Notice of Intent

Floor Speech

Mr. GRASSLEY. Mr. President, I would like to alert my colleagues that I intend to object to any unanimous consent agreement for the consideration of S. 1145, the Civilian Extraterritorial Jurisdiction Act, CEJA. While I joined in supporting a vote to report S. 1145 out of the Judiciary Committee, my vote does not signal my support for the legislation in its current form. Unless changes are made to address my concerns with the legislation, I will continue to object.

I oppose S. 1145 in its current form because it does not include a sufficient carve-out for intelligence, law enforcement, or protective assignments by U.S. Government employees abroad. The current version of S. 1145 does include a carve-out for intelligence activities, but the current version of the intelligence carve-out is problematic. There is repetition in the language and extraneous language is unnecessary. Further, under the current carve-out an intelligence agent may not be protected from prosecution, even though he was authorized to undertake an operation. The current provision in the bill would require that a supervisor's directive be authorized and also be ``consistent with applicable U.S. law.'' This extra requirement opens up a world of questions. How should an agent in the field know his supervisor's instruction was ``consistent with applicable U.S. law''? Will this provision now require agents to obtain a legal opinion before they take action? This is not the message we should be sending to the agents in the field.

Instead, I proposed a carve-out in the Judiciary Committee that would exclude government employees performing intelligence, law enforcement, and protective assignments abroad. This version was based upon existing U.S. law that some members of the Judiciary Committee previously supported. If the carve-out I proposed is good enough for employees operating inside the United States, it should be good enough for those operating abroad. Why would we give agents operating in the U.S. more protections than those operating in foreign lands?

Further, the current carve-out in S. 1145 is not the preferred language that the intelligence community proposed at the beginning of negotiations. If past is any prologue, this appears to be yet another instance where the intelligence community is settling for language it can ``live with'' as opposed to the optimal language it should be seeking. This same problem occurred in negotiations during consideration of legislation extending the three expiring provisions of the USA PATRIOT Act. Ultimately, extraneous language that would have restricted the ability of law enforcement and the intelligence community was removed from the extension of the PATRIOT Act authorities and a similar outcome should occur on CEJA.

I also oppose S. 1145 in its current form because the legislation does not currently include the Unborn Victims of Violence Act, UVVA, in the list of covered offenses that would apply to crime victims abroad. The UVVA applies to violent Federal crimes in the United States, and to employees and contractors of the Department of Defense abroad under the Military Extraterritorial Jurisdiction Act. There is no reason that extending the long arm of Federal criminal law expanded under CEJA should exclude the UVVA.

No one would dispute the importance of holding government employees and contractors accountable abroad. I support the idea of this legislation because we should never have government employees or contractors committing serious crimes like rape or murder abroad with impunity. However, we need to think long and hard about the consequences of our actions if we legislate criminal extraterritorial jurisdiction too broadly absent a sufficient carve-out for authorized intelligence, law enforcement, and protective activities.

Until these concerns are addressed and further changes are included in the bill, I support holding this legislation on the Senate floor. No one should take my support for reporting this bill out of committee to mean anything more than an expression of my willingness to work with the sponsors on this topic to address these concerns going forward.

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