Closing the legal loophole? Practical implications of the Military Extraterritorial Jurisdiction Act of 2000 - civilians accompanying the Armed Forces

Andrew D. Fallon

ANDREW D. FALLON *

CAPTAIN THERESA A. KEENE **

The Military Extraterritorial Jurisdiction Act of 2000 (1)[hereinafter the Act or MEJA] enacted on November 22, 2000 was designed to extend Federal criminal jurisdiction over civilians accompanying the Armed Forces who commit serious offenses overseas when a host country does not exercise criminal jurisdiction. The Act will provide overseas commanders with a new tool to solve the rare, but previously vexing, issues of dealing with serious criminal misconduct by civilian personnel who cannot be tried under the Uniform Code of Military Justice (UCMJ). This article describes this innovative legal tool and comments on issues it might create.

I. BACKGROUND

Legal jurisdiction issues involving civilians accompanying American Armed Forces overseas are not new and have been addressed previously. (2) Ever since the United States Supreme Court decided in Reid v. Covert (3) and Kinsella v. United States ex rel. Singleton (4) that civilians accompanying the armed forces during peacetime could not be tried by military courts-martial, issues of a "jurisdictional gap" over civilians accompanying the armed forces overseas have been raised. In fact, Congress has considered legislation to address the issue since 1967. (5) In 1996, Congress again addressed the issue by directing that a committee be formed to investigate the issues and at least three alternative methods of providing for criminal jurisdiction over civilians accompanying our armed forces overseas. (6) The Overseas Jurisdiction Advisory Committee was formed and prepared a report (7) as well as proposed legislation that was introduced in Congress in 1999. (8) The final legislative outcome was the MEJA.

Although the original legislation recommended both extension of courts-martial jurisdiction to civilians under the Uniform Code of Military Justice during contingency operations and the assertion of extraterritorial jurisdiction for federal criminal laws during peacetime, only the assertion of extraterritorial jurisdiction for federal criminal laws was included in the final statute.

II. DESCRIPTIVE OVERVIEW (9)

The MEJA is codified at 18 U.S.C. [section][section] 3261 to 3267. (10) It creates a new offense, authorizing the punishment of certain described persons who engage in any conduct outside the United States that would have constituted an offense punishable by imprisonment for more than one year if that conduct had been engaged in within the special maritime and territorial jurisdiction of the United States. (11) Punishment for the offense is the same as it would have been if committed in the special maritime and territorial jurisdiction of the United States. (12)

The MEJA also provides guidelines for certain pre-trial procedures, from arrest to potential removal of the accused to the United States. (13) These guidelines are to be further explicated in regulations to be issued by the Secretary of Defense, following consultation with the Secretary of State and the Attorney General. (14)

A. Covered Offenses

The law appears to be constructed for straightforward application to offenses in the United States Code that are punishable by more than one year imprisonment if committed in the "special maritime and territorial jurisdiction of the United States." (15) Offenses that meet this definition include: Arson, certain aggravated assaults (simple assaults are punishable by imprisonment for one year or less and would not be included), theft (over $1000 in value), homicide, kidnapping, damage to real or personal property, selling obscene material, robbery and certain sexual abuse or exploitation of minors offenses. (16)

B. Covered Persons

Once the "conduct" falls within an offense covered by the MEJA, it must be determined that the overseas actor is also covered. The MEJA lists two categories of covered persons: certain persons who were subject to the UCMJ at the time of the offense and certain civilians employed by or accompanying the Armed Forces. (17)

1. Those Subject to the UCMJ at the Time of the Offense

The former group includes members of the Armed Forces who commit covered offenses while subject to the UGMJ but whose criminal acts are not discovered until after they have separated or retired from the service. (18) Active-duty military members may be prosecuted under the MEJA if they are charged as a co-defendant with a civilian. (19)

2. Civilians Employed by or Accompanying the Armed Forces

The second group of covered persons includes those "employed by or accompanying the Armed Forces outside the United States." (20) Each of the terms "employed by" and "accompanying" is specifically defined by the MEJA. (21) The Secretary of Defense is to provide for notice to all those "employed by" or "accompanying" the Armed Forces that they are potentially subject to criminal jurisdiction of the United States under the MEJA. (22)

a. "Employed by the Armed Forces"

Those "employed by" the Armed Forces include civilian employees of the Department of Defense (DOD) and DOD nonappropriated fund instrumentalities. (23) They also include DOD contractors, subcontractors, and employees of either contractors or subcontractors. (24) The MEJA has a long reach, expressly covering subcontractors "at any tier." (25) There is an exclusion for persons who are nationals of the host nation or ordinarily resident in the host nation. (26)

Notably, the MEJA requires that "employed" persons be "present or residing outside the United States in connection with such employment." (27) Such a limitation prevents a wide variety of tourists, who might well be employees of DOD contractors or subcontractors, but are overseas only as tourists, from becoming subject to the MEJA.

Nonetheless, there is still a possibility that a person employed by the DOD overseas in Korea, for example, could be subject to the statute for conduct while a tourist in Japan. This follows from the MEJA's jurisdiction over a person "present" outside the United States in connection with their employment (their presence in Korea) or "residing" outside the United States in connection with their employment. The person is present in Japan as a tourist, but "resides" outside the United States in Korea in connection with their employment.

b. "Accompanying the Armed Forces"

The second group covered by the MEJA is comprised of those persons "accompanying the Armed Forces outside the United States." (28) This group consists of dependents of members of the Armed Forces, dependents of civilian employees or nonappropriated fund employees of the DOD, and dependents of DOD contractors and subcontractors at any tier. (29) In essence, "accompanying" encompasses the dependents of all the people "employed by" the Armed Forces. Dependents "accompanying" must be "residing" with the member, civilian employee, or contractor outside the United States. (30) Dependents who are nationals of the host nation or ordinarily resident in the host nation are excluded from MEJA coverage. (31)

C. Excluded Persons

The MEJA excludes from its reach those persons employed by or accompanying the Armed Forces who are nationals of the host nation or ordinarily resident in the host nation. Presumably, nationals of the host nation would clearly be subject to the host nation's criminal jurisdiction, and the host nation would have sufficient interest in any criminal activities of their own nationals (or those persons ordinarily resident in the host nation) to prevent such persons from falling into any "jurisdictional gap." The MEJA also provides that no person can be prosecuted under its provisions if a foreign government is prosecuting the person for the same conduct, unless the Attorney General or Deputy Attorney General approves the U.S. prosecution. (32)

Although crimes committed by covered persons overseas are now subject to United States extraterritorial jurisdiction, the ordinary American law enforcement infrastructure to enforce such jurisdiction is obviously lacking at overseas locations. Federal judges, magistrates, grand juries, and federal prisons are often far away. American defense attorneys may not be available. The MEJA has pre-trial provisions to deal with these circumstances.

D. Pre-Trial Procedures

1. Arrest and Detention

There are several prerequisites to an arrest of someone outside the United States pursuant to the MIEJA. The first is designation of an arresting authority. Under the MEJA, the Secretary of Defense may designate any person serving in a law enforcement position in the Department of Defense to arrest MEJA violators. (33) The Secretary will likely make this designation when issuing regulations governing apprehension, detention, delivery and removal of persons under the MEJA. (34) Second, such arrest must be "in accordance with applicable international agreements." (35) Finally, there must be "probable cause to believe that such person violated [section] 3261(a)." (36)

The MEJA has several provisions on what to do with a suspect once arrested. The general rule is to promptly deliver an arrested suspect to United States civilian law enforcement authorities for removal to the United States. (37) The host nation, however, might have an interest in the suspect since a serious offense has presumably been committed within its territorial boundaries. In such situations, the MEJA provides the option of delivering the suspect to the "appropriate authorities of a foreign country." (38)

2. Delivery to Foreign Authorities

To use this option, delivery of the suspect to the foreign country must be authorized by a treaty or international agreement, (39) and the host country must request the delivery of the suspect for trial of an offense under the laws of the host country. (40) Since the suspect can only be "arrested" under the MEJA for conduct violating certain United States Code provisions, and since delivery of a suspect to the host nation is only authorized for trial of "such conduct," the suspect's conduct must be a crime under both United States Code provisions and host country laws. (41)

The MEJA allows the Secretary of Defense "in consultation with the Secretary of State" to determine which officials of the host nation may make a request for and accept custody of the suspect. (42) Of course, since the suspect would normally be subject to host country jurisdiction under most Status of Forces Agreements (SOFA), if the host country was interested in prosecuting the alleged offense, resort to the MEJA may not have been needed in the first place. Nonetheless, the MEJA does provide procedures for arrest and delivery to host country authorities if an overseas commander chooses to use them.

3. Removal to the United States

If the suspect is not delivered to the host nation authorities, what to do with him or her becomes somewhat more complex. 18 U.S.C. [section] 3262(b) generally requires that a person arrested under the MEJA "shall be (delivered as soon as practicable to the custody of civilian law enforcement authorities of the United States for removal to the United States for judicial proceedings...." (43) In seeming contradiction, however, 18 U.S.C. [section] 3264 generally states that a suspect: "shall not be removed to the United States ...." (44) So, while [section] 3262(b) seems to require prompt removal to the United States for trial, [section] 3264(a) seems to prohibit such removal. (45) The general rule of 3264(a) (against removal) is, however, accompanied by significant exceptions. The apparent conflict between 3262(b) and 3264(a) can be avoided by following the priority of exceptions provided in the MEJA.

To wit, 18 U.S.C. [section] 3264(b) provides five conditions under which the prohibition on removing a suspect to the United States does not apply. (46) Once the prohibition section 3264(a) no longer applies, presumably the mandate from section 3262 (b) to "remove to the United States for judicial proceedings. .." as soon as practicable does apply. (47) The five conditions listed in section 3264(b) are:

(1) a Federal magistrate judge orders the person to be removed to the United States to be present at a detention hearing held pursuant to [18 U.S.C.] section 3142(f); (48)

(2) a Federal magistrate judge orders the detention of the person before trial pursuant to [18 U.S.C.] section 3142(e), (49) in which case the person shall be promptly removed to the United States for purposes of such detention;

(3) the person is entitled to, and does not waive, a preliminary examination under the Federal Rules of Criminal Procedure, in which case the person shall be removed to the United States in time for such examination;

(4) a Federal magistrate judge otherwise orders the person to be removed to the Unites States; or

(5) the Secretary of Defense determines that military necessity requires that the limitations in subsection (a) above be waived, in which case the person shall be removed to the nearest United States military installation outside the United States adequate to detain the person and to facilitate the initial appearance described in [18 U.S.C.] section 3265(a) (50)

The first four of the above conditions involve a hearing before a Federal magistrate judge,5' invoking other sections of the MEJA (18 U.S.C. [section][section] 3263 and 3265) as well as Federal Rule of Criminal Procedure 5 (Rule 5), detailing how such hearings are to be conducted.

4. Initial Appearance

The MEJA requires that, unless a suspect is delivered to foreign authorities, he shall have his initial appearance conducted under the Federal Rules of Criminal Procedure by a Federal magistrate judge. (52) It "may be carried out by telephony or such other means that enables voice communication among the participants...." (53) The MEJA is silent as to how any particular Federal magistrate judge should be decided upon as the one to conduct the hearing. (54)

Once a Federal magistrate judge is selected and, presumably telephoned, both the MEJA and Rule 5 govern what happens next. Pursuant to the MEJA, the judge determines if there is probable cause to believe an offense under the MEJA has been committed and that the suspect committed it. (55) Assuming probable cause is found and there is no motion for the suspect's pretrial detention, the judge is also required to determine the suspect's conditions for release before trial. (56)

Rule 5(a) requires that, if the suspect was arrested without a warrant, as would seem likely under the MEJA, (57) a complaint must be filed "promptly." (58) The filing of the complaint seems to fulfill the same probable cause determination as that required by the MEJA. (59) Under Rule 5(a), the magistrate judge should also inform the suspect of the complaint and any affidavit filed with it; the defendant's right to retain counsel or have counsel assigned; that the suspect need not make any statement, and that any statements made could be used against him; the suspect's rights to a preliminary examination; and the general conditions for release prior to trial. (60)

5. Right to Counsel

As indicated in the immediately preceding subsections, the MEJA contemplates that initial proceedings may occur prior to a suspect's removal or return to the United States. (61) In such situations, "if the person is entitled to have counsel appointed for purposes of such proceeding, the Federal magistrate judge may appoint as such counsel for purposes of such hearing a qualified military counsel." (62) "Qualified military counsel" is defined as: 1) a judge advocate made available by the Secretary of Defense for the proceeding, 2) who is a graduate of an accredited law school or a member of the bar of a Federal court or the highest court of a State; and 3) is certified as competent to perform such duties by the Judge Advocate General of the armed forces of which he (or she) is a member. (63) Hence, the MEJA has the effect of assigning military defense counsel to represent civilians accused of committing crimes outside the United States.

III. ISSUES RAISED BY THE MILITARY EXTRATERRITORIAL JURISDICTION ACT (MEJA)

While answering the question of whether DOD-affiliated civilians may be tried for crimes committed overseas, the MEJA raises issues ranging from practical--whether military law enforcement can apprehend a civilian, to constitutional--enforcing a defendant's right to counsel overseas. This section will address some of these issues, evaluating their possible implications.

A. Posse Comitatus Issues

The MEJA's provision for the use of "any person serving in a law enforcement position in the Department of Defense to arrest" (64) MEJA suspects raises issues under the posse comitatus laws in that it may involve armed forces law enforcement personnel in the direct arrest of civilians for violations of federal civilian criminal law. The Posse Comitatus Act (65) provides:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both. (66)

In addition, 10 U.S.C. [section] 375, concerning military support for civilian law enforcement agencies, provides:

The Secretary of Defense shall prescribe such regulations as may be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law. (67)

One straightforward resolution of the posse comitatus issue would be to interpret the new statute as "expressly authorizing" use of "part of the Army or the Air Force" (68) or "members" of the Army, Navy, Air Force, or Marine Corps (69) for the arrest of suspects under the MEJA. The MEJA states that the Secretary of Defense may designate "any person" to arrest suspects. (70) An active-duty military law enforcement person would generally be a "person," and active-duty "members" would also be "persons."

This "any person" language, however, is not consistent with the specific exception language usually found in statutes expressly authorizing the use of armed forces in contravention of the posse comitatus laws. (71) As just one example of such express authorizations, (72) 18 U.S.C. [section] 112 states:

(f) In the course of enforcement of subsection (a) and any other sections prohibiting a conspiracy or attempt to violate subsection (a), the Attorney General may request assistance from any Federal, State or local agency, including the Army, Navy, and Air Force, any statute, rule, or regulation to the contrary, notwithstanding. (73)

The MEJA's simple provision permitting the Secretary of Defense to authorize "any person serving in a law enforcement position in the Department of Defense to arrest ... " (74) could be viewed as applying only to Navy personnel so as not to conflict with the provisions of 18 U.S.C. [section] 1385 applicable to the Army and the Air Force. To eliminate any conflict with 10 U.S.C. [section] 375, it could further be limited to such Navy personnel who are not "members" of the armed forces. (75) "Members of the armed forces" are defined as active-duty members and could be read to exclude Navy civilian employees who are serving in law enforcement positions. Such civilian Navy personnel could be designated by the Secretary of Defense to arrest suspects under the MEJA without violating the provisions of the posse comitatus laws even if the MEJA is not interpreted as "expressly authorizing" use of the armed forces to enforce civil laws.

B. Due Process Concerns of Insufficient Contacts to Assert Jurisdiction

Another potential MEJA issue is whether people charged pursuant to it could claim that the Fifth Amendment's Due Process Clause prevents assertion of U.S. jurisdiction. This issue was considered and raised by the Department of Justice (DOJ) at Congressional hearings on the MEJA. (76) DOJ indicated that implementing regulations might best deal with this issue by limiting application of the MEJA to those defendants with a sufficient "nexus" to satisfy due process concerns. (77) Case law from the Ninth Circuit Court of Appeals is instructive on this point.

The Ninth Circuit Court of Appeals has held that to assert criminal jurisdiction extraterritorially, due process requires a nexus between the criminal act and the United States sufficient that application of U.S. law would not be arbitrary or fundamentally unfair. (78) According to the Ninth Circuit, (79) the nexus requirement serves the same purpose as the "minimum contacts" test for personal jurisdiction the Supreme Court provided in World-Wide Volkswagen Corp. v. Woodson. (80)

For the "minimum contacts" test, analysis focuses on the quality and quantity of the potential defendant's contacts with the forum state. Continuous and systematic linkage with the forum state indicates sufficient contacts to subject the defendant to the general jurisdiction of that state's courts. (81)

The Ninth Circuit has held U.S. citizenship itself to constitute a sufficient nexus for the extraterritorial exercise of U.S. jurisdiction: "There is no doubt that the United States may exercise jurisdiction over American Nationals living abroad, regardless of where the crime is committed." (82) In maritime drug arrests, the Ninth Circuit has found sufficient nexus (and hence sufficient contacts to satisfy due process concerns) when the "transaction was aimed at causing criminal acts within the United States." (83)

While many of the potential suspects under the MEJA will be United States citizens, some will not be. In the latter cases, other facts will have to be established to provide the "nexus" between the overseas criminal act and trial by United States courts. What those facts might be, absent a criminal act or effect in the United States, is not entirely clear.

C. Venue Issues

Which Federal magistrate judge should you telephone in order to conduct the initial appearance? The MEJA provides no venue rule. Normally, venue is had in the district in which the offense occurred. (84) For crimes committed outside the jurisdiction of any district or State, however, venue is as provided in 18 U.S.C. [section] 3238. (85) It states that venue shall be in the district in which the offender is arrested or first brought. Alternatively, if the "offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of last known address of the offender... or if no such residence is known the indictment or information may be filed in the District of Columbia." (86) In this subsection, the authors review the practical applicability of each provision of 18 U.S.C. [section] 3238 to the MEJA, and finding them wanting, ultimately propose an alternative.

1. Venue by Place of Arrest

Since "arrest" under the MEJA will frequently, if not usually, be in a foreign land outside any United States court district, the rule of "where arrested" seems to provide no help when it comes to determining who would be a proper presiding Federal magistrate judge for MEJA initial appearance purposes.

2. Venue by Place "First Brought"

Venue can be obtained in the district in which the offender is "first brought" (87) but under the MEJA, the offender usually will not be removed from the foreign country in which they were arrested, i.e., "first brought" elsewhere, until after the initial appearance. (88) So, once again, the rule of venue "where first brought" seems to be of no help when it comes to determining who would be a proper presiding Federal magistrate judge for MEJA initial appearance purposes.

3. Venue by Last Known Address

One practical problem of this venue provision would be actually ascertaining the "last known address" of a suspect. For military members, typically a very mobile group, ascertaining a last known address would seem possible based on personnel records. For dependents of members, particularly foreign-born dependents, determination of last known address might be more difficult (or it may not be within the United States). Finding the last known address for contractor personnel or their dependents, or subcontractors could be even more difficult.

The impracticality of venue by last known address does not end with ascertainment of the appropriate address. It additionally implicates coordination of initial hearings and subsequent prosecutions with U.S. Attorneys in any given district in the United States, as opposed to working with one central forum with a developed expertise and consistency in application of the MEJA. (89)

4. A Proposed Alternative--The Nearest Available Federal Magistrate

An alternative approach to applying the venue rules under section 3238 to the MEJA is provided by 18 U.S C. [section] 3265. Section 3265(a)(1) provides:

In the case of any person arrested for or charged with a violation of section 3261(a) who is not delivered to authorities of a foreign country under 3263, the initial appearance of that person under the Federal Rules of Criminal Procedure-- (A) shall be conducted by a Federal magistrate judge: and (B) may be carried out by telephony or such other means that enables voice communication among the participants, including any counsel representing the person. (90)

An "initial appearance" is provided for by Rule 5 of the Federal Rules of Criminal Procedure. (91) That rule provides that: "any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate judge...." (92) If section 3265(a)(1) is viewed as providing new statutory authority, then a suspect under the MEJA could have their "initial appearance" before the "nearest available federal magistrate judge." (93) Such an interpretation would provide more flexibility to the government in processing cases under the MEJA than trying to find a suspect's last known address. The "nearest available federal magistrate judge" could be determined based on the exigencies of the suspect's location and even time zones.

D. Applicability of Extradition Treaties

Certain provisions of the MEJA require that actions, such as arrest of a suspect and delivery of a suspect to authorities of a foreign country, be taken as authorized by a treaty or other international agreement to which the United States is a party. (94) In this regard, Status of Forces Agreements (SOFAs) may apply for each specific country in which MEJA suspects may be located. Additionally, the United States is a party to over 100 international treaties providing for the extradition of persons from foreign countries to the United States for violation of criminal laws. (95)

The MEJA provides no specific guidance on whether extradition treaties are to be followed in removing an alleged offender from a foreign nation to the United States. Since the MEJA explicitly requires that "international law" be followed in only two areas, the arrest of suspects (96) and the transfer of a suspect to a foreign country, (97) it can be argued that other provisions of the Act do not require U. S. authorities to comply with international law, such as extradition treaties. Arguably, the Act itself provides alternate methods of removing a suspect to the United States so that extradition laws need not be invoked. (98)

The Supreme Court has recognized that, unless an extradition treaty or its negotiation history indicates otherwise, the treaty will not stand as the exclusive means by which a potential criminal defendant may be removed from a foreign country to stand trial in the United States. (99) In United States v. Alvarez-Machain, (100) U.S. federal law enforcement officers were responsible for forcibly abducting Defendant from Mexico to the United States. (101) The abduction's purpose was to bring Defendant before a U.S. district court to stand trial on charges related to the torture and murder of a U.S. drug enforcement agent that had occurred in Mexico. (102)

The Defendant in Alvarez-Machain argued that the U.S. district court lacked jurisdiction over him because his abduction violated the extradition treaty between the United States and Mexico. (103) Finding that the treaty neither purported to "specify the only way in which one country may gain custody of a national of another country for the purposes of prosecution" (104) nor prohibited forcible abductions as a means of gaining such custody, (105) the Court held that Defendant's kidnapping did not constitute a violation of the treaty. (106) Nor, despite the fact that it may have been "shocking" and in violation of general international law principles, (107) did it constitute a due process violation: (108)

[D]ue process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will. (109)

Accordingly, the failure to follow an extradition treaty, so long as there has been no invocation and subsequent violation of it, will not defeat the MEJA jurisdiction of a United States court over defendants for crimes committed extraterritorially.

Using Italy as an example demonstrates some of the issues involved in administration of the MEJA in compliance with the various treaties and agreements specific to any given country.

1. Arrest

A Memorandum of Agreement (110) between Italy and the United States includes a provision authorizing use of police authority (which should include the power to arrest) so the arrest of a suspect by military law enforcement personnel in Italy would certainly seem to be "in accordance with" international law. The NATO SOFA (111) also authorizes a "right to police any camps, establishments or other premises which they occupy" so the use of police authority to arrest suspects under the MEJA should be consistent with "international" law at least in NATO countries.

2. Removal to the United States

The Italian extradition treaty addresses the MEJA-type situation. (112) It allows extradition from Italy for those offenses "punishable under the laws of both Contracting Parties by deprivation of liberty for a period of more than one year or by a more severe penalty." (113) Since the MEJA covers only offenses punishable by more than one year, there is no conflict with the treaty on that issue. In establishing jurisdiction, the offense committed must be one for which the laws of the United States provide for punishment, (114) again causing no conflict with the MEJA. The treaty also provides that extradition can be obtained for extraterritorial offenses such as those envisioned by the MEJA: "When an offense has been committed outside the territory of the Requesting Party, the Requested Party shall have the power to grant extradition if its laws provide for the punishment of such an offense or if the person sought is a national of the Requesting Party." (115)

However, under the treaty, extradition could be prohibited if the felony committed is one that could be punished by death. (116) That limitation is not found in the MEJA and could be significant since the assumption is that the MEJA is designed to deal with serious offenses, including those punishable by death.

Under the treaty, extradition requires a documented request detailing the facts of the case, the possible punishment for the crime, extracts from applicable laws and prior coordination through diplomatic channels. (117) What is initially alleged as the basis for extradition remains the offense for which the suspect must be tried unless the same underlying facts constitute a "differently denominated offense which is extraditable." (118) This rule, known as the "Rule of Specialty" appears to limit the case to prosecution on the facts and laws known and presented at the time of the application for extradition.

Following the procedures in the extradition treaty might well take significantly more time than is available under the MEJA to physically return a suspect to the United States. This could prove problematic as a preliminary examination under Federal Rule s of Criminal Procedure 5 (c) may have to take place within as little as ten days following initial appearance if the person is in custody and no later than twenty days following initial appearance if the person is not in custody. (119)

E. Need for Alignment with Distinctive, Existing Regulations

There are currently two guiding regulations that address the question of how Air Force civilian personnel and family members are returned to the United States for trial or court-ordered appearances: Department of Defense Directive 5525.9 and Air Force Instruction 51-1001. (120) These two regulations deal with returning DOD employees to the United States for failure to comply with court orders (pertaining to felonies) already entered within the United States. The MEJA, on the other hand, addresses DOD civilian employees and contractors who have engaged in felonious conduct outside the United States. (121)

Under DODD 5525.9, a court may request assistance with a court order. (122) Once this request is made, if it "pertains to a felony or to contempt involving the unlawful or contemptuous removal of a child from the jurisdiction of a court or the custody of parent or another person awarded custody by court order" then the individual, if a DOD employee, is "strongly...encouraged" to comply with the court order. (123) If the employee does not respond, he could face withdrawal of command sponsorship and possible adverse action, including removal from Federal Service. (124) Family members face only loss of command sponsorship as a penalty for not responding to a court order. (125)

AFI 51-1001 implements the requirements of DODD 5525.9. It addresses only briefly how civilians who are not in compliance with a court order should be handled. (126) Two short paragraphs refer to DODD 5525.9 as well as possible adverse administrative action. (127) The AFI indicates that the commander should take all reasonable efforts to strongly encourage either a DOD employee and/or civilian family member to comply with a court order. (128) Absent such compliance, AFI 51-1001, like DODD 5525.9, contemplates disciplinary action, specifically removal, or the withdrawal of command sponsorship. (129)

Although the regulations above and the MEJA share a common purpose (ensuring that DOD employees and their family members are not immune to legal action by way of overseas assignments), they do not work in concert and can be viewed as distinct. To that end, it is clear that MEJA implementing regulations, already under development by the Department of Defense, will need to ensure emphasis on both directions of action--actions from the United States and those returning to it--with responsiveness and clarity.

F. Air Force Defense Counsel Concerns

The MEJA contemplates that initial proceedings may occur prior to a suspect's removal or return to the United States. (130) In such situations, "if the person is entitled to have counsel appointed for purposes of such proceeding, the Federal magistrate judge may appoint as such counsel for purposes of such hearing a qualified military counsel." (131) This provision raises the issue of when someone is "entitled" to military counsel.

The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." (132) The Sixth Amendment right to counsel is applicable to all federal and state criminal prosecutions (133) where the defendant is accused of a felony. (134) Since the MEJA concerns itself only with felony offenses, the right to counsel will likely attach to initial proceedings under its provisions. (135)

1. Appearance in Federal Court

Under TJAG Policy Number 15, Air Force judge advocates are permitted to appear in Federal Court under limited circumstances. Specifically, judge advocates are permitted to appear before U.S. magistrate judges and in U.S. District Courts as prosecutors in cases involving misdemeanors. (136) Judge advocates who appear in Federal Court are appointed as a Special Assistant U.S. Attorney under the provisions of 28 U.S.C. [section] 515 (a), 516, and 543. There are currently no provisions, directives or instructions that address judge advocates appearing in Federal Court for felony cases.

2. Terminating Representation

As Air Force attorneys, defense counsel representing civilian clients in MEJA initial proceedings will be required to follow the Air Force Standards for Criminal Justice and the Air Force Rules of Professional Conduct. (137) While useful in representing a military accused in a court-martial setting, the Air Force Standards, adapted from the American Bar Association Standards for Criminal Justice, offer no direct guidance relating to representing a nonmilitary accused for the sole purpose of an initial appearance.

Since military representation is to be for the initial appearance only, and not the whole of the trial proceedings, termination of the attorney-client relationship before conclusion of the prosecution is almost inevitable. Adapted directly from the American Bar Association Model Rules of Professional Conduct, the Air Force Rules provide that:

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, and surrendering papers and property to which the client is entitled. The lawyer may retain papers relating to the client to the extent permitted by other law. (138)

In accordance with this rule, following an initial proceeding, Air Force military counsel will be required to transfer papers and property to counsel in the United States who will likely represent the accused in the criminal trial. This process, for both client and counsel, might prove to be frustrating as well as time-consuming.

IV. CONCLUSION

The MEJA was designed to fill a jurisdictional gap, allowing for the criminal prosecution of civilian personnel accompanying U.S armed forces outside the United States. It can provide military commanders with a useful tool for deterring and prosecuting serious misconduct by dependents, civilian employees and DOD contractors at overseas locations. Since the Act is somewhat unique in authorizing extraterritorial jurisdiction over criminal conduct and in potentially invoking the use of armed forces personnel in supporting such international criminal arrest and prosecution, there are a variety of legal issues that need to be resolved before putting it into practice. Although Congress has filled the jurisdictional gap, implementing regulations, judicial decisions, and possibly further statutory direction will be required to fill the gaps in practical application. Until such times as these gaps have been filled, prosecuting civilians under the MEJA will present some definite challenges--otherwise known as opportunities for lawyers to exercise their creativity and reasoning skills.

(1.) 18 U.S.C. [section] 3261-3267 (2000).

(2.) See Major Susan E. Gibson, Lack of Jurisdiction Over Civilians: A New Look at an Old Problem, 148 MIL. L. R. 114 (1995).

(3.) 354 U.S. 1(1957).

(4.) 361 U.S. 234 (1960).

(5.) See S. 2007, 90th Cong. (1967); S. 1, 94th Cong. (1975); H.R. 255 99th Cong. (1985).

(6.) National Defense Authorization Act for 1996, Pub. L. No.104-106, [section] 1151, 110 Stat. 186 (1996).

(7.) REPORT OF THE ADVISORY COMMITTEE ON CRIMINAL LAW JURISDICTION OVER CIVILIANS ACCOMPANYING THE ARMED FORCES IN TIME OF ARMED CONFLICT (April 18, 1997) [hereinafter THE OVERSEAS JURISDICTION ADVISORY COMMITTEE REPORT]

(8.) S. 786, 106th Cong. (1999); H.R. 3380, 106th Cong. (2000).

(9.) See generally Mark J. Yost and Douglas S. Anderson, Current Development: The Military Extraterritorial Jurisdiction Act of 2000: Closing the Gap, 95 AM. J. INT'L L. 446 (2001); Captain Glenn R. Schmitt, The Military Extraterritorial Jurisdiction Act: The Continuing Problem of Criminal Jurisdiction over Civilians Accompanying the Armed Forces Abroad--Problem Solved?, 2000 ARMY LAW. 1 (2000).

(10.) See 18 U.S.C. [section][section] 3261 - 3267 (2000).

(11.) 18 U.S.C. [section] 3261(a) (2000).

(12.) Id.

(13.) 18 U.S.C. [section][section] 3262 - 3265 (2000).

(14.) 18 U.S.C. [section] 3266 (2000).

(15.) The term "special maritime and territorial jurisdiction of the United States" is defined in 18 U.S.C. [section] 7 (2000).

(16.) See THE OVERSEAS JURISDICTION ADVISORY COMMITTEE REPORT, supra note 7, at n.140 (providing a complete list of the then current offenses applicable in the special maritime and territorial jurisdiction of the United States).

(17.) 18 U.S.C. [section] 3261(a) (2000).

(18.) 18 U.S.C. [section] 3261(a)(2) and (d)(l) (2000).

(19.) See 18 U.S.C. [section] 3261(d)(2) (2000).

(20.) 18 U.S.C. [section] 3261(a)(1) (2000).

(21.) 18 U.S.C. [section] 3267(1) and (2) (2000).

(22.) 18 U.S.C. [section] 3266(b)(1) (2000).

(23.) U.S.C. [section] 3267(1) (2000).

(24.) Id.

(25.) 18 U.S.C. [section] 3267(1)(A) (2000).

(26.) 18 U.S.C. [section] 3267(1)(C) (2000).

(27.) U.S.C. [section] 3267(1)(B) (2000) (emphasis added).

(28.) 18 U.S.C. [section] 3267(2000).

(29.) 18 U.S.C. [section] 3267(2) (2000).

(30.) U.S.C. [section] 3267(2)(B) (2000).

(31.) 18 U.S.C. [section] 3267(2)(C) (2000).

(32.) 18 U.S.C. [section] 3261(b) (2000).

(33.) See 18 U.S.C. [section] 3261 (2000).

(34.) 18 U.S.C. [section] 3266(a) (2000) requires that the Secretary of Defense prescribe such regulations.

(35.) 18 U.S.C. [section] 3262(a) (2000). See infra text accompanying notes 110-11.

(36.) 18 U.S.C. [section] 3262(a) (2000).

(37.) 18 U.S.C. [section] 3262(b) (2000).

(38.) 18 U.S.C. [section] 3263(a) (2000).

(39.) 18 U.S.C. [section] 3263(a)(2) (2000).

(40.) 18 U.S.C. [section] 3263(a)(1) (2000).

(41.) 18 U.S.C. [section] 3263(a)(1) (2000).

(42.) 18 U.S.C. [section] 3263(b) (2000).

(43.) 18 U.S.C. [section] 3262(b) (2000). The MEJA does not specify who will pay for such travel. Financial reimbursement will need to be answered in an implementing DOD regulation or under the Economy Act, 31 U.S.C. [section] 1535 (1983).

(44.) 18 U.S.C. [section] 3264(a)(1) (2000).

(45.) See 18 U.S.C [section] [section] 3262(b), 3264(a) (2000).

(46.) See 18 U.S.C. [section] 3264(b) (2000).

(47.) See 18 U.S.C. [section] 3262(a)-(b) (2000).

(48.) 18 U.S.C. [section] 3142(f) (2000) requires a hearing based upon the Government's motion when the offense is punishable by death, is a crime of violence, involves drug offenses punishable by imprisonment for ten years or more, or if the suspect has two or more certain prior felony convictions. The hearing may also be required if the suspect is a serious flight risk or will attempt to obstruct justice or threaten a prospective witness or juror.

(49.) An order by the Federal magistrate judge to detain a person under 18 U.S.C. [section] 3 142(e) can only be made after the judge conducts a hearing under 18 U.S.C. [section]3142(f). 18 U.S.C. [section]3142(e). For information on 18 U.S.C. [section]3142(f), see supra note 48.

(50.) Forthcoming DOD regulations may provide further guidance, but this provision seems useful for small sites with no detention facilities or locations where combat operations make removal of suspects necessary.

(51.) 18 U.S.C. [section] 3264(b)(3) may offer a possible exception, potentially permitting removal to the United States without an overseas initial appearance before a Federal magistrate. FED. R. CRIM. P. 5(c) provides that a person is entitled to a preliminary examination for any offense, other than a petty offense that is to be tried before a judge of the district court. Presumably, all MEJA suspects will be entitled to a preliminary examination since, pursuant to 18 U.S.C. [section] 3261(a), they are felony suspects. (A preliminary examination is not required, however, if an information or indictment is filed in the district court before the date set for the preliminary examination. FED. R. GRIM. P. 5(c)). A preliminary examination must be conducted within a "reasonable time," not later than 10 days following initial appearance if the person is in custody and no later than 20 days following initial appearance if the person is not in custody. Id. If a preliminary examination were scheduled to occur before an initial appearance, it could result, under 18 U.S.C. [section] 3264(b)(3), in removal to the United States without there having been an initial overseas appearance before a Federal magistrate.

18 U.S.C. [section] 3264(b)(3) might also give the Government (rather than a Federal magistrate or the suspect) control over removal by virtue of the Government's discretion as to when to file an indictment. If the Government wants to remove a suspect to the United States, they could refrain from filing any indictment within 10 or 20 days, thereby necessitating a preliminary examination pursuant to FED. R. GRIM. p. 5(c). The suspect would then have to be removed in order to comply with FED. R. GRIM. P. 5(c), and 18 U.S.C. 3264(b) would allow it. Although suspects in this situation could avoid removal by waiving their preliminary hearing, they may well not know this as they are not entitled to counsel until their initial appearance.

(52.) See 18 U.S.C. [section][section] 3263, 3265(a)(1) (2000).

(53.) See 18 U.S.C. [section] 3265(a)(1)(B) (2000).

(54.) For treatment of the issues this raises, see infra Part III.C. of this article.

(55.) 18 U.S.C. [section] 3265(a)(2) (2000). The "initial appearance under the Federal Rules of Criminal Procedure" referred to in the MEJA, 18 U.S.C. [section] 3265(a), is apparently the probable cause hearing required under the Fourth Amendment to the United States Constitution when an arrest is made without a warrant. The Supreme Court in Gerstein v. Pugh, 420 U.S. 103 (1975), mandated that when an arrest is made without a warrant, a hearing by a neutral magistrate is required to determine if probable cause exists to believe that the suspect committed a crime. Since arrest authority under the MEJA (18 U.S.C. 3262) does not require a warrant from a neutral magistrate, such a probable cause hearing would be required for arrests under the MEJA.

The initial drafters of the proposed legislation were well aware of such a requirement. Their Report cites both Gerstein v. Pugh and County of Riverside v. McLaughlin, 500 U.S. 44 (1991) mandating that such a hearing be held within 48 hours of arrest. THE OVERSEAS JURISDICTION ADVISORY COMMITTEE REPORT, supra note 7, at nn. 188 and 189 (1997).

The initial drafters also recognized the significant practical difficulties of meeting the hearing requirement given the potential long distances and time zone differences between suspects arrested in foreign lands and United States courts and judges. Id. at p 64. The initial legislative proposal included a provision declaring that arrests made under the MEJA should be considered "extraordinary circumstances justifying delay [beyond the required 48 hours] in bringing the person before a magistrate..." Id. This proposed provision was not included in the final law.

(56.) 18 U.S.C. [section] 3265(a)(3) (2000); see 18 U.S.C. [section] 3142 (2000).

(57.) 18 U.S.C. [section] 3262(a) (2000) requires only designation of DOD law enforcement personnel by the Secretary of Defense, compliance with applicable international law, that the suspect is outside the United States and probable cause to believe the suspect violated 18 U.S.C. [section] 3261 (a) (2000).

(58.) FED. R. CRIM. P. 5(a).

(59.) 18 U.S.C. section 3265(a)(2); FED. R. CRIM. P. 5(a) (stating, "If a person arrested without a warrant is brought before a magistrate judge, a complaint, satisfying the probable cause requirements of Rule 4(a), shall be promptly filed.").

(60.) FED. R. CRIM. P. 5(c).

(61.) 18 U.S.C. [section] 3265(c) (2000).

(62.) 18 U.S.C. [section] 3265(c)(1) (2000).

(63.) 18 U.S.C. [section] 3265 (c)(2) (2000).

(64.) 18 U.S.C. [section] 3262(a) (2000).

(65.) 18 U.S.C. [section] 1385 (2000).

(66.) Id.

(67.) 10 U.S.C. [section] 375 (1998).

(68.) 18 U.S.C. [section] 1385 (2000).

(69.) 10 U.S.C. [section] 375 (1998).

(70.) See 18 U.S.C. [section] 3261 (2000).

(71.) See DOD Directive 5525.5, DOD Cooperation With Civilian Law Enforcement Officials, Enclosure 4, [paragraph] 4.1.2.5.

(72.) For other examples, see 18 U.S.C. [section] 351(g)(2000) ("Assistance may be requested from any Federal, State, or local agency including the Army, Navy, and Air Force, any statute, rule or regulation to the contrary notwithstanding"), 18 U.S.C. [section] 83l(e)(l)(2000) ("Notwithstanding section 1385 of this title ..."), 18 U.S.C. [section] 1116(d)(2000) ("... the Attorney General may request assistance from any federal, state or local agency, including the Army, Navy, and Air Force, any statute, rule, or regulation to the contrary, notwithstanding"); 18 U.S.C. [section] 1751(i)(2000) ("assistance may be requested from any Federal, State or local agency, including the Army, Navy, and Air Force, any statute, rule, or regulation to the contrary, notwithstanding").

(73.) 18 U.S.C. [section] 112 (2000).

(74.) 18 U.S.C. [section] 3262(a) (2000).

(75.) 10 U.S.C. [section] 976(a)(l) (1998) defines "member" of the armed forces as a member serving on active duty. 10 U.S.C. [section] 5001(a)(3) (1998) defines a "member" of the Navy as a person enlisted, appointed, inducted or conscripted into the Navy or Marine Corps.

(76.) See H.R. REP. No. 106-778, pt. 1, n.26 and accompanying text (2000) (stating that one of the individuals providing testimony was Mr. Roger Pauley of DOJ). Mr. Pauley's prepared statement included the following: "There may be instances in which the federal interest in offenses committed by such persons is so tenuous that the assertion of federal jurisdiction could raise constitutional due process concerns. Prepared statement of Mr. Roger Pauley on H.R. 3380, The Military Extraterritorial Jurisdiction Act of 2000, Before the House Judiciary Comm. Crime Subcomm. on March 30, 2000, n.6. See, e.g., United States v. Davis, 905 F.2d 245, 248-49 (9th Cir. 1990), cert. denied, 498 U.S. 1047 (1991); cf. United States v. White, 51 F. Supp.2d 1008, 1011 (E.D. Cal. 1997).

(77.) Prepared statement of Mr. Roger Pauley on H.R. 3380, The Military Extraterritorial Jurisdiction Act of 2000, Before the House Judiciary Comm. Crime Subcomm. on March 30, 2000, n.6.

(78.) See U.S. v. Klimavicius-Viloria, 144 F.3d 1249 (9th Cir. 1998), U.S. v. Davis, 905 F.2d 245 (9th Cir. 1990) and U.S. v. Peterson, 812 F.2d 486 (9th Cir. 1987). But see U.S. v. Martinez-Hidalgo, 993 F.2d 1052 (3d Cir. 1993) (rejecting the "nexus" requirement).

(79.) See U.S. v. Klimavicius-Viloria, 144 F.3d 1249 (9th Cir. 1998).

(80.) 444 U.S. 286 (1980). The First Circuit Court of Appeals has apparently accepted the requirement for "nexus," but finds due process satisfied when the international law principles of "territorial" or "protective" jurisdiction are satisfied. See U.S. v. Cardales, 168 F.3d 548 (1st Cir. 1999), cert. denied, 528 U.S. 838 (1999). International law also generally recognizes three other principles of criminal jurisdiction: national, universality and passive personality. See U.S. v. Felix-Gutierrez, 940 F.2d 1200, 1205 (9th Cir. 1991).

(81.) See International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

(82.) U.S. v. Corey, 232 F.3d 1166 (9th Cir. 2000).

(83.) U.S. v. Davis, 905 F.2d 245 (9th Cir. 1990).

(84.) FED. R. CRIM. P. 8.

(85.) 18 U.S.C [section] 3238 (1985). See also U.S. CONST. art. III, [section] 2 ("[B]ut when not committed within any State, the Trial shall be at such place or Places as the Congress may by Law have directed.").

(86.) 18 U.S.C. [section] 3238 (2000).

(87.) Forthcoming DOD regulations might resolve the issue of where an offender will first be brought. Although there is some indication that the place where a suspect is "brought" is where the plane lands, 18 U.S.C. [section] 3238, note 9 (2000), an alternative might be to "first bring" suspects to a designated location. For example, in the Pacific area, suspects could be "first brought" to Hawaii where both federal judges and U.S. Attorneys could be familiar with similar cases.

(88.) But see supra note 51 for an example of how removal might occur before an initial appearance.

(89.) Relying instead on an information/indictment filed in the District of Columbia for all cases brought under the MEJA would seem much more convenient as overseas military authorities would have one known point of contact, and Department of Justice personnel in that District could become specialists at efficiently applying the MEJA. (Indictment seems much more likely than information since FED. R. CRIM. P. 7(a) requires an indictment for any offense punishable by imprisonment for more than one year. Pursuant to 18 U.S.C. [section] 3261(a) (2000), the MEJA includes only offenses punishable by more than one-year imprisonment. Indictment can be waived by the defendant.)

(90.) 18 U.S.C, [section] 2365(a)(1) (2000).

(91.) FED. R. CRIM. P. 5.

(92.) Id.

(93.) 18 U.S.C. [section] 3265(a)(1) (2000).

(94.) 18 U.S.C. [section][section] 3262(a)(2) (2000).

(95.) 18 U.S.C.S. [section] 3181, History; Ancillary Laws and Directives (2000) provides a listing of those countries.

(96.) 18 U.S.C. [section]3262(a) (2000).

(97.) 18 U.S.C. [section] 3263(a)(2) (2000).

(98.) Cf: 10 U.S.C. [section] 814 (1998) and P.L. 100-456, [section] 721 (providing for "delivery" of service members from foreign countries to the courts of the United States without the need to follow extradition treaties).

(99.) See U.S. v. Alvarez-Machain, 504 U.S. 655, 664 (1992).

(100.) Id.

(101.) Although the U.S. federal law enforcement officers were responsible for the defendant's abduction to the United States, they did not personally carry it out. Id. at 657.

(102.) See id.

(103.) Id. at 658.

(104.) Id. at 664.

(105.) Id. at 666.

(106.) Id. at 669-70.

(107.) Id. at 669.

(108.) United States v. Alvarez-Machain does suggest that if Government agents lack any valid authority for forcibly abducting a suspect from a foreign country, they could be subject to that country's kidnapping laws. 504 U.S. at 665, n. 11; 669 n. 16.

(109.) Id. at 662, quoting Frisbie v. Collins, 342 U.S. 519, 522 (1952).

(110.) Memorandum Of Understanding Between the Ministry of Defense of the Republic of Italy and the Department Of Defense of the United States of America Concerning Use of Installations/Infrastructure by U.S. Forces in Italy, February 2, 1995.

(111.) Agreement Between the Parties to the North Atlantic Treaty Organization Regarding the Status of Forces, June 19, 1951, art. VII, [paragraph] 10, 4 U.S.T. 1792.

(112.) Extradition Treaty Between the Gov't of the United States of America and the Gov't of the Republic of Italy, Oct. 13, 1983, U.S.-Italy, 35 U.S.T. 3023.

(113.) Id. at art. II, [paragraph] 1. Extradition, under the current treaty, can be denied for solely political or military offenses. Id. at art. V, [paragraph][paragraph] 1, 3.

(114.) Id. at art. II, [paragraph] 1.

(115.) Id. at art. III.

(116.) Id. at art IX.

(117.) Id. at art. X. There is provision for a simplified extradition, allowing the person accused of the crime(s) to agree to extradition, ending any formal proceeding requirement. Id. at art. XVII.

(118.) Id. at art. XVI, [paragraph] 1(a).

(119.) FED. R. CRIM. p. 5(c). See supra note 51.

(120.) Department of Defense Directive 5525.9, Compliance of DOD Members, Employees, and Family Members Outside of the United States With Court Orders (27 Dec. 1988) [hereinafter DODD 5525.9]; Air Force Instruction 51-1001, Delivery of Personnel to the United States Civilian Authorities for Trial (21 July 1994) [hereinafter AFI 5 1-1001.] These regulations also deal with the return of military members as well as civilian employees and contractors.

(121.) 18 U.S.C. [section] 3261 (2000).

(122.) Id.

(123.) DODD 5525.9, supra note 120, [paragraph] 6.3.

(124.) Id.

(125.) Id. [paragraph] 6.4.

(126.) AFI 51-1001, supra note 120.

(127.) Id. [paragraph][paragraph] 10 & 14.

(128.) Id. [paragraph] 15.

(129.) Id.

(130.) 18 U.S.C. [section] 3265(c) (2000).

(131.) 18 U.S.C. [section] 3265(c)(1) (2000). Somewhat analogously, Air Force military members facing criminal charges in foreign courts are entitled to certain legal services from a military counsel known as a military legal advisor (MLA). Air Force Instruction 51-703, Foreign Criminal Jurisdiction, [paragraph] 7 (6 May 1994). MLAs are typically Air Force Area Defense Counsel who are appointed with the approval of their Chief Circuit Defense Counsel. Id. MLAs serve military members by providing them with information about any administrative action that could be taken against them, the rights they are guaranteed under applicable treaties and international agreements, and applicable DOD policies. Id. [paragraph] 8. While the lawyer-client privilege applies to all communications between the MLA and his client, id. [paragraph] 8.1, MLAs are not permitted to represent clients in foreign courts, although they may assist a foreign counsel. Id. [paragraph] 10. An MLA may advocate on behalf of a client when speaking with the client's commander, the Staff Judge Advocate and other United States officials. Id.

(132.) U.S. CONST. amend. VI.

(133.) See Johnson v. Zerbst, 304 U.S. 458, 463 (1938) (Sixth Amendment right to counsel in criminal proceedings withholds from federal courts "the power to deprive an accused of his life and liberty unless he has or waives the assistance of counsel"); see also Gideon v. Wainwright, 372 U.S. 335, 342 (1963) (Sixth Amendment right to counsel in criminal proceedings applies to states through the Fourteenth Amendment).

(134.) See e.g., Baldasar v. Illinois, 446 U.S. 222, 232 (1980) (noting that Gideon v. Wainwright, 372 U.S. 335, 342 (1963), which establishes the right to counsel in felony cases, does not control misdemeanor convictions).

(135.) 18 U.S.C. [section] 3265(b) (2000) (providing that a person arrested and charged with an offense under [section] 3261 (a) and who is not delivered to local authorities will have an initial appearance).

(136.) TJAG Policy Letter 18, Prosecution by Judge Advocates Before U.S. Magistrate Judges and in U.S. District Courts (February 4, 1998) (Office of The Judge Advocate General, Washington, D.C.). The authorization procedures for prosecution before magistrate judges is outlined in AFI 51-905, Use of Magistrate Judges for Trial of Misdemeanors Committed by Civilians, (1 June 1998).

(137.) TJAG Policy Number 26, Air Force Rules of Professional Conduct & Air Force Standards for Criminal Justice, Attachments 1 and 2 respectively (1998, Air Force Standards amended November 8, 1999) (Office of The Judge Advocate General, Washington, D.C.) [hereinafter Air Force Rules and Air Force Standards].

(138.) Air Force Rules, supra note 137, Rule 1.16(d).

* Mr. Fallon (B.S., United States Air Force Academy; J.D., University of Colorado) is a civilian attorney at Peterson Air Force Base, Colorado. He is a former active-duty Air Force judge advocate and a member of the Colorado State Bar.

** Captain Keene (B.A., Northern Arizona University; J.D.. Drake University) is an Assistant Staff Judge Advocate at Offutt Air Force Base, Nebraska. She is a member of the State Bar of Arizona. Special thanks to Lt Col Robert Christensen, 320th Air Expeditionary Group Security Forces Commander, who patiently reviewed this article while commanding the Desert Defenders at Eskan Village, Kingdom of Saudi Arabia.

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