General Act of 1978, 
as amended (5 U.S.C. App. 3), ``report expeditiously to the Attorney 
General whenever the Inspector General has reasonable grounds to 
believe there has been a violation of Federal criminal law.'' This 
statutory responsibility is generally satisfied once an official/
special agent of the Office of the Inspector General of the Department 
of Defense notifies either the cognizant Department of Justice 
representative or the Assistant Attorney General (Criminal Division) of 
the ``reasonable grounds.''
    (2) Pursuant to Section 8(c)(5) of the Inspector General Act of 
1978, as amended (5 U.S.C. App. 3), and 10 U.S.C. 141(b), ensure the 
responsibilities described in DoD Directive 5525.7, ``Implementation of 
the Memorandum of Understanding Between the Department of Justice and 
the Department of Defense Relating to the Investigation and Prosecution 
of Certain Crimes,'' January 22, 1985,\1\ to ``implement the 
investigative policies [,m]onitor compliance by DoD criminal 
investigative organizations [, and p]rovide specific guidance regarding 
investigative matters, as appropriate'' are satisfied relative to 
violations of the Military Extraterritorial Jurisdiction Act of 2000.
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    \1\ Available from Internet site https://www.dtic.mil/whs/
directives.
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    (c) The Heads of Military Law Enforcement Organizations and 
Military Criminal Investigative Organizations, or their Designees, 
shall:
    (1) Advise the Commander and Staff Judge Advocate (or Legal 
Advisor) of the Combatant Command concerned, or designees, of an 
investigation of an alleged violation of the Act. Such notice shall be 
provided as soon as practicable. In turn, the General Counsel of the 
Department of Defense, or designee, shall be advised so as to ensure 
notification of and consultation with the Departments of Justice and 
State regarding information about the potential case, including the 
host nation's position regarding the case. At the discretion of the 
General Counsel of the Department of Defense, other agencies and 
organizations (such as the Legal Counsel to the Chairman of the Joint 
Chiefs of Staff and Secretary of the Military Department that sponsored 
the person into the foreign country) shall be informed, as appropriate. 
Effective investigations lead to successful prosecutions and, 
therefore, these cases warrant close coordination and cooperation 
between the Departments of Defense, Justice, and State.
    (2) Provide briefings to, and coordinate with, appropriate local 
law enforcement authorities in advance or, if not possible, as soon 
thereafter as is practicable, of investigations or arrests in specific 
cases brought under the Act. If not previously provided to local law 
enforcement authorities, such briefings about the case shall, at a 
minimum, describe the Host Nation's position regarding the exercise of 
jurisdiction under the Act that followed from any briefings conducted 
pursuant to appendix A of this part.
    (d) The Domestic Security Section, Criminal Division, Department of 
Justice (DSS/DOJ) has agreed to:
    (1) Provide preliminary liaison with the Department of Defense, 
coordinate initial notifications with other entities of the Department 
of Justice and Federal law enforcement organizations; make preliminary 
decisions regarding proper venue; designate the appropriate U.S. 
Attorney's Office; and coordinate the further assignment of DOJ 
responsibilities.
    (2) Coordinate with the designated U.S. Attorney's office 
arrangements for a Federal Magistrate Judge to preside over the initial 
proceedings required by the Act. Although the assignment of a 
particular Federal Magistrate Judge shall ordinarily be governed by the 
jurisdiction where a prosecution is likely to occur, such an assignment 
does not determine the ultimate venue of any prosecution that may be 
undertaken. Appropriate venue is determined in accordance with the 
requirements of section 3238 of title 18, United States Code.
    (3) Coordinate the assistance to be provided the Department of 
Defense with the U.S. Attorney's office in the district where venue for 
the case shall presumptively lie.
    (4) Continue to serve as the primary point of contact for DoD 
personnel regarding all investigations that may lead to criminal 
prosecutions and all associated pretrial matters, until such time as 
DSS/DOJ advises that the case has become the responsibility of a 
specific U.S. Attorney's Office.
    (e) The Commanders of the Combatant Commands shall:
    (1) Assist the DSS/DOJ on specific cases occurring within the

[[Page 8950]]

Commander's area of responsibility. These responsibilities include 
providing available information and other support essential to an 
appropriate and successful prosecution under the Act with the 
assistance of the Commanders' respective Staff Judge Advocates (or 
Legal Advisors), or their designees, to the maximum extent allowed and 
practicable.
    (2) Ensure command representatives are made available, as 
necessary, to participate in briefings of appropriate host nation 
authorities concerning the operation of this Act and the implementing 
provisions of this part.
    (3) Determine when military necessity in the overseas theater 
requires a waiver of the limitations on removal in section 3264(a) of 
the Act and when the person arrested or charged with a violation of the 
Act shall be moved to the nearest U.S. military installation outside 
the United States that is adequate to detain the person and facilitate 
the initial proceedings prescribed in section 3265(a) of the Act and 
this part. Among the factors to be considered are the nature and scope 
of military operations in the area, the nature of any hostilities or 
presence of hostile forces, and the limitations of logistical support, 
available resources, appropriate personnel, or the communications 
infrastructure necessary to comply with the requirements of section 
3265 of the Act governing initial proceedings.
    (4) Annually report to the General Counsel of the Department of 
Defense, by the last day of February for the immediately preceding 
calendar year, all cases involving the arrest of persons for violations 
of the Act; persons placed in temporary detention for violations of the 
Act; the number of requests for Federal prosecution under the Act, and 
the decisions made regarding such requests.
    (5) Determine the suitability of the locations and conditions for 
the temporary detention of juveniles who commit violations of the Act 
within the Commander's area of responsibility. The conditions of such 
detention must, at a minimum, meet the following requirements: 
Juveniles alleged to be delinquent shall not be detained or confined in 
any institution or facility in which the juvenile has regular contact 
with adult persons convicted of a crime or awaiting trial on criminal 
charges; insofar as possible, alleged juvenile delinquents shall be 
kept separate from adjudicated delinquents; and every juvenile in 
custody shall be provided adequate food, heat, light, sanitary 
facilities, bedding, clothing, recreation, and medical care, including 
necessary psychiatric, psychological, or other care and treatment.
    (6) As appropriate, promulgate regulations consistent with and 
implementing this part. The Combatant Commander's duties and 
responsibilities pursuant to this part may be delegated.
    (f) The Secretaries of the Military Departments shall:
    (1) Consistent with the provisions of paragraph (c) of this 
section, make provision for defense counsel representation at initial 
proceedings conducted outside the United States pursuant to the Act for 
those persons arrested or charged with violations of section 3261(a) of 
the Act.
    (2) Issue regulations establishing procedures that, to the maximum 
extent practicable, provide notice to all persons covered by the Act 
who are not nationals of the United States but who are employed by or 
accompanying the Armed Forces outside the United States, with the 
exception of individuals who are nationals of or ordinarily resident in 
the host nation, that they are potentially subject to the criminal 
jurisdiction of the United States under the Act. At a minimum, such 
regulations shall require that employees and persons accompanying the 
Armed Forces outside the United States, who are not nationals of the 
United States, be informed of the jurisdiction of the Act at the time 
that they are hired for overseas employment, or upon sponsorship into 
the overseas command, whichever event is earlier applicable. Such 
notice shall also be provided during employee training and any initial 
briefings required for these persons when they first arrive in the 
foreign country. For employees and persons accompanying the Armed 
Forces outside the United States who are not nationals of the United 
States, but who have already been hired or are present in the overseas 
command at the time this part becomes effective, such notice shall be 
provided within 60 days of the effective date of this part.
    (3) Ensure orientation training, as described in paragraph (f)(2) 
of this section, is also provided for all U.S. nationals who are, or 
who are scheduled to be, employed by or accompanying the Armed Forces 
outside the United States, including their dependents, and include 
information that such persons are potentially subject to the criminal 
jurisdiction of the United States under the Act.
    (i) For members of the Armed Forces, civilian employees of the 
Department of Defense and civilians accompanying the Armed Forces 
overseas, notice and briefings on the applicability of the Act shall, 
at a minimum, be provided to them and their dependents when travel 
orders are issued and, again, upon their arrival at command military 
installations or place of duty outside the United States.
    (ii) For civilian employees, contractors (including subcontractors 
at any tier), and employees of contractors (including subcontractors at 
any tier) of any other Federal agency, or any provisional authority, 
permit such persons to attend the above-referenced briefings on a 
voluntary basis. In addition, to the maximum extent practicable, make 
available to representatives of such other Federal agencies or 
provisional authorities such notice and briefing materials as is 
provided to civilian employees, contractors, and contractor employees 
of the Department of Defense overseas.
    (4) Failure to provide notice or orientation training pursuant to 
paragraphs (f)(2) and (f)(3) of this section shall not create any 
rights or privileges in the persons referenced and shall not operate to 
defeat the jurisdiction of a court of the United States or provide a 
defense or other remedy in any proceeding arising under the Act or this 
part.
    (5) Provide training to personnel who are authorized under the Act 
and designated pursuant to this part to make arrests outside the United 
States of persons who allegedly committed a violation of section 
3261(a) of the Act. The training, at a minimum, shall include the 
rights of individuals subject to arrest.


Sec.  153.5  Procedures.

    (a) Applicability. (1) Offenses and Punishments. Section 3261(a) of 
the Act establishes a separate Federal offense under 18 U.S.C. for an 
act committed outside the United States that would be a felony crime as 
if such act had been committed within the special maritime and 
territorial jurisdiction of the United States, as defined in section 7 
of 18 U.S.C. Charged as a violation of section 3261(a) of the Act, the 
elements of the offense and maximum punishment are the same as the 
crime committed within the geographical limits of section 7 of 18 
U.S.C., but without the requirement that the conduct be committed 
within such geographical limits. See section 1 of the Section-By-
Section Analysis and Discussion to section 3261 in the Report 
Accompanying the Act.
    (2) Persons subject to this part. This part applies to certain 
military personnel, former military service members, and persons 
employed by or accompanying the Armed Forces outside the United States, 
and their

[[Page 8951]]

dependents, as those terms are defined in section 153.3 of this part, 
alleged to have committed an offense under the Act while outside the 
United States. For purposes of the Act and this part, persons employed 
by or accompanying the Armed Forces outside the U.S. are subject to the 
``military law'' of the U.S., but only to the extent to which this term 
has been used and its meaning and scope have been understood within the 
context of a SOFA or any other similar form of international agreement.
    (3) Military Service Members. Military service members subject to 
the Act's jurisdiction are:
    (i) Only those active duty service members who, by Federal 
indictment or information, are charged with committing an offense with 
one or more defendants, at least one of whom is not subject to the 
UCMJ. See section 3261(d)(2) of the Act.
    (ii) Members of a Reserve component with respect to an offense 
committed while the member was not on active duty or inactive duty for 
training (in the case of members of the Army National Guard of the 
United States or the Air National Guard of the United States, only when 
in Federal service), are not subject to UCMJ jurisdiction for that 
offense and, as such, are amenable to the Act's jurisdiction without 
regard to the limitation of section 3261(d)(2) of the Act.
    (4) Former Military Service Members. Former military service 
members subject to the Act's jurisdiction are:
    (i) Former service members who were subject to the UCMJ at the time 
the alleged offenses were committed, but are no longer subject to the 
UCMJ with respect to the offense due to their release or separation 
from active duty.
    (ii) Former service members, having been released or separated from 
active duty, who thereafter allegedly commit an offense while in 
another qualifying status, such as while a civilian employed by or 
accompanying the Armed Forces outside the United States, or while the 
dependent of either or of a person subject to the UCMJ.
    (5) Civilians Employed by the Armed Forces. Civilian employees 
employed by the U.S. Armed Forces outside the United States (as defined 
in section 153.3), who commit an offense under the Act while present or 
residing outside the U.S. in connection with such employment, are 
subject to the Act and the provisions of this part. Such civilian 
employees include:
    (i) Persons employed by the Department of Defense (including a non-
appropriated fund instrumentality of the Department of Defense).
    (ii) Persons employed as a DoD contractor (including a 
subcontractor at any tier).
    (iii) Employees of a DoD contractor (including a subcontractor at 
any tier).
    (iv) Civilian employees, contractors (including subcontractors at 
any tier), and civilian employees of a contractor (or subcontractor at 
any tier) of any other Federal agency, or any provisional authority, to 
the extent such employment relates to supporting the mission of the 
Department of Defense overseas.
    (6) Civilians Accompanying the Armed Forces. Subject to the 
requirements of paragraph (a)(6)(ii) of this section, the following 
persons are civilians accompanying the Armed Forces outside the United 
States who are covered by the Act and the provisions of this part:
    (i) Dependents of:
    (A) An active duty service member.
    (B) A member of the reserve component while the member was on 
active duty or inactive duty for training, but in the case of members 
of the Army National Guard of the United States or the Air National 
Guard of the United States, only when in Federal service.
    (C) A former service member who is employed by or is accompanying 
the Armed Forces outside the United States.
    (D) A civilian employee of the Department of Defense (including 
non-appropriated fund instrumentalities of the Department of Defense).
    (E) A contractor (including a subcontractor at any tier) of the 
Department of Defense.
    (F) An employee of a contractor (including a subcontractor at any 
tier) of the Department of Defense.
    (ii) In addition to the person being the dependent of a person who 
is listed in paragraph (a)(6)(i) of this section, jurisdiction under 
the Act requires that the dependent also:
    (A) Reside with one of the persons listed in paragraph (a)(6)(i) of 
this section.
    (B) Allegedly commit the offense while outside the United States; 
and
    (C) Not be a national of, or ordinarily resident in, the host 
nation where the offense is committed.
    (iii) Command sponsorship of the dependent is not required for the 
Act and this part to apply.
    (iv) If the dependent is a juvenile, as defined in section 153.3, 
who engaged in conduct that is subject to prosecution under section 
3261(a) of the Act, then the provisions of chapter 403 of title 18, 
United States Code would apply to U.S. District Court prosecutions.
    (7) Persons NOT Subject to the Act or the Procedures of this part. 
(i) Persons who are the nationals of, or ordinarily resident in, the 
host nation where the offense is committed, regardless of their 
employment or dependent status.
    (ii) Persons, including citizens of the United States, whose 
presence outside the United States at the time the offense is 
committed, is not then as a member of the Armed Forces, a civilian 
employed by the Armed Forces outside the United States, or accompanying 
the Armed Forces outside the United States.
    (A) Persons (including members of a Reserve component) whose 
presence outside the United States at the time the offense is 
committed, is solely that of a tourist, a student, or a civilian 
employee or civilian accompanying any other non-federal agency, 
organization, business, or entity (and thereby can not be said to be 
employed by or accompanying the Armed Forces within the definitions of 
those terms as established by the Act, as modified) are not subject to 
the Act. Civilian employees of an agency, organization, business, or 
entity accompanying the Armed Forces outside the U.S. may, by virtue of 
the agency, organization, business, or entity relationship with the 
Armed Forces, be subject to the Act and this part.
    (B) Persons who are subject to the Act and this part remain so 
while present, on official business or otherwise (e.g., performing 
temporary duty or while in leave status), in a foreign country other 
than the foreign country to which the person is regularly assigned, 
employed, or accompanying the Armed Forces outside the United States.
    (iii) Persons who have recognized dual citizenship with the United 
States and who are the nationals of, or ordinarily resident in, the 
host nation where the alleged conduct took place are not persons 
``accompanying the Armed Forces outside the United States'' within the 
meaning of the Act and this part.
    (iv) Juveniles whose ages are below the minimum ages authorized for 
the prosecution of juveniles in U.S. District Court under the 
provisions of chapter 403 of title 18, United States Code.
    (v) Persons subject to the UCMJ (See sections 802 and 803 of title 
10, United States Code) are not subject to prosecution under the Act 
unless, pursuant to section 3261(d) of the Act, the member ceases to be 
subject to the UCMJ or an indictment or information charges that the 
member committed the offense with one or more other defendants, at 
least one of whom is not subject to the UCMJ. A member of a Reserve 
component who is subject to the UCMJ at the time the UCMJ offense was 
committed is not relieved from amenability to UCMJ jurisdiction for

[[Page 8952]]

that offense. Such reserve component members are not subject to the Act 
unless section 3261(d)(2) of the Act applies. Retired members of a 
regular component who are entitled to pay remain subject to the UCMJ 
after retiring from active duty. Such retired members are not subject 
to prosecution under the Act unless section 3261(d)(2) of the Act 
applies.
    (vi) Whether Coast Guard members and civilians employed by or 
accompanying the Coast Guard outside the United States, and their 
dependents, are subject to the Act and this part depends on whether at 
the time of the offense the Coast Guard was operating as a separate 
Service in the Department of Homeland Security or as a Service in the 
Department of the Navy.
    (8) Persons Having a Tenuous Nexus to the United States. Third 
Country Nationals who are not ordinarily resident in the host nation, 
and who meet the definition of ``a person accompanying the Armed Forces 
outside the United States,'' may have a nexus to the United States that 
is so tenuous that it places into question whether the Act's 
jurisdiction should be applied and whether such persons should be 
subject to arrest, detention, and prosecution by U.S. authorities. 
Depending on the facts and circumstances involved, and the relationship 
or connection of the foreign national with the U.S. Armed Forces, it 
may be advisable to consult first with the DSS/DOJ before taking action 
with a view toward prosecution. In addition, to facilitate consultation 
with the government of the nation of which the Third Country National 
is a citizen, the State Department should be notified of any potential 
investigation or arrest of a Third Country National.
    (b) Investigation, Arrest, Detention, And Delivery Of Persons To 
Host Nation Authorities. (1) Investigation. (i) Investigations of 
conduct reasonably believed to constitute a violation of the Act 
committed outside the United States must respect the sovereignty of the 
foreign nation in which the investigation is conducted. Such 
investigations shall be conducted in accordance with recognized 
practices with host nation authorities and applicable international 
law, SOFA and other international agreements. After general 
coordination with appropriate host nation authorities, as referenced in 
Appendix A of this part, specific investigations shall, to the extent 
practicable, be coordinated with appropriate local law enforcement 
authorities, unless not required by agreement with host nation 
authorities.
    (ii) When a Military Criminal Investigative Organization is the 
lead investigative organization, the criminal investigator, in order to 
assist DSS/DOJ and the designated U.S. Attorney representative in 
making a preliminary determination of whether the case warrants 
prosecution under the Act, shall provide a copy of the Investigative 
Report, or a summary thereof, to the Office of the Staff Judge Advocate 
of the Designated Commanding Officer (DCO) at the location where the 
offense was committed for review and transmittal, through the Combatant 
Commander, to the DSS/DOJ and the designated U.S. Attorney 
representative. The Office of the Staff Judge Advocate shall also 
furnish the DSS/DOJ and the designated U.S. Attorney representative an 
affidavit or declaration from the criminal investigator or other 
appropriate law enforcement official that sets forth the probable cause 
basis for believing that a violation of the Act has occurred and that 
the person identified in the affidavit or declaration has committed the 
violation.
    (iii) When the Defense Criminal Investigative Service (DCIS) is the 
lead investigative organization, the criminal investigator, in order to 
assist the DSS/DOJ and the designated U.S. Attorney representative in 
making a preliminary determination of whether the case warrants 
prosecution under the Act, shall provide a copy of the Investigative 
Report, or a summary thereof, to the DSS/DOJ and the designated U.S. 
Attorney representative. The criminal investigator shall also furnish 
the DSS/DOJ and the designated U.S. Attorney representative, an 
affidavit or declaration that sets forth the probable cause basis for 
believing that a violation of the Act has occurred and that the person 
identified in the affidavit or declaration has committed the violation. 
Within the parameters of 10 U.S.C. Chapter 47, the Inspector General 
may also notify the General Counsel of the Department of Defense and 
the DCO's Office of the Staff Judge Advocate at the location where the 
offense was committed, as appropriate.
    (2) Residence Information. To the extent that it can be determined 
from an individual's personnel records, travel orders into the overseas 
theater, passport, or other records, or by questioning upon arrest or 
detention, as part of the routine ``booking'' information obtained, an 
individual's last known residence in the United States shall be 
determined and forwarded promptly to the DSS/DOJ and the designated 
U.S. Attorney representative. See Pennsylvania v. Muniz, 496 U.S. 582, 
at 601 (1990) and United States v. D'Anjou, 16 F. 3d 604 (4th Cir. 
1993). The information is necessary to assist in determining what law 
enforcement authorities and providers of pretrial services, including 
those who issue probation reports, shall ultimately have responsibility 
for any case that may develop. Determination of the individual's ``last 
known address'' in the United States is also important in determining 
what Federal district would be responsible for any possible future 
criminal proceedings.
    (i) Due to the venue provisions of section 3238 of 18 U.S.C. 
Chapter 212, Sections 3261-3267, the DSS/DOJ and the designated U.S. 
Attorney representative shall be consulted prior to removal of persons 
arrested or charged with a violation of the Act by U.S. law enforcement 
officials. The venue for Federal criminal jurisdiction over offenses 
committed on the high seas or elsewhere beyond the jurisdiction of a 
particular State or District (as would be required under the Act), is 
in the Federal district in which the offender is arrested or first 
brought. However, if the individual is not so arrested in or brought 
into any Federal district in the United States (i.e., is to be 
indicted, or information obtained, prior to the individual's return to 
the United States), then an indictment or information may be sought in 
the district of the person's last known residence. If no such residence 
is known, the indictment or information may be filed in the District of 
Columbia.
    (ii) ``First brought'' connotes the location within the U.S. to 
which the person is returned in a custodial status.
    (iii) ``Last known residence'' refers to that U.S. location where 
the person lived or resided. It is not necessarily the same as the 
person's legal domicile or home of record.
    (iv) Prompt transmittal of venue information to the DSS/DOJ and the 
designated U.S. Attorney representative in the United States may prove 
helpful in determining whether a particular case may be prosecuted, and 
may ultimately be a pivotal factor in determining whether the host 
nation or the U.S. shall exercise its jurisdiction over the matter.
    (v) The Investigative Report, and any affidavit or declaration, as 
well as all other documents associated with a case shall be transmitted 
promptly by the command Staff Judge Advocate to the DSS/DOJ and the 
designated U.S. Attorney representative. This may be accomplished 
through the use of facsimile or other means of electronic 
communication.
    (3) Notice of Complaint or Indictment. Upon receipt of information 
from command authorities or Defense

[[Page 8953]]

Criminal Investigation Organizations (the Defense Criminal 
Investigation Service, the Army's Criminal Investigation Command, the 
Naval Criminal Investigative Service, and the Air Force Office of 
Special Investigations) that a person subject to jurisdiction under 
this Act has violated section 3261(a), the U.S. Attorney for the 
District in which there would be venue for a prosecution may, if 
satisfied that probable cause exists to believe that a crime has been 
committed and that the person identified has committed this crime, file 
a complaint under Federal Rule of Criminal Procedure 3. As an 
alternative, the U.S. Attorney may seek the indictment of the person 
identified. In either case, a copy of the complaint or indictment shall 
be provided to the Office of the Staff Judge Advocate of the overseas 
command that reported the offense. The DSS/DOJ and the designated U.S. 
Attorney representative will ordinarily be the source from which the 
command's Staff Judge Advocate is able to obtain a copy of any 
complaint or indictment against a person outside the United States who 
is subject to the jurisdiction under the Act. This may be accomplished 
through the use of facsimile or other means of electronic 
communication.
    (4) Arrest. (i) Federal Rule of Criminal Procedure 4 takes the 
jurisdiction of the Act into consideration in stating where arrest 
warrants may be executed: ``Location. A warrant may be executed, or a 
summons served, within the jurisdiction of the United States or 
anywhere else a federal statute authorizes an arrest.'' The Advisory 
Committee Note explains that the new language reflects the enactment of 
the Military Extraterritorial Jurisdiction Act permitting arrests of 
certain military and Department of Defense personnel overseas.
    (ii) The Act specifically authorizes persons in DoD law enforcement 
positions, as designated by the Secretary of Defense, to make arrests 
outside the United States, upon probable cause and in accordance with 
recognized practices with host nation authorities and applicable 
international agreements, those persons subject to the Act who violate 
section 3261(a) of the Act. Section 3262(a) of the Act constitutes 
authorization by law to conduct such functions pursuant to 10 U.S.C. 
801-946 and therefore avoids possible restrictions of the Posse 
Comitatus Act regarding military personnel supporting civilian law 
enforcement agencies.
    (iii) When the host nation has interposed no objections after 
becoming aware of the Act, arrests in specific cases shall, to the 
extent practicable, be first coordinated with appropriate local law 
enforcement authorities, unless not required by agreement with host 
nation authorities.
    (iv) Military and civilian special agents assigned to the Defense 
Criminal Investigative Organizations are hereby authorized by the 
Secretary of Defense to make an arrest, outside the United States, of a 
person who has committed an offense under section 3261(a) of the Act. 
Civilian special agents assigned to Defense Criminal Investigative 
Organizations while performing duties outside the U.S. shall make 
arrests consistent with the standardized guidelines established for 
such agents, as approved in accordance with sections 1585a, 4027, 7480, 
and 9027 of title 10, United States Code.
    (v) Military personnel and DoD civilian employees (including local 
nationals, either direct hire or indirect hire) assigned to security 
forces, military police, shore patrol, or provost offices at military 
installations and other facilities located outside the United States 
are also authorized to make an arrest, outside the United States, of a 
person who has committed an offense under section 3261(a) of the Act. 
This authority includes similarly-assigned members of the Coast Guard 
law enforcement community, but only when the Coast Guard is operating 
at such locations as a Service of the Department of the Navy.
    (vi) Law enforcement personnel thus designated and authorized by 
the Secretary of Defense in this part may arrest a person, outside the 
United States, who is suspected of committing a felony offense in 
violation of section 3261(a) of the Act, when the arrest is based on 
probable cause to believe that such person violated section 3261(a) of 
the Act, and when made in accordance with applicable international 
agreements. Because the location of the offense and offender is outside 
the United States, it is not normally expected that the arrest would be 
based on a previously-issued Federal arrest warrant. Law enforcement 
personnel authorized to make arrests shall follow the Secretaries of 
the Military Departments' guidelines for making arrests without a 
warrant, as prescribed by 10 U.S.C. 1585a, 4027, 7480, and 9027. 
Authorizations issued by military magistrates under the UCMJ may not be 
used as a substitute for Federal arrest warrant requirements.
    (vii) The foregoing authorization to DoD law enforcement personnel 
to arrest persons subject to Chapter 212 of title 18, United States 
Code, for violations of the Act is not intended as a limitation upon 
the authority of other Federal law enforcement officers to effect 
arrests when authorized to do so. (E.g., see 18 U.S.C. 3052 authorizing 
agents of the Federal Bureau of Investigation to make arrests ``for any 
felony cognizable under the laws of the United States, 21 U.S.C. 
878(a)(3) for the same authority for Drug Enforcement Administration 
agents, and 18 U.S.C. 3053 for the same authority for U.S. Marshals and 
their deputies.)
    (5) Temporary Detention. (i) The Commander of a Combatant Command, 
or designee, may order the temporary detention of a person, within the 
Commander's area of responsibility outside the United States, who is 
arrested or charged with a violation of the Act. The Commander of the 
Combatant Command, or designee, may determine that a person arrested 
need not be held in custody pending the commencement of the initial 
proceedings required by section 3265 of the Act and paragraph (d) of 
this section. The Commander of the Combatant Command may designate 
those component commanders or DCO commanders who are also authorized to 
order the temporary detention of a person, within the commanding 
officer's area of responsibility outside the United States, who is 
arrested or charged with a violation of the Act.
    (ii) A person arrested may be temporarily detained in military 
detention facilities for a reasonable period, in accordance with 
regulations of the Military Departments and subject to the following:
    (A) Temporary detention should be ordered only when a serious risk 
is believed to exist that the person shall flee and not appear, as 
required, for any pretrial investigation, pretrial hearing or trial 
proceedings, or the person may engage in serious criminal misconduct 
(e.g., the intimidation of witnesses or other obstructions of justice, 
causing injury to others, or committing other offenses that pose a 
threat to the safety of the community or to the national security of 
the United States). The decision as to whether temporary detention is 
appropriate shall be made on a case-by-case basis. Section 3142 of 
title 18, United States Code provides additional guidance regarding 
conditions on release and factors to be considered.
    (B) A person arrested or charged with a violation of the Act who is 
to be detained temporarily shall, to the extent practicable, be 
detained in areas that separate them from sentenced military prisoners 
and members of the Armed Forces who are in pretrial confinement pending 
trial by courts-martial.

[[Page 8954]]

    (C) Separate temporary detention areas shall be used for male and 
female detainees.
    (D) Generally, juveniles should not be ordered into temporary 
detention. However, should circumstances warrant temporary detention, 
the conditions of such temporary detention must, at a minimum, meet the 
following requirements: juveniles alleged to be delinquent shall not be 
detained or confined in any institution or facility in which the 
juvenile has regular contact with adult persons convicted of a crime or 
awaiting trial on criminal charges; insofar as possible, alleged 
juvenile delinquents shall be kept separate from adjudicated 
delinquents; and every juvenile in custody shall be provided with 
adequate food, heat, light, sanitary facilities, bedding, clothing, 
recreation, and medical care, including necessary psychiatric, 
psychological, or other care and treatment. Appointment of a guardian 
ad litem may be required under 18 U.S.C. 5034 to represent the 
interests of the juvenile when the juvenile's parents are not present 
or when the parents' interests may be adverse to that of the juvenile.
    (iii) Persons arrested or charged with a violation of the Act, upon 
being ordered into temporary detention and processed into the detention 
facility, shall, as part of the processing procedures, be required to 
provide the location address of their last U.S. residence as part of 
the routine booking questions securing ``biographical data necessary to 
complete booking or pretrial services.'' See United States v. D'Anjou, 
16 F. 3d 604 (4th Cir.1993). This information shall be recorded in the 
detention documents and made available to the DCO's Office of the Staff 
Judge Advocate. This information shall be forwarded with other case 
file information, including affidavits in support of probable cause 
supporting the arrest and detention, to the DSS/DOJ. The information is 
provided so that the DSS/DOJ may make appropriate preliminary decisions 
about venue. See paragraph (b)(2) of this section.
    (A) Notice of the temporary detention of any person for a violation 
of the Act shall be forwarded through command channels, without 
unnecessary delay, to the Combatant Commander, who shall advise the 
General Counsel of the Department of Defense, as the representative of 
the Secretary of Defense, of all such detentions. At the discretion of 
the General Counsel of the Department of Defense, other agencies and 
organizations (such as the Legal Counsel to the Chairman of the Joint 
Chiefs of Staff and Secretary of the Military Department that sponsored 
the person into the foreign country) shall be informed, as appropriate.
    (B) Such notice shall include a summary of the charges, facts and 
circumstances surrounding the offenses, information regarding any 
applicable SOFA or other international agreements affecting 
jurisdiction in the case, and the reasons warranting temporary 
detention.
    (iv) If military command authorities at the military installation 
outside the United States intend to request a person's detention by 
order of the Federal Magistrate Judge, the military representative 
assigned to the case shall gather the necessary information setting 
forth the reasons in support of a motion to be brought by the attorney 
representing the government at the initial proceeding conducted 
pursuant to section 3265 of the Act.
    (v) This part is not intended to eliminate or reduce existing 
obligations or authorities to detain persons in foreign countries as 
required or permitted by agreements with host countries. See generally, 
United States v. Murphy, 18 M.J. 220 (CMA 1984).
    (6) Custody and Transport of Persons While in Temporary Detention. 
(i) The Department of Defense may only take custody of and transport 
the person as specifically set forth in the Act. This is limited to 
delivery as soon as practicable to the custody of U.S. civilian law 
enforcement authorities for removal to the United States for judicial 
proceedings; delivery to appropriate authorities of the foreign country 
in which the person is alleged to have committed the violation of 
section 3261(a) of the Act in accordance with section 3263; or, upon a 
determination by the Secretary of Defense, or the Secretary's designee, 
that military necessity requires it, removal to the nearest U.S. 
military installation outside the United States adequate to detain the 
person and to facilitate the initial appearance described in 3265(a) of 
the Act.
    (ii) Responsibility for a detained person's local transportation, 
escort, and custody requirements remains with the command that placed 
the person in temporary detention for a violation of section 3261(a) of 
the Act. This responsibility includes:
    (A) Attendance at official proceedings and other required health 
and welfare appointments (e.g., appointments with counsel, medical and 
dental appointments, etc.).
    (B) Delivery to host nation officials under section 3263 of the 
Act.
    (C) Attendance at Initial Proceedings conducted under section 3265 
of the Act.
    (D) Delivery under the Act to the custody of U.S. civilian law 
enforcement authorities for removal to the United States.
    (iii) A person who requires the continued exercise of custody and 
transportation to appointments and locations away from the detention 
facility, including delivery of the person to host nation officials 
under section 3263 of the Act, may be transferred under the custody of 
command authorities or those law enforcement officers authorized to 
make arrests in paragraphs (b)(4)(iv) and (b)(4)(v) of this section. 
Transportation of a detainee outside an installation shall be 
coordinated with the host nation's local law enforcement, as 
appropriate and in accordance with recognized practices.
    (iv) Military authorities retain responsibility for the custody and 
transportation of a person arrested or charged with a violation of the 
Act who is to be removed from one military installation outside the 
United States to another military installation outside the United 
States, including when the person is transferred under the provisions 
of section 3264(b)(5) of the Act. Unless otherwise agreed to between 
the sending and receiving commands, it shall be the responsibility of 
the sending command to make arrangements for the person's 
transportation and custody during the transport or transfer to the 
receiving command.
    (v) In coordination with appropriate host nation authorities, U.S. 
civilian law enforcement authorities shall be responsible for taking 
custody of a person arrested or charged with a violation of the Act and 
for the removal of that person to the United States for any pretrial or 
trial proceedings. DoD officials shall consult with the DSS/DOJ to 
determine which civilian law enforcement authority (i.e., U.S. Marshals 
Service, Federal Bureau of Investigations, Drug Enforcement Agency, or 
other Federal agency) shall dispatch an officer to the overseas' 
detention facility to assume custody of the person for removal to the 
United States. Until custody of the person is delivered to such U.S. 
civilian law enforcement authorities, military authorities retain 
responsibility for the custody and transportation of the person 
arrested or charged with a violation of the Act, to include 
transportation within the host nation to help facilitate the removal of 
the person to the United States under the Act.
    (7) Release From Temporary Detention. When a person subject to the 
Act has been placed in temporary detention, in the absence of a 
Criminal Complaint or Indictment pursuant to the

[[Page 8955]]

Federal Rules of Criminal Procedure, only the Commander who initially 
ordered detention, or a superior Commander, or a Federal Magistrate 
Judge, may order the release of the detained person. If a Criminal 
Complaint or Indictment exists, or if a Federal Magistrate Judge orders 
the person detained, only a Federal Magistrate Judge may order the 
release of the person detained. If a Federal Magistrate Judge orders 
the person temporarily detained to be released from detention, the 
Commander who ordered detention, or a superior Commander, shall cause 
the person to be released. When a person is released from detention 
under this provision, the Commander shall implement, to the extent 
practicable within the commander's authority, any conditions on liberty 
directed in the Federal Magistrate Judge's order. When the commander 
who independently ordered the person's temporary detention without 
reliance on a Federal Magistrate Judge's order, or a superior 
commander, orders a person's release before a Federal Magistrate Judge 
is assigned to review the matter, the co