ANSWER:
THIS DEPENDS ON TWO THINGS. FIRST, WHERE DID THE CRIME OCCUR? WAS IT AN
AREA OF EXCLUSIVE, CONCURRENT, OR PROPRIETARY JURISDICTION?
SECOND, IT
DEPENDS ON THE CRIME THAT WAS COMMITTED.
REMEMBER, SOME FEDERAL CRIMES
APPLY NATIONWIDE.
QUESTION:
IF THE OFFENDER IS A CIVILIAN, CAN WE COURT-MARTIAL HIM?
ANSWER:
NO.
THE SUPREME COURT HAS HELD THAT WE CANNOT COURT-MARTIAL CIVILIANS,
EXCEPT DURING DECLARED WARS.
QUESTION:
WHAT, THEN, DO WE DO WITH SUCH A CIVILIAN?
ANSWER:
APPREHEND HIM AND TURN HIM OVER TO THE APPROPRIATE CIVIL AUTHORITIES.
QUESTION: OVERSEAS, WHAT HAPPENS IF THE HOST NATION ALSO WANTS TO PROSECUTE?
ANSWER:
IF THE TERRORIST IS A CIVILIAN WHO IS NOT ACCOMPANYING THE US FORCES, THE
SOFA WOULD NOT APPLY.
INSTEAD, HE WOULD BE SUBJECT TO TRIAL BY THE
CAPTURING NATION OR, IF THERE IS AN EXTRADITION TREATY BETWEEN THE US AND
THE CAPTURING NATION, WE COULD ASK FOR EXTRADITION OF THIS TERRORIST FOR
TRIAL IN AN APPROPRIATE FEDERAL COURT IN THE UNITED STATES.
IF THE
TERRORIST IS A CIVILIAN ACCOMPANYING THE US FORCES, HE WOULD ALSO BE
SUBJECT TO TRIAL BY THE CAPTURING NATION OR BEING EXTRADITED TO THE UNITED
STATES FOR TRIAL.
QUESTION:
CAN THE MILITARY RESPOND TO AN OFF-POST TERRORIST ATTACK IN THE U.S.?
ANSWER:
SUCH A SITUATION IS REGARDED AS A FORM OF CIVIL DISTURBANCE (FC 100-37,
PARAGRAPH 4-4a).
WE COULD LOAN THE STATE EQUIPMENT, AS THIS IS NOT
CONTRARY TO THE POSSE COMITATUS ACT (TRADOC PAM 525-37, PARAGRAPH 3-4(Aa)
3).
ACTUALLY FURNISHING MILITARY TROOPS TO CONTAIN THE SITUATION,
HOWEVER, NORMALLY REQUIRES A REQUEST FROM THE GOVERNOR OF THE STATE AND A
PRESIDENTIAL PROCLAMATION (FM 19-15, CHAPTER 3).
THERE IS AN EMERGENCY
EXCEPTION WHICH "AUTHORITIES PROMPT AND VIGOROUS FEDERAL ACTION" TO
PREVENT LOSS OF LIFE OR WANTON DESTRUCTION OF PROPERTY AND TO RESTORE
GOVERNMENTAL FUNCTIONING AND PUBLIC ORDER.
THE SAME IS TRUE FOR THE
"PROTECTING OF FEDERAL PROPERTY AND FUNCTIONS." IN EITHER CASE, THE
SITUATION MUST BE BEYOND THE CAPABILITY OF THE LOCAL CIVILIAN AUTHORITIES
TO HANDLE (AR 500-50, PARAGRAPH 2-4). THIS NORMALLY REQUIRES PRESIDENTIAL
APPROVAL, UNLESS THE EMERGENCY IS SO ACUTE THAT IT WOULD BE DANGEROUS TO
WAIT FOR GUIDANCE FROM HIGHER AUTHORITY (AR 500-50, PARAGRAPH 2-4a).
QUESTION:
WHAT IF THE TERRORIST INCIDENT OCCURS ON POST?
ANSWER:
REMEMBER, THE MILITARY TAKES IMMEDIATE ACTION TO PREVENT LOSS OF LIFE OR
MITIGATE PROPERTY DAMAGE. THE FBI IS DESIGNATED AS THE "LEAD AGENCY" FOR
CONUS INCIDENTS.
MP1018
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