S.Amdt. 4788

SA 4788. Mr. BYRD submitted an amendment intended to be proposed by him to the House amendment to the amendment of the Senate to the bill H.R. 2642, making appropriations for military construction, the Department of Veterans Affairs, and related agencies for the fiscal year ending September 30, 2008, and for other purposes; which was ordered to lie on the table; as follows:

In lieu of the language proposed to be inserted, insert the following:

TITLE XII

POLICY REGARDING OPERATIONS IN IRAQ

units deployed for combat to be fully mission capable

Sec. 12001. (a) The Congress finds that it is the policy of the Department of Defense that units should not be deployed for combat unless they are rated “fully mission capable”.

(b) None of the funds made available by this Act may be used to deploy any unit of the Armed Forces to Iraq unless the President has certified in writing to the Committees on Appropriations and the Committees on Armed Services of the House of Representatives and the Senate at least 15 days in advance of the deployment that the unit is fully mission capable in advance of entry into Iraq.

(c) For purposes of subsection (b), the term “fully mission capable” means capable of performing assigned mission essential tasks to the prescribed standards under the conditions expected in the theater of operation, consistent with the guidelines set forth in the DoD Directive 7730.65, Subject: Department of Defense Readiness Reporting System; the Interim Force Allocation Guidance to the Global Force Management Board, dated February 6, 2008; and Army Regulation 220-1, Subject: Unit Status Reporting, dated December 19, 2006.

(d) The President, by certifying in writing to the Committees on Appropriations and the Committees on Armed Services of the House of Representatives and the Senate that the deployment to Iraq of a unit that is not assessed mission capable is required for reasons of national security and by submitting along with the certification a report in classified and unclassified form detailing the particular reason or reasons why the unit's deployment is necessary despite the unit commander's assessment that the unit is not mission capable, may waive the limitations prescribed in subsection (b) on a unit-by-unit basis.

time limit on combat deployments

Sec. 12002. (a) The Congress finds that it is the policy of the Department of Defense that Army, Army Reserve, and National Guard units should not be deployed for combat beyond 365 days or that Marine Corps and Marine Corps Reserve units should not be deployed for combat beyond 210 days.

(b) None of the funds made available in this or any other Act may be obligated or expended to initiate the development of, continue the development of, or execute any order that has the effect of extending the deployment for Operation Iraqi Freedom of--

(1) any unit of the Army, Army Reserve, or Army National Guard beyond 365 days; or

(2) any unit of the Marine Corps or Marine Corps Reserve beyond 210 days.

(c) The limitation prescribed in subsection (b) shall not be construed to require force levels in Iraq to be decreased below the total United States force levels in Iraq as of January 9, 2007.

(d) The President may waive the limitations prescribed in subsection (b) on a unit-by-unit basis if the President certifies in writing to the Committees on Appropriations and the Committees on Armed Services of the House of Representatives and the Senate that the extension of a unit's deployment in Iraq beyond the period applicable to the unit under such subsection is required for reasons of national security. The certification shall include a report, in classified and unclassified form, detailing the particular reason or reasons why the unit's extended deployment is necessary.

dwell time between combat deployments

Sec. 12003. (a) The Congress finds that it is the policy of the Department of Defense that an Army, Army Reserve, or National Guard unit should not be redeployed for combat if the unit has been deployed within the previous 365 consecutive days and that a Marine Corps or Marine Corps Reserve unit should not be redeployed for combat if the unit has been deployed within the previous 210 days.

(b) None of the funds made available in this or any other Act may be obligated or expended to initiate the development of, continue the development of, or execute any order that has the effect of deploying for Operation Iraqi Freedom of--

(1) any unit of the Army, Army Reserve, or Army National Guard if such unit has been deployed within the previous 365 consecutive days; or

(2) any unit of the Marine Corps or Marine Corps Reserve if such unit has been deployed within the previous 210 consecutive days.

(c) The limitation prescribed in subsection (b) shall not be construed to require force levels in Iraq to be decreased below the total United States force levels in Iraq as of January 9, 2007.

(d) The President may waive the limitations prescribed in subsection (b) on a unit-by-unit basis if the President certifies in writing to the Committees on Appropriations and the Committees on Armed Services of the House of Representatives and the Senate that the redeployment of a unit to Iraq in advance of the expiration of the period applicable to the unit under such subsection is required for reasons of national security. The certification shall include a report, in classified and unclassified form, detailing the particular reason or reasons why the unit's early redeployment is necessary.

prohibition of permanent bases in iraq

Sec. 12004. None of the funds appropriated or otherwise made available in this or any other Act may be obligated or expended by the United States Government for a purpose as follows:

(1) To establish any military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq.

(2) To exercise United States control over any oil resource of Iraq.

transition of the mission of united states forces in iraq

Sec. 12005. It is the sense of Congress that the missions of the United States Armed Forces in Iraq should be transitioned to counterterrorism operations; training, equipping and supporting Iraqi forces; and force protection, with the goal of completing that transition by June 2009.

limitation on defense agreements with the government of iraq

Sec. 12006. None of the funds appropriated or otherwise made available by this Act or any other Act shall be available for the implementation of any agreement between the United States and the Republic of Iraq containing a security commitment, arrangement, or assurance unless the agreement has entered into force in the form of a Treaty under section 2, clause 2 of Article II of the Constitution of the United States or has been authorized by a law enacted pursuant to section 7, clause 2 of Article I of the Constitution of the United States.

prohibition on agreements subjecting armed forces to iraqi criminal jurisdiction

Sec. 12007. None of the funds made available in this or any other Act may be used to negotiate, enter into, or implement an agreement with the Government of Iraq that would subject members of the Armed Forces of the United States to the jurisdiction of Iraq criminal courts or punishment under Iraq law.

report on iraq budget

Sec. 12008. As part of the report required by section 609 of division L of the Consolidated Appropriations Act, 2008 (Public Law 110-161), the Secretary of Defense shall submit to Congress a report on the most recent annual budget for the Government of Iraq, including--

(1) a description of amounts budgeted for support of Iraqi security and police forces and an assessment of how planned funding will impact the training, equipping and overall readiness of those forces;

(2) an assessment of the capacity of the Government of Iraq to implement the budget as planned, including reports on year-to-year spend rates, if available; and

(3) a description of any budget surplus or deficit, if applicable.

partial reimbursement from iraq for fuel costs

Sec. 12009. (a) Not more than 20 percent of the funds made available in this Act under the heading “Operation and Maintenance, Defense-Wide” for the Office of the Secretary of Defense or Washington Headquarters Services may be obligated or expended unless and until the agreement described in subsection (b)(1) is complete and the report required by subsection (b)(2) has been transmitted to Congress, except that the limitation in this subsection may be waived if the President determines and certifies to the Committees on Appropriations of the House of Representatives and Senate that such waiver is in the national security interests of the United States.

(b) Not later than 90 days after enactment of this Act, the President shall--

(1) complete an agreement with the Government of Iraq to subsidize fuel costs for United States Armed Forces operating in Iraq so the price of fuel per gallon to those forces is equal to the discounted price per gallon at which the Government of Iraq is providing fuel for domestic Iraqi consumption; and

(2) transmit a report to the House and Senate Committees on Appropriations on the details and terms of that agreement.

(c) Amounts received from the Government of Iraq under an agreement described in subsection (b)(1) shall be credited to the appropriations or funds that incurred obligations for the fuel costs being subsidized, as determined by the Secretary of Defense.

prohibition on war profiteering

Sec. 12010. (a) Prohibition on War Profiteering.--

(1) In general.--Chapter 47 of title 18, United States Code, is amended by adding at the end the following:

“Sec. 1041. War profiteering and fraud

“(a) Prohibition.--Whoever, in any matter involving a contract with, or the provision of goods or services to, the United States or a provisional authority, in connection with a mission of the United States Government overseas, knowingly--

“(1)(A) executes or attempts to execute a scheme or artifice to defraud the United States or that authority; or

“(B) materially overvalues any good or service with the intent to defraud the United States or that authority;

shall be fined not more than $1,000,000 or imprisoned not more than 20 years, or both; or

“(2) in connection with the contract or the provision of those goods or services--

“(A) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

“(B) makes any materially false, fictitious, or fraudulent statements or representations; or

“(C) makes or uses any materially false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined not more than $1,000,000 or imprisoned not more than 10 years, or both.

“(b) Extraterritorial Jurisdiction.--There is extraterritorial Federal jurisdiction over an offense under this section.

“(c) Venue.--A prosecution for an offense under this section may be brought--

“(1) as authorized by chapter 211 of this title;

“(2) in any district where any act in furtherance of the offense took place; or

“(3) in any district where any party to the contract or provider of goods or services is located.”.

(2) Table of sections.--The table of sections for chapter 47 of such title is amended by adding at the end the following:

“1041. War profiteering and fraud.”.

(b) Criminal Forfeiture.--Section 982(a)(2)(B) of title 18, United States Code, is amended by striking “or 1030” and inserting “1030, or 1041”.

(c) Money Laundering.--Section 1956(c)(7)(D) of title 18, United States Code, is amended by inserting “section 1041 (relating to war profiteering and fraud),” after “liquidating agent of financial institution),”.

(d) RICO.--Section 1961(1) of title 18, United States Code, is amended by inserting “section 1041 (relating to war profiteering and fraud),” after “in connection with access devices),”.

wartime contract fraud statute on limitation extension

Sec. 12011. Section 3287 of title 18, United States Code, is amended--

(1) by inserting “or Congress has enacted a specific authorization for the use of the Armed Forces, as described in section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b)),” after “is at war”;

(2) by inserting “or directly connected with or related to the authorized use of the Armed Forces” after “prosecution of the war”;

(3) by striking “three years” and inserting “5 years”;

(4) by striking “proclaimed by the President” and inserting “proclaimed by a Presidential proclamation, with notice to Congress,”; and

(5) by adding at the end the following: “For purposes of applying such definitions in this section, the term ‘war' includes a specific authorization for the use of the Armed Forces, as described in section 5(b) of the War Powers Resolution (50 U.S.C. 1544(b)).”.

CONTRIBUTIONS BY THE GOVERNMENT OF IRAQ TO LARGE-SCALE INFRASTRUCTURE

PROJECTS, COMBINED OPERATIONS, AND OTHER ACTIVITIES IN IRAQ

Sec. 12012. (a) Large-Scale Infrastructure Projects.--

(1) Limitation on availability of united states funds for projects.--Amounts appropriated by this Act for the Department of Defense for United States assistance (other than amounts described in paragraph (3)) may not be obligated or expended for any large-scale infrastructure project in Iraq that is commenced after the date of the enactment of this Act.

(2) Funding of reconstruction projects by the government of iraq.--The Secretary of Defense shall work with the Government of Iraq to provide that the Government of Iraq shall obligate and expend funds of the Government of Iraq for reconstruction projects in Iraq that are not large-scale infrastructure projects before obligating and expending funds appropriated by this Act for the Department of Defense (other than amounts described in paragraph (3)) for such projects.

(3) Exception for cerp.--The limitations in paragraphs (1) and (2) do not apply to amounts appropriated by this Act for the Commanders' Emergency Response Program (CERP).

(4) Large-scale infrastructure project defined.--In this subsection, the term “large-scale infrastructure project” means any construction project for infrastructure in Iraq that is estimated by the United States Government at the time of the commencement of the project to cost at least $2,000,000.

(b) Combined Operations.--

(1) In general.--The Secretary of Defense shall initiate negotiations with the Government of Iraq on an agreement under which the Government of Iraq shall share with the United States Government the costs of combined operations of the Government of Iraq and the Multinational Forces Iraq undertaken as part of Operation Iraqi Freedom.

(2) Report.--Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall submit to Congress a report describing the status of negotiations under paragraph (1).

(c) Iraqi Security Forces.--

(1) In general.--The United States Government shall take actions to ensure that Iraq funds are used to pay the following:

(A) The costs of the salaries, training, equipping, and sustainment of Iraqi Security Forces.

(B) The costs associated with the Sons of Iraq.

(2) Reports.--Not later than 90 days after the date of the enactment of this Act, the President shall submit to Congress a report setting forth an assessment of the progress made in meeting the requirements of paragraph (1).

NOTIFICATION OF THE RED CROSS

Sec. 12013. (a) Requirement.--None of the funds appropriated by this or any other Act may be used to detain any individual who is in the custody or under the effective control of an element of the intelligence community (as that term is defined in section 3 of the National Security Act of 1947 (50 U.S.C. 401a)) or an instrumentality of such element if the International Committee of the Red Cross is not provided notification of the detention of such individual and access to such individual in a manner consistent with the practices of the Armed Forces.

(b) Construction.--Nothing in this subsection shall be construed--

(1) to create or otherwise imply the authority to detain; or

(2) to limit or otherwise affect any other rights or obligations which may arise under the Geneva Conventions or other laws, or to state all of the situations under which notification to and access for the International Committee of the Red Cross is required or allowed.

(c) Instrumentality Defined.--In this section, the term “instrumentality”, with respect to an element of the intelligence community, means a contractor or subcontractor at any tier of the element of the intelligence community.

Sec. 12014. (a) Of the amount appropriated or otherwise made available by the Act for the Department of Defense, up to $3,000,000 shall be available to a Federally Funded Research and Development Center (FFRDC) to conduct an examination and analysis of the feasibility and mechanics of implementing a safe and orderly phased redeployment of United States military forces from Iraq over a 12-month time period and an 18-month time period. The examination and analysis of a safe and orderly phased redeployment pursuant to this subsection shall (1) assume a scenario in which 40,000 United States military forces remain in Iraq for the purpose of protecting United States and coalition personnel and infrastructure, training and equipping Iraqi forces, and conducting targeted counterterrorism operations and (2) assume a scenario in which 100,000 United States military forces remains in Iraq for such purpose.

(b) Not later than 180 days after the date of the enactment of this Act the FFRDC shall provide the analysis and examination developed pursuant to subsection (a) to the Secretary of Defense. The Secretary shall submit the analysis and examination to the congressional defense committees in classified form, and shall include an unclassified summary of key judgments.

TITLE XIII--MILITARY EXTRATER-RITORIAL JURISDICTION MATTERS

SEC. 13001. SHORT TITLE.

This title may be cited as the “MEJA Expansion and Enforcement Act of 2008”.

SEC. 13002. LEGAL STATUS OF CONTRACT PERSONNEL.

(a) Clarification of Military Extraterritorial Jurisdiction Act.--

(1) Inclusion of federal employees and contractors.--Section 3261(a) of title 18, United States Code, is amended--

(A) in paragraph (1), by striking “or” at the end;

(B) in paragraph (2), by striking the comma at the end and inserting a semicolon; and

(C) by inserting after paragraph (2) the following new paragraphs:

“(3) while employed by any Department or agency of the United States other than the Armed Forces in a foreign country in which the Armed Forces are conducting a qualifying military operation; or

“(4) while employed as a security officer or security contractor by any Department or agency of the United States other than the Armed Forces,”.

(2) Definitions.--Section 3267 of title 18, United States Code, is amended--

(A) in paragraph (1), by striking subparagraph (A) and inserting the following new subparagraph:

“(A) employed by or performing services under a contract with or grant from the Department of Defense (including a nonappropriated fund instrumentality of the Department) as--

“(i) a civilian employee (including an employee from any other Executive agency on temporary assignment to the Department of Defense);

“(ii) a contractor (including a subcontractor at any tier); or

“(iii) an employee of a contractor (including a subcontractor at any tier);”; and

(B) by adding at the end the following new paragraphs:

“(5) The term ‘employed by any Department or agency of the United States other than the Armed Forces' means--

“(A) employed by or performing services under a contract with or grant from any Department or agency of the United States, or any provisional authority funded in whole or substantial part or created by the United States Government, other than the Department of Defense as--

“(i) a civilian employee;

“(ii) a contractor (including a subcontractor at any tier); or

“(iii) an employee of a contractor (including a subcontractor at any tier);

“(B) present or residing outside the United States in connection with such employment; and

“(C) not a national of or ordinarily a resident in the host nation.

“(6) The term ‘employed as a security officer or security contractor by any Department or agency of the United States other than the Armed Forces' means--

“(A) employed by or performing services under a contract with or grant from any Department or agency of the United States, or any provisional authority funded in whole or substantial part or created by the United States Government, other than the Department of Defense as--

“(i) a civilian employee;

“(ii) a contractor (including a subcontractor at any tier); or

“(iii) an employee of a contractor (including a subcontractor at any tier);

“(B) authorized in the course of such employment--

“(i) to provide physical protection to or security for persons, places, buildings, facilities, supplies, or means of transportation;

“(ii) to carry or possess a firearm or dangerous weapon, as defined by section 930(g)(2) of this title;

“(iii) to use force against another; or

“(iv) to supervise individuals performing the activities described in clause (i), (ii) or (iii);

“(C) present or residing outside the United States in connection with such employment; and

“(D) not a national of or ordinarily resident in the host nation.

“(7) The term ‘qualifying military operation' means--

“(A) a military operation covered by a declaration of war or an authorization of the use of military force by Congress;

“(B) a contingency operation (as defined in section 101 of title 10); or

“(C) any other military operation outside of the United States, including a humanitarian assistance or peace keeping operation, provided such operation is conducted pursuant to an order from or approved by the Secretary of Defense.”.

(b) Department of Justice Inspector General Report.--

(1) Report required.--Not later than 180 days after the date of the enactment of this Act, the Inspector General of the Department of Justice, in consultation with the Inspectors General of the Department of Defense, the Department of State, the United States Agency for International Development, the Department of Agriculture, the Department of Energy, and other appropriate Federal departments and agencies, shall submit to Congress a report in accordance with this subsection.

(2) Content of report.--The report under paragraph (1) shall include, for the period beginning on October 1, 2001, and ending on the date of the report--

(A) unless the description pertains to non-public information that relates to an ongoing investigation or criminal or civil proceeding under seal, a description of any alleged violations of section 3261 of title 18, United States Code, reported to the Inspector Generals identified in paragraph (1) or the Department of Justice, including--

(i) the date of the complaint and the type of offense alleged;

(ii) whether any investigation was opened or declined based on the complaint;

(iii) whether the investigation was closed, and if so, when it was closed;

(iv) whether a criminal or civil case was filed as a result of the investigation, and if so, when it was filed; and

(v) any charges or complaints filed in those cases; and

(B) unless the description pertains to non-public information that relates to an ongoing investigation or criminal or civil proceeding under seal, and with appropriate safeguards for the protection of national security information, a description of any shooting or escalation of force incidents in Iraq or Afghanistan involving alleged misconduct by persons employed as a security officer or security contractor by any Department or agency of the United States, and any official action taken against such persons.

(3) Form of report.--The report under paragraph (1) shall be submitted in unclassified form, but may contain a classified annex as appropriate.

SEC. 13003. INVESTIGATIVE UNITS FOR CONTRACTOR OVERSIGHT.

(a) Establishment of Investigative Units for Contractor Oversight.--

(1) In general.--The Attorney General, in consultation with the Secretary of Defense, the Secretary of State, the Secretary of Homeland Security, and the heads of any other Federal departments or agencies responsible for employing private security contractors or contractors (or subcontractors at any tier) in a foreign country where the Armed Forces are conducting a qualifying military operation--

(A) shall assign adequate personnel and resources through the creation of Investigative Units for Contractor Oversight to investigate allegations of criminal violations under paragraphs (3) and (4) of section 3261(a) of title 18, United States Code (as amended by section 13002(a) of this Act); and

(B) may authorize the overseas deployment of law enforcement agents and other Department of Justice personnel for that purpose.

(2) Rule of construction.--Nothing in this subsection shall limit any existing authority of the Attorney General or any Federal law enforcement agency to investigate violations of Federal law or deploy personnel overseas.

(b) Referral for Prosecution.--Upon conclusion of an investigation of an alleged violation of sections 3261(a)(3) and 3261(a)(4) of title 18, United States Code, an Investigative Unit for Contractor Oversight may refer the matter to the Attorney General for further action, as appropriate in the discretion of the Attorney General.

(c) Responsibilities of the Attorney General.--

(1) Investigation.--The Attorney General shall have the principal authority for the enforcement of sections 3261(a)(3) and 3261(a)(4) of title 18, United States Code, and shall have the authority to initiate, conduct, and supervise investigations of any alleged violations of such sections 3261(a)(3) and 3261(a)(4).

(2) Assistance on request of the attorney general.--Notwithstanding any statute, rule, or regulation to the contrary, the Attorney General may request assistance from the Secretary of Defense, the Secretary of State, or the head of any other Executive agency to enforce this title. This requested assistance may include the assignment of additional personnel and resources to an Investigative Unit for Contractor Oversight established by the Attorney General under subsection (a).

(3) Annual report.--Not later than one year after the date of enactment of this Act, and annually thereafter, the Attorney General, in consultation with the Secretary of Defense and the Secretary of State, shall submit to Congress a report containing--

(A) the number of violations of sections 3261(a)(3) and 3261(a)(4) of title 18, United States Code, received, investigated, and referred for prosecution by Federal law enforcement authorities during the previous year;

(B) the number and location of Investigative Units for Contractor Oversight deployed to investigate violations of such sections 3261(a)(3) and 3261(a)(4) during the previous year; and

(C) any recommended changes to Federal law that the Attorney General considers necessary to enforce this title and the amendments made by this title and chapter 212 of title 18, United States Code.

SEC. 13004. REMOVAL PROCEDURES FOR NON-DEPARTMENT OF DEFENSE EMPLOYEES AND CONTRACTORS.

(a) Attorney General Regulations.--Section 3266 of title 18, United States Code, is amended by adding at the end the following:

“(d) The Attorney General, after consultation with the Secretary of Defense, the Secretary of State, and the Director of National Intelligence, may prescribe regulations governing the investigation, apprehension, detention, delivery, and removal of persons described in sections 3261(a)(3) and 3261(a)(4) and describing the notice due, if any, foreign nationals potentially subject to the criminal jurisdiction of the United States under those sections.”.

(b) Clarifying and Conforming Amendments.--

(1) In general.--Chapter 212 of title 18, United States Code, is amended--

(A) in section 3262--

(i) in subsection (a), by striking “section 3261(a)” the first place it appears and inserting “section 3261(a)(1) or 3261(a)(2)”;

(ii) by redesignating subsection (b) as subsection (c); and

(iii) by inserting after subsection (a) the following new subsection (b):

“(b) The Attorney General may designate and authorize any person serving in a law enforcement position in the Department of Justice, the Department of Defense, the Department State, or any other Executive agency to arrest, in accordance with applicable international agreements, outside the United States any person described in section 3261(a) if there is probable cause to believe that such person violated section 3261(a).”;

(B) in section 3263(a), by striking “section 3261(a)” the first place it appears and inserting “section 3261(a)(1) or 3261(a)(2)”;

(C) in section 3264(a), by inserting “described in section 3261(a)(1) or 3261(a)(2)” before “arrested”;

(D) section 3265(a)(1) by inserting “described in section 3261(a)(1) or 3261(a)(2)” before “arrested”; and

(E) in section 3266(a), by striking “under this chapter” and inserting “described in section 3261(a)(1) or 3261(a)(2)”.

(2) Additional amendment.--Section 7(9) of title 18, United States Code, is amended by striking “section 3261(a)” and inserting “section 3261(a)(1) or 3261(a)(2)”.

SEC. 13005. EXISTING EXTRATERRITORIAL JURISDICTION.

Nothing in this title or the amendments made by this title shall be construed to limit or affect the extraterritorial jurisdiction related to any Federal statute not amended by this title.

SEC. 13006. DEFINITION.

For purposes of this title and the amendments made by this title, the term “Executive agency” has the meaning given in section 105 of title 5, United States Code.

SEC. 13007. EFFECTIVE DATE.

(a) Immediate Effectiveness.--The provisions of this title shall enter into effect immediately upon the enactment of this Act.

(b) Implementation.--The Attorney General and the head of any other Federal department or agency to which this title applies shall have 90 days after the date of the enactment of this Act to ensure compliance with the provisions of this title.