How CEJA picks up where MEJA fell short
LIKE many areas of post- 9/11 law relating to national security issues, the regulation of private security and stability contractors has developed by fits and starts. Since the 2007 Nissour Square incident, however, ensuring accountability for criminal conduct engaged in by contractor employees overseas is one area that has received sustained attention from Congress and commentators. The Military Extraterritorial Jurisdiction Act of 2000 and the amendments to it in 2004 (commonly referred to as MEJA) achieved the accountability objective only in part. MEJA applies on its face only to contractor employees working overseas for the Department of Defense (DOD). An accountability gap remains for contractor employees working overseas for other government agencies, a gap that frustrates many, including contractors themselves.
The Civilian Extraterritorial Jurisdiction Act of 2011 (CEJA) is designed to fill that gap. In June 2011, Senator Patrick Leahy introduced CEJA in the Senate and Congressman David Price introduced a companion bill in the House. Senator Leahy had introduced a version of CEJA in the last Congress, but the legislation did not pass. This version may not pass either, assessing what it could accomplish is worthwhile. After all, die bill already has been reported out of the Senate Judiciary Committee, and if it does become law, federal enforcement activity will increase.
The primary purpose of CEJA is to ensure accountability for crimes contractor employees commit overseas while working under contract for government agencies other dian DOD. Section 3272(a) does that by creating federal jurisdiction over anyone employed by or accompanying any federal government agency other than DOD who "knowingly engages in conduct (or conspires or attempts to engage in conduct) outside the United States" that violates certain federal crimes. The federal crimes CEJA covers include certain crimes of violence, such as assault and murder of foreign officials, and integrity offenses such as bribery and obstruction of justice. Section 3272(b) provides limited double jeopardy protection when a foreign government prosecutes a contractor employee for any of the covered crimes, but the Attorney General can override that protection.
CEJA's jurisdiction is intended to be expansive and to simplify investigations and prosecutions. This is precisely how the Department of Justice (DOJ), the end-user of CEJA, views die legislation, as Assistant Attorney General Lanny Breuers testimony before the Senate Judiciary Committee in support of CEJA demonstrates. Breuer observed that DOJ presendy can charge an overseas contractor employee using MEJA only when DOJ "can prove that the defendant's employment 'relates to supporting the mission of the [DOD] overseas." As a result, "Cases that would otherwise be straightforward can turn into complex investigations focusing not just on the underlying criminal conduct, but also on the scope of the defendant's employment, his or her specific work duties, and other juris diction- related facts." CEJA would largely eliminate this jurisdictional investigation so that, instead, DOJ would have "clear and unambiguous jurisdiction to prosecute [non-DOD] personnel for overseas misconduct without wasting valuable resources on unnecessary [jurisdictional] litigation [.]"
Organizing and Dedicating Resources
The aggressive enforcement approach that CEJA' s broad jurisdictional reach is supposed to enable is further reflected in CEJA' s regulatory, investigative and reporting requirements. Section 3273 requires DOJ to take the lead in an interagency regulatory process to organize the way in which "the investigation, apprehension, detention, delivery, and removal" of offenders will be handled. DOJ would also have to create investigative task forces specifically to investigate misconduct by overseas government contractors. …