Madam Chairwoman, I yield myself such time as I may consume. Madam Chairwoman, when I walk into this great body, I understand often why our approval ratings are so low with the American people, because they tune in and they listen to our…
Madam Chairwoman, I yield myself such time as I may consume.
Madam Chairwoman, when I walk into this great body, I understand often why our approval ratings are so low with the American people, because they tune in and they listen to our debates and they listen to us talk about problems, and then they actually read the legislation and they look at the proposed solutions and they scratch their heads and oftentimes say there's a huge disconnect between the two.
The other thing that they see is they see Members on this side of the aisle and certain Members on that side of the aisle who scratch our heads and wonder why we can't come together in a bipartisan manner to create solutions that actually work. And this piece of legislation is exactly why that isn't able to happen. Because when this bill came through the Judiciary Committee, the minority and the majority both agreed, it was voted out by voice vote because the intent that you will hear discussed today was supported by both the majority and the minority. But we were given assurances, and we certainly had the expectations, that the absolutely poor drafting of this legislation would be corrected before it came to the floor. And we had opportunities to do that, Madam Chairwoman, but they didn't happen.
And so today we have a bill that Members are in somewhat of a quandary over how they vote because they can either vote on this bill and vote against the bill to send a message to the Senate that it needs work and it needs to be corrected, even though they support the intent of the bill and hope the Senate will do what we cannot do, and that is, correct the poor draftsmanship, or they can vote for the bill because they support the intent of the bill, and again, hope springs eternal, and hope that the Senate will be able to correct the poor draftsmanship and send us back a better bill in conference.
I am not going to suggest which way they should vote, but let me try to correct the disconnect between the problems that are alleged and the actual legislation, because it's an intent that's important for us to get right, but it's important for us to get right with proper drafting.
First of all, under MEJA, which was passed under the previous majority, let me tell you who was actually covered. Under that bill, which is the reach we have to reach out for individuals who may be Americans who do stuff that's wrong overseas under contracts at that time, every Member of the Armed Forces that was subject to the Uniform Code of Military Justice was covered. Every civilian employee of DOD was already covered. All the employees of every other Federal agency and every provisional authority who was supporting a mission of DOD was covered. Every contractor of DOD, covered. All contractors of any Federal agency or provisional authority supporting missions, and their employees, covered. The dependents of the members of the Armed Forces, covered. The dependents of the civilian employees of DOD, covered. And the dependents of DOD contractors, all covered under current legislation.
Now, what does this legislation purport to do? What it purports to do is to add contractors of other Federal agencies who are not supporting DOD missions but who work in, according to the language of the bill, close proximity to a contingency operation. Well, Madam Chairman, the problem is that we've actually reduced some of the jurisdiction as opposed to increased the jurisdiction under this particular legislation.
First of all, there is no defining of what ``close proximity'' actually means. And there is no carve-out for those who are supporting a DOD mission who might not be in close proximity to a contingency operation.
So, Madam Chairwoman, under the proposed legislation, if we have a contractor who was doing something that would have been covered because they were in support of a DOD mission, but let's say they were on a base in Germany, because they were not in proximity or close proximity to an area of contingent operations, under the previous jurisdiction they've been covered; under this jurisdiction they would no longer be covered. That's something that could have easily been corrected in the draftsmanship if we had been given the opportunity to do that prior to coming to the floor.
The second thing, Madam Chairwoman, is when it comes to intelligence operations, which will now be brought under this particular bill, there is no carve-out under this bill for employees who may be working in operations that are involved in intelligence. If they are accused of doing a particular criminal act and they are then exposed and the linkage is because they're hired to do intelligence activities somewhere else, that entire network could then be exposed and the security of this country jeopardized, which certainly shouldn't be the intent of what we want. Again, that could have easily been corrected if we could have just written that in and corrected it before it came here.
The other thing, Madam Chairman, is there is no carve-out for residents and nationals of other countries. In the current bill there is, but under this particular legislation and the way this bill came to the floor, it may not be. We can actually have an employee of a company from another country, not even a resident of the United States, who could be employed by one of our corporations doing work for the United States, and because of the way this bill is drafted, when they say just because they're in the employ and they didn't put a scope of employment definition in the bill, then even if that person was outside of his employment, even if he was off the job, even if he wasn't working then, if he committed an act that might be a criminal offense in the United States, even if it wasn't a criminal offense in the country in which he did it, under this bill there would be jurisdiction, but there are all kinds of questions as to whether or not we could pick him up, arrest him and detain him.
The final thing, Madam Chairman, that could have easily been corrected and wasn't done is this bill sends the FBI to do these investigations in theater of operations, and there is no definition for what theater of operations actually is. We are now putting our agents in danger to do investigations in areas of military conflict where they primarily do investigations domestically at home, but we don't give them any funding to do it; we just mandate that they do it. And some of the estimates of cost that were given in the committee were as much as $5 million just to do the investigations. That means that we will have FBI agents that will be doing investigations of employees who could be doing illegal activities overseas, but we may be taking them away from activities here domestically that they could be protecting American citizens here against terrorist activity, against gang activity and against things that are going on in the United States, and this bill doesn't give a dime of funding to do that.
So, Madam Chairman, this is a bill, the intent of which is a good intent; unfortunately, the draftsmanship is horrible. It is unfortunate that we couldn't have worked in a bipartisan way to have corrected those issues before they got to the floor.
Madam Chairman, I reserve the balance of my time.
Madam Chairman, I would have responded to the gentleman from North Carolina had he yielded to me when he asked me the question what I would do that we support the intent of this bill, but it doesn't justify writing a poor bill. It doesn't justify taking away existing jurisdiction. When we have contractors that are committing bad actions, whether they are in Iraq or whether they are in Germany, we want to hold them accountable. Why in the world we would draft legislation which could reduce that jurisdiction is beyond me.
I would like, Madam Chairman, to yield at this time 7 minutes to the distinguished gentleman from Connecticut (Mr. Shays).
Madam Chairman, I yield myself such time as I may consume.
Madam Chairman, once again we hear the intent, but why in the world we would want to reduce the current jurisdiction that we have, which is what we see reflected in this piece of legislation that could have been corrected, still is beyond me. If we have a contractor who is having employees doing illegal acts in a base in Germany in a mission for DOD, we would want to prosecute them every bit as much as we would if they were in Iraq. Why we want to reduce that, I just don't understand.
Madam Chairman, I yield 1 minute to the gentleman from Connecticut (Mr. Shays).
Madam Chairman, I yield myself such time as I may consume.
Madam Chairman, once again we hear the reasons and the policy reasons why we would like to have legislation, but it doesn't suggest why we need poorly drafted legislation.
My good friend from Virginia, for whom I have the utmost respect, mentioned that there were 17 pending cases of detainee abuse, including some that occurred at Abu Ghraib prison in Iraq. But we already have jurisdiction for those. This isn't a bill that deals with prosecutorial discretion or whether or not we are going to have prosecutors prosecute those cases. This is a jurisdictional bill.
The second thing, my good friend mentioned the fact that some of the deficiencies in this bill were corrected by the manager's amendment. The only thing the manager's amendment has done is to say with our security concerns for our FBI agents, who normally do not do investigations in war zones, they do them domestically, we have a manager's amendment that says that they can request assistance from the Secretary of Defense.
Madam Chairman, requesting assistance and security and getting it are two different things. We had the ability to request bipartisan cooperation in redrafting this legislation. It didn't happen.
So our concern, Madam Chairman, is not again all that we hear in the debate about getting at bad apples, but it is why we want to reduce the jurisdiction that we currently have for some of those bad apples; and, secondly, why we are going to expose and create vulnerabilities for our intelligence network and also for our FBI when it is so easily corrected, if we could just sit down and do that with the proper amendments.
Madam Chairman, I reserve the balance of my time.
Madam Chairman, once again I scratch my head as I listen. The gentleman has just stated on the one hand that the legislation does not reduce the jurisdiction and then 30 seconds later he says, oh, but there are differences between the bases in Germany and the bases in Iraq and it's okay if we don't prosecute the ones in Germany. We can't have it both ways.
Madam Chairman, this significantly does do it. The bottom line on this is that we have created a new standard which is proximity to contingency operations before we could reach in and get those bad actors in Germany and
many of the bad actors that were in the contingency operation areas.
I want to emphasize again on the FBI, it's not that we mind the FBI doing the work. We want to make sure that they are secure when they do it, and give them the funds to do it because they are stretched so thin defending us here against terrorists and defending us against gang and other criminal activities here, that it makes no sense for us to mandate that they would take those resources and spend them overseas without giving them the funds to do it.
Madam Chairman, I reserve the balance of my time.
Madam Chairman, I yield myself such time as I may consume.
Madam Chairman, once again my good friend from Virginia talks about equal justice; we agree. He talks about not acting with impunity; we agree.
That's why this minority when it was the majority passed the MEJA legislation in the first place. That is why we have covered the DOD contractors, their employees and dependents and the Armed Forces members. All of these individuals are already covered at this point in time if they are supporting a mission of DOD.
And we agree, the American people and most people in this House want us to reach out and get the bad actors. The only thing that they don't want us to do in the process is, one, jeopardize the intelligence operations that we could have, which this bill could easily do.
Number two, they don't want us to divert resources here from the United States in dealing with terrorism and gang activities and criminal activities here, or put our FBI agents in harm.
The third thing they don't want us to do is let bad actors do these things in Germany and Haiti wherever they may be sent just simply because we couldn't get the drafting right.
That is our point that we have been saying from the beginning. It is easy to have equal justice, not let contractors act with impunity, but write it in a good, rational basis that can be enforceable and not the kind of drafting that we have had brought forward in this legislation.
Madam Chairman, I reserve the balance of my time.
Madam Chairman, I yield myself such time as I may consume.
Madam Chairman, once again we hear the words that we can and we must do this, and we agree. The only thing, we must do it with proper legislation. Once again, as we pointed out, I don't see how any Member of this Congress or many of our citizens across the country want us to take individuals who may be employees doing intelligence operations for us in any area, and simply because they have an allegation of a criminal act that may not even have been criminal in that area, that they may be doing it on an undercover basis, that we then have to have them exposed which this act could very easily do, and the linkage would only be because they were hired to do that particular act; and, therefore, expose the entire network in that intelligence operation.
They are the kinds of things that we could easily correct so that we could do this legislation and accomplish the intent of the legislation.
Madam Chairman, I reserve the balance of my time.
I will be happy to, Mr. Chairman.
Madam Chairman, first of all, I am appreciative of all of the people who have worked on this legislation. I am appreciative of the comments we have had here. I think if we try to pick through the apples and the oranges and we look at what we have, we find that the intent of what we are trying to do is an intent that is shared by both sides of the aisle.
We don't want bad contractors. We don't want bad actors. We don't want people working in the name of the United States anywhere in the world that we aren't able to reach out and make sure that they are accountable. That's why this Congress previously on two different occasions has, one, passed the MEJA legislation and also expanded it. That's why we have already reached out and said if you are a member of the Armed Forces, we are going to reach out to you under MEJA and make sure that we hold you accountable.
That is why we have already said if you are an employee of DOD, we are going to reach out and hold you accountable. That is why we have already said if you are a civilian employee of any Federal agency in support of a DOD mission, we are going to hold reach out and hold you accountable. That is why we have already said if you are a contractor of DOD, we are going to reach out and hold you accountable. That's why we have said if you are a contractor of any other Federal agency and you are in support of a DOD mission, we are going to reach out and hold you accountable. That is why we have already said if you are a dependent of a member of the Armed Forces, we are going to hold you accountable. That is why we have already said if you are a dependent of a civilian employee of a DOD contractor, we are going to hold you accountable. Or if you are a dependent of a civilian employee of DOD, we are going to hold you accountable.
We do not have a problem, we encourage the reach-out, to hold accountable other contractors who might be working for other Federal agencies. But we think the wording in this bill, we could do much better. We hope that our friends in the Senate will sit down in a more bipartisan manner and correct those defects before this bill becomes law.
We believe a reading of the law does narrow the existing jurisdiction because we have added a phrase which is a limiter which means that it is within the proximity of the contingency operation. To many people listening to that debate, it is just words. But to the courts, it is litigation over what ``proximity'' means and it is a limiter which we believe could allow bad actors who could currently be brought under MEJA to escape liability.
In addition, we are very, very concerned in a world and in a day when we know that terrorists are out to get the United States that we not limit our intelligence operations. Why in the world we would want to expose some of those intelligence operations and the contractors that we have to hurting those intelligence networks when we could easily correct that is beyond me, especially in a day and age where we know that intelligence is so vitally important to the defense and the protection and the security of American citizens across the country.
Finally, Madam Chairman, it is of grave concern to us in what we are doing to the FBI, to enforce upon them, whereas before we have given them discretion. This is a mandate that they do investigations. It is a mandate that they furnish adequate personnel to do that. And to put them in a situation in a military conflict where they have to do these investigations is a concern for their security.
The second thing that it is a major concern of is diversion of assets that they are currently using in the United States to keep our citizens safe, to protect us from terrorists and gang activity, to protect us from other criminal activity here. If we are going to mandate that for them, at least let's put the funds there and make sure that we do it.
That is why I simply close the way I began by saying this is a bill that individuals will have to determine: Do they just simply want to vote for this bill in the hopes, and realizing that hope springs eternal, that perhaps the Senate can correct these defects before they become law and cast their vote because they agree, as I do, with the intent of this bill? Or do they cast a ``no'' vote even though they agree with the intent of the bill because they want to make sure that they have sent that signal over to our friends in the Senate that they want to protect our intelligence networks, protect the FBI, and make sure we expand, not decrease, the jurisdiction that we have.
With that, Madam Chairman, I yield back the balance of my time.
Madam Chairman, I rise to claim the time in opposition to this amendment.
Madam Chairman, I yield myself such time as I may consume.
Madam Chairman, the manager's amendment purports to correct several flaws with this legislation. Unfortunately, the amendment offered by my good friend, the distinguished chairman of the Judiciary Committee, misses the mark. It is one of those things that had we had the opportunity to work in a bipartisan way we could have corrected it. I don't have any pride of authorship, don't care who writes it. We just need to get it written correctly, and unfortunately, it's not written correctly as it's before us today.
H.R. 2740 imposes an unworkable and unnecessary geographic limitation on Federal jurisdiction to areas in ``close proximity'' to a contingency operation. The manager's amendment fails to correct this flaw. If the majority were serious about passing a good bill, it would have heeded the concerns of the Department of Defense that establishing extraterritorial jurisdiction based upon a tenuous link to geographic locations where a military presence can be found is impractical. Civilian criminal jurisdiction based on a nexus dependent upon a military ``contingency operation'' is ill-advised.
For instance, Madam Chairman, if the majority had consulted the Department of Defense, it would have learned that Secretary-designated contingency operations are rarely, if ever, used and are limited to operations with a view toward an enemy or opposing military force.
By-law designations, however, result from automatic actions during a war or a national emergency declared by the President or Congress, the scope of which may be unannounced, generally unknown, or imprecisely defined.
Thus, it will be next to impossible for Federal prosecutors to establish jurisdiction in a U.S. court based upon an indefinable proximity to a contingency operation at the time the offense occurred.
Moreover, the majority clearly did little to educate itself as to how the government currently investigates fraud or violent crimes committed by U.S. military personnel or contractors overseas. If it had, it would have learned that such investigations are not conducted solely by the
Madam Chairman, I yield myself such time as I may consume.
I have nothing but the utmost respect for my good friend from Virginia and the chairman of the Crime Subcommittee. However, that offer was extended to us when we had the bill come out of the Judiciary Committee, and we thought we were going to be able to make those corrections between then and the time it came to the floor. They weren't.
The manager's amendment that was ultimately filed was filed right before we could even file amendments, and I certainly was never presented with that amendment.
So we hope that the Senate will make these changes, Madam Chairman. We look forward to that. I think it's important for the American people and for the individuals that are defending this country.
Madam Chairman, I yield back the balance of my time.
Madam Chairman, I ask unanimous consent to claim the time in opposition to this amendment, although I'm not opposed to it.
Madam Chairman, I yield myself such time as I may consume.
This amendment, Madam Chairman, expands the reporting requirement of the Department of Justice Inspector General to include a list of charges that have been brought against contractors and contract employees in Iraq and Afghanistan, a list of all criminal investigations and reports made with respect to contractors and contract employees in Iraq and Afghanistan in cases where no criminal charges were ultimately brought, and a description of the legal actions taken by the United States Government against contractors and contract employees in Iraq and Afghanistan as a result of a criminal charge or criminal investigation.
This is important information that Congress should be provided in order to make informed and accurate decisions regarding the investigation and prosecution of offenses by contractors overseas. I urge my colleagues to support the amendment.
Madam Chairman, I yield back the balance of my time.
Madam Chairman, I rise to claim the time in opposition to this amendment.
Madam Chairman, I yield myself such time as I may consume.
This amendment requires the FBI to report annually to Congress the number of reports received of criminal misconduct by contractors, the number of reports received of fatalities caused by contract personnel, the number of cases referred to the Attorney General, and statutory changes necessary for the Director to carry out the duties entailed by this bill.
As I mentioned earlier in this debate, the creation of Theater Investigative Units within the FBI will hinder rather than help the investigation and prosecution of overseas crimes under MEJA. The creation of such units ignores the current framework of interagency cooperation amongst the Departments of Justice, Defense and State.
More importantly, these investigative units are in direct conflict with statutory mandates under other portions of MEJA. For instance, MEJA, under title 10, section 3262, requires the Secretary of Defense to authorize a person within the Department of Defense to arrest persons subject to MEJA.
H.R. 2740 does nothing to address this requirement with the conflicting requirement that the FBI establish Theater Investigative Units. Which agency will take custody, detain and transfer suspects arrested under MEJA?
MEJA allows suspects to be transferred to authorities of a foreign country for trial in certain circumstances. The Secretary of Defense is responsible for determining which officials of a foreign country constitute appropriate authorities. Will the Secretary now be required to make this decision for contractors not associated with military operations or will this decision fall to the FBI and, if so, under what authority?
MEJA allows initial court proceedings to occur while the covered person is outside of the United States. When this occurs, MEJA requires that a suspect be appointed counsel by a Federal magistrate judge. Such a counsel is designated a qualified military counsel, which is designed as a judge advocate made available by the Secretary of Defense. So now will a contractor who isn't associated with military operations be assigned a military judge advocate to be his counsel? Or will the Department of Justice be required to designate qualified civilian counsel for nonmilitary contractors and under what authority?
Clearly, there are numerous flaws with the creation of FBI Theater Investigative Units. This amendment does not alleviate any of these concerns.
I urge my colleagues to oppose the amendment.
Madam Chairman, I yield back the balance of my time.