Extended Exposure: Advising Veterans of Criminal Jurisdiction Over In-Service Conduct

Abstract

The Military Extraterritorial Jurisdiction Act of 2000 was primarily crafted to establish Federal criminal jurisdiction over civilians employed by or accompanying the Armed Forces outside of the United States. This includes civilian employees, contractors and subcontractors, and employees of contractors and subcontractors. It also includes their dependents. The Act amended Title 18 of the United States Code, not by adding new sections to the Crimes covered there, but by establishing jurisdiction over felony offenses committed outside United States territorial jurisdiction. In addition to establishing jurisdiction over civilians, the Act also extended Federal criminal jurisdiction to former members of the Armed Forces who are no longer subject to the Uniform Code of Military Justice. On June 4, 2014, former United States Marine Corporal Wilfredo Santiago was convicted of making false statements to investigators about his involvement in an accidental, non-fatal shooting of Navy Hospital Corpsman Michael John Carpeso in Iraq. The shooting occurred more than six years before Santiago was convicted and almost five years before he was indicted. Santiago admitted his involvement in the shooting, and the Naval Criminal Investigative Services fully investigated the incident while Santiago was still on active duty. However, Santiago was not court-martialed before he was separated from the service. Santiago was honorably discharged from the Marine Corps. Asserting jurisdiction under MEJA, the U.S. Attorney’s Office indicted Santiago in the Southern District of New York in January, 2013.The nature of Corporal Santiago’s prosecution, which involved an honorably-discharged service member whose conduct was known and fully investigated while he could be court-martialed, has caused some to seriously question MEJA’s continued use against former service members. Southern District of New York Judge Colleen McMahon said that civilian jurisdiction over former service members outside the reach of court-martial “came as a great surprise” to her. For Veterans’ advocates focused primarily on disability compensation, not criminal prosecution, their clients’ extended exposure under MEJA could be equally as unexpected. The prosecution of former Corporal Santiago, as well as other former members of the Armed Forces, stands as a warning to broaden our awareness beyond substantiating eligibility for benefits and services. Unless the Act is modified, Veterans’ advocates must be aware that recently returned Veterans — even those receiving honorable discharges — may be prosecuted in civilian courts for in-service conduct committed while in uniform overseas.