FBI Memo re: Potential issues to be addressed at 5/14/04 meeting with DOD

Memo is broken up in different sections. One section is entitled potentially relevant federal criminal statutes.
Another section is entitled potential issues to be discussed at May 4, 2004, [the contents are redacted].

Legal Memo
Tuesday, June 1, 2004
Tuesday, December 14, 2004

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H.hPotentially Relevant Federal Criminal Statutes
Jurisdictional Statutes
MU.S.C. 3261 et leq-MEJA
Provides for jurisdiction of conduct that would constitute a felony had the activity been engaged in within the Special Maritime and Territorial Jurisdiction of the United States, where the offender was employed by or accompanying the military outside the United States. Also provides for jurisdiction over military members under specific circumstances, including if military member charged as co-defendant with non-military member.
Provides that DoD shall, after consulting with State and DOJ, prescribe regulations governing the apprehension, detention, delivery and removal of persons under MEJA. The regulations will take effect 90 days after submitted to Congress. Regulations not yet submitted to Congress, but DoD, State and DOS in final stages of consultation requirement
Provides that DoD, after consultation with State and DOJ, shall prescribe regulations requiring that, to maximum extent practicable, notice shall be provided to persons employed by or accompanying military, but state that failure to provide such notice shall not defeat jurisdiction or provide a defense.
Provides that persons who are nationals of, or ordinarily resident in the host nation are not considered "employed" by the military for purposes of the Act. (The draft regulations also note that third country nationals may have a nexus to the United States that is so tenuous that the Act should not be applied, and advises consultation with DOS and with State in such cases.)
18 U.S.C. 7 -Special Maritime and Territorial Jurisdiction 0 the United States
Defines as within the territorial jurisdiction of the United States acts committed by a national of the United States on the "premises" of United States military...including the buildings, parts of buildings and land used for purposes of those missions or entities. This provision does not apply if person's conduct is chargeable under MEJA.
Substantive Statutes

18 US. C. § 113- Assaults within Maritime and Territorial Jurisdiction
includes, assault with intent to commit murder, assault with intent to commit a felony, assault with a dangerous weapon with intent to do bodily harm and without just cause or excuse, assault by striking, beating or wounding (misdemeanor), simple assault (misdemeanor), assault resulting in serious bodily injury, and assault resulting in substantial bodily injury.
188114 - Maiming within Maritime and Territorial Jurisdiction
whoever, with the intent to torture, maim or disfigure, cuts, bites, or slits the nose, ear, or lip, or cuts out or disables the tongue, or puts out or destroys an eye, or cuts off or disables a limb or any member of another person, or whoever, with like intent, throws or pours upon another person any scalding water, corrosive acid, or caustic substance...
J8 U.S.C. 2241 - Aggravated Sexual Abuse
Whoever in special maritime or territorial jurisdiction or in a federal prison, knowingly
causes another person to engage in a sexual act-
by using force against that other person, or
by threatening or placing that other person in fear that any person will be subjected to
death, serious bodily injury, or kidnaping...

18 U.S.C. 2242 - Sexual Abuse
Whoever in special maritime or territorial jurisdiction or in a federal prison knowingly
causes another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnaping)
18 U.S.C. P243-Sexual abuse of a minor or ward
Whoever, in special maritime or territorial jurisdiction of the United States or in a federal prison, knowingly engages in a sexual act with another person who la-
in official detention; and
under the custodial, supervisory, or disciplinary authority of the person so engaged.

18 U.S.C. 2244 - Abusive Sexual Contact
(Under META, violations of this statute could only be charged for violations of subsections (a)(1)-(3), which are punishable by more than one year in prison)
Whoever, in the special maritime or territorial jurisdiction of the US or in a federal prison, knowingly engages in or causes sexual contact with or by another person, hhad the sexual contact been a sexual act, shall be fined under this title, or imprisoned....

_ DOJFBI-002737

J8 U.S.C. f 2340A -Torture
Offense.– Whoever outside the United States commits or attempts to commits torture shall... be imprisoned not more than twenty years...

Jurisdiction...There is jurisdiction over the activity prohibited in subsection (a) if–

the alleged offender is a national of the United States; or

the alleged offender is present in the United States...

Conspiracy. A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death)....

18 U.S.C. §2340 Definitions
As used in this chapter—
(1) " Torture" means an act committed by a person

acting under color of law

specifically intended to inflict severe physical or mental pain or

suffering — other than pain or suffering incidental to lawful sanctions
— upon another person within his custody or control
(2) "Severe mental pain or suffering" means the prolonged mental harm caused by
or resulting from – (A)the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated profoundly to disrupt the senses or the personality;
( C ) threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain...
(3) "United States" includes all areas under the jurisdiction of the United States of the places described in sections 5 and 7 2 of this title....
2 18 U.S.0 §7(9) includes military premises in foreign countries, but does not apply with respect to a person described in § 3261(a) (MEJA).

18 EISC,2441 War Crimes
Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection

shall be ....imprisoned for life or any term of years...

Circumstances.— The circumstances are....that persons committing such war crime... is a member of the Armed Forces of the United States...or a national of the Untied States...

( c ) Definition. .... 'war crime' means any conduct —
defined as a grave breach' in any international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party


which constitutes a violation of common Article 3 4 of the international conventions signed at Geneva, 12 August 1949, or any protocol....and which deals with non-intonational armed conflict..

18 U.S.C5 1510 (q)—Qbstruction of criminal Investigations
Whoever willfully endeavors by means of bribery to obstruct, delay or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator shall be fined under this title, or imprisoned for five years , or both
3 Grave breaches to 1949 Geneva Conventions M (relative to prisoners of war, Article 130), or 1949 Geneva Convention W (relative to civilians, Article 147) include wilful killing, torture or inhuman treatment, wilfully causing great suffering or serious injury to body or health
'Violations of Common Article 3 include violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture outrages upon personal dignity, in particular humiliating and degrading treatment
DETAINEES-2113 ,h DOJFBI-002739

1881001-False Statements
Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative , or judicial branch of the Government of the United States, knowingly and willfully

falsifies , conceals or covers up by any trick, scheme, or device a material fact;

makes any materially false, fictitious, or fraudulent statement or representation; or

make or uses any fake writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

Shall be fined under this title or imprisoned not more than five years or both.
18 U.S. C. f 371 -Conspiracy
If two or more persons conspire either to commit any offense against the United States, or any agency thereof, or to defraud the United States in any manner or for any purpose,
— and one or more of such persons do any act to effect the object of the conspiracy
—each shall be fined or imprisoned under this title
–not more than five years or both'
'If the offense which was the object of the conspiracy was a misdeameanor, then the punishment shall not exceed the maximum punishment for a misdeameanor.


HI. Crimes Referral Statute and MOUs
A.hStatutory Requirements
Title 28 U.S.C.§ 535(b) requires that-

[a]ny information, allegation or complaint received in a department of the executive branch of the Government relating to violations of title 18 involving government officers or employees shall be expeditiously reported to the Attorney General by the head of the department or agency, unless–
the responsibility to perform the investigation ... is assigned otherwise by another provision of lavr, or

as to any department or agency ... the Attorney General directs otherwise with respect to a specified class of information , allegation , or complaint.



(b) One or More Subjects cannot be Tried by Court-Martial
'When a crime (other than those covered by paragraph C.1) 7 has occurred on a military installation and there is reasonable basis to believe that it has been committed by a person or persons, some or all of whom are not subject to the [UCMJ], the Department of Defense investigative agency will provide immediate notice of the matter to the-appropriate Department of Justice investigative agency unless the Department of Justice has
6 The MOU was signed in August ,1984, long before MEJA, and at time when the holding in Reid v. Covert,354 U .S.1 (1957) meant there was no effective U.S. extraterritorial jurisdiction over civilians accompanying the military. The military could always try members under the UCMJ who committed crimes off post and overseas, hence the reference m the MOU to crimes committed on military installations should be interpreted as military installations in the
' e.g. Corruption by DOD personnel, theft and embezzlement of government property.
relieved the Department of Defense of the reporting requirement for that type or class of crime."
This Memorandum of Understanding" (MOU) sets forth the procedures by which
each agency and organization within the Intelligence Community shall report to
the Attorney general and to federal investigative agencies information concerning
possible federal crimes by employees of an intelligence agency or organization, or
violations of specified federal criminal laws by any other person, which
information was collected by it during the performance of its designated
intelligence activities, as those activities are defined in E..0. 12333,§§1.8-1.13.
Of significance is the definition in the MOU of "Employee", which means:
A staff employee, contract employee, asset, or other person or entity providing service to or acting on behalf of any agency within the intelligence community.

A former officer or employee of any agency within the intelligence community for purpose of an offense committed during such person's employment....

(3) any other Government employee on detail to the Agency
The MOU requires each employee of the agency to report
to the General Counsel or IG facts or circumstances that
reasonably indicate to the employee that an employee of an
intelligence agency has committed, is committing, or will
commit a violation of federal criminal law'
The MOU provides detailed instructions on how "Special
' Directed by Executive Order 12333,and entered into by the Secretary of Defense on
August 11, 1995.

'When a General Counsel or IG has received information concerning alleged violations of federal law by an employee of another mtelligence community agency, and those violations are not exempted under section IILE.4 [espionage], hereof, the General Counsel shall notify in writing the General Counsel of the accused employee's agency. The latter General Counsel must then determine whether this MOU requires the allegations to be reported to the Department of Justice.
Crimes Reports" will be submitted by the General Counsel of the agency involved to the AAG or designated Deputy AAG, in the Criminal Division.

The MOU cites Title 28, U.S.C.§535(b), supra, and does not modify the provisions of the DOD-DOJ MOU of 1984,

IV. Poteadal Issues to be Addressed at 5/14/04 meedig with DOD
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