[House Hearing, 110 Congress]
[From the U.S. Government Printing Office]
ENFORCEMENT OF FEDERAL CRIMINAL LAW TO PROTECT AMERICANS WORKING FOR
U.S. CONTRACTORS IN IRAQ
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
DECEMBER 19, 2007
Serial No. 110-130
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
Subcommittee on Crime, Terrorism, and Homeland Security
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
MAXINE WATERS, California LOUIE GOHMERT, Texas
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
JERROLD NADLER, New York F. JAMES SENSENBRENNER, Jr.,
HANK JOHNSON, Georgia Wisconsin
ANTHONY D. WEINER, New York HOWARD COBLE, North Carolina
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
ARTUR DAVIS, Alabama DANIEL E. LUNGREN, California
TAMMY BALDWIN, Wisconsin
BETTY SUTTON, Ohio
Bobby Vassar, Chief Counsel
Michael Volkov, Minority Counsel
C O N T E N T S
DECEMBER 19, 2007
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 1
The Honorable Louie Gohmert, a Representative in Congress from
the State of Texas, and Ranking Member, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 21
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Chairman, Committee on the
The Honorable Hank Johnson, a Representative in Congress from the
State of Georgia, and Member, Subcommittee on Crime, Terrorism,
and Homeland Security.......................................... 23
The Honorable Sheila Jackson Lee, a Representative in Congress
from the State of Texas, and Member, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 24
The Honorable Tammy Baldwin, a Representative in Congress from
the State of Ohio, and Member, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 26
The Honorable Anthony D. Weiner, a Representative in Congress
from the State of New York, and Member, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 26
The Honorable Ted Poe, a Representative in Congress from the
State of Texas
Oral Testimony................................................. 30
Prepared Statement............................................. 31
Ms. Jamie Leigh Jones, former employee of Kellogg Brown and Root
(KBR), Houston, TX
Oral Testimony................................................. 32
Prepared Statement............................................. 35
Mr. Scott Horton, Adjunct Professor of Law, Columbia University
School of Law, New York, NY
Oral Testimony................................................. 50
Prepared Statement............................................. 51
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of Tracy Barker............................... 3
Prepared Statement of the Honorable Linda T. Sanchez, a
Representative in Congress from the State of California, and
Chairwoman, Subcommittee on Commercial and Administrative Law.. 28
Material Submitted for the Hearing Record........................ 73
ENFORCEMENT OF FEDERAL CRIMINAL LAW TO PROTECT AMERICANS WORKING FOR
U.S. CONTRACTORS IN IRAQ
WEDNESDAY, DECEMBER 19, 2007
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
The Subcommittee met, pursuant to notice, at 10:23 a.m., in
room 2141, Rayburn House Office Building, the Honorable Robert
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
Present: Representatives Conyers, Scott, Johnson, Weiner,
Jackson Lee, Davis, Baldwin, Gohmert, Coble, Chabot, and
Staff present: Bobby Vassar, Subcommittee Chief Counsel;
Ameer Gopalani, Majority Counsel; Mario Dispenza, (Fellow) ATF
Detailee; Veronica Eligan, Majority Professional Staff Member;
Michael Volkov, Minority Counsel; Caroline Lynch, Minority
Counsel; Kelsey Whitlock, Minority Staff Assistant.
Mr. Scott. The Subcommittee will come to order. Welcome to
the Subcommittee on Crime, Terrorism, and Homeland Security
hearing on Enforcement of Federal Criminal Law to Protect
Americans Working for U.S. Contractors in Iraq.
Ladies and gentlemen, we have a situation in which many
military contractors are acting with impunity and disregard for
In Iraq, our troops have been supplanted in many respects
by an army of contractors that is estimated to be approximately
This is in stark contrast to the normal number of
contractors, which is 2 percent, 3 percent, 4 percent, 5
percent of the troop force. Fifty percent of the Americans over
in Iraq right now are contractors. About 50 percent are formal
Unfortunately, the law governing the contractors has been
unclear. In September, we learned of a shooting incident
involving a private contracting company in which contractors
allegedly shot and killed 11 or more innocent Iraqi civilians.
We learned of hundreds of other shooting incidents that,
unlike the other one, did not receive media attention and have
Sexual assault and rape incidents have also been uncovered
recently. Just last week we learned of the case of Jamie Leigh
Jones, who, while working for an apparently prestigious and
reputable contracting firm, states that she was drugged and
raped by fellow employees in a company facility in Baghdad.
Without her courage to go forward, it is likely that this
would have been another story which would have gone without
prosecution or investigation.
And her story has encouraged other women to come forward.
We are now aware of at least three other cases of such abuse,
but there are likely many more.
One of those cases is Tracy Barker, whose statement, if
there is no objection, will be made part of the record. Without
objection, her statement will be part of the record. A copy of
her statement will be at the front table, if it is not already
there. And she is with us today in the front row.
[The prepared statement of Ms. Barker follows:]
Prepared Statement of Tracy Barker
Mr. Scott. First, there continues to be a lack of
transparency, and the most poignant sign of the problem is the
Department of Justice's absence here today.
We had a hearing, in fact, on this issue back in June. We
learned that 17 pending cases of detainee abuse, including the
abuse at Abu Ghraib prison by contractors, have remained with
the U.S. Attorney's Office in the Eastern District of Virginia
for 3 years.
In some of these cases the Army has investigated
circumstances behind them and has found probable cause that a
crime has been committed and referred the case to the
Department of Justice for prosecution.
We are not told why these cases against contractors have
not been investigated or why they are being held up.
In response to our concerns, we marked up a bill, H.R.
2740, the MEJA Expansion and Enforcement Act of 2007, which
would require the Inspector General of the Department of
Justice to complete and submit a report about identification
and prosecution of alleged abuses in Iraq. This bill has passed
the House but has not been acted upon by the Senate.
In the case we will hear about today, the department has
remained silent for over 2.5 years regarding the status of the
criminal investigation. Why has it taken this long for the
department, in what should for the department be a routine and
swift rape investigation?
Second, there are a number of laws the department can
enforce with respect to contractors who commit crimes abroad,
but it chooses not to. These include the Military
Extraterritorial Jurisdiction Act, the Patriot Act and the
Special Maritime and Territorial Jurisdiction Act.
There is nothing to believe that the incidents before us
are not covered by present law, and the department has even
informed us that many provisions of existing law do permit
The bill I mentioned, H.R. 2740, would close the loophole
to cover all private security contractors, not just those
contracted through the Department of Defense, to ensure that
all contractors overseas are accountable under United States
But in the situation we will hear about today, the
contractor was a DOD contractor, so there should be no question
Finally, there is no mechanism in place to ensure
appropriate investigation of crimes. In fact, we have heard of
many instances in which the Department of Justice and the FBI
failed to get directly involved once crimes are alleged.
For example, FBI agents only flew out to Baghdad to
investigate the September 16th Blackwater incident after
sufficient congressional pressure and media coverage. We need
to know how long after the alleged shooting were they notified
of the incident.
How long after Ms. Jones' allegations occurred were the FBI
notified, and what steps were taken?
H.R. 2740 requires the FBI to establish on-the-ground
investigative units in Iraq to investigate reports of criminal
But the Department of Justice has balked at this idea and
apparently does not support its inclusion in any bill, even
though it has the current authority to create such units on its
The Department of Justice seems to be taking action with
respect to enforcement of criminal laws in Iraq only when it is
forced to do something by embarrassing media coverage.
Our government is entrusted with the responsibility to
oversee contractors in Iraq and most certainly bears the burden
to protect innocent American civilians.
I hope this hearing will identify the reason why this is
With that said, it is my pleasure to recognize the Ranking
Member of the Subcommittee, the gentleman from Texas, Judge
Mr. Gohmert. Thank you, Chairman Scott. And I do appreciate
your holding this hearing. This is a very important issue.
And I want to thank our witnesses for taking time out of
their busy schedules to be with us today.
Professor Horton, thank you.
And especially want to welcome my good friend, dear friend,
and fellow former district judge from Texas, Congressman Ted
And also, Ms. Jones, thank you for being here and for
graciously agreeing to share your story. I admire your courage
in coming forward. I know this is not easy to come into a
public forum and do this.
Ted, we have seen people have to do this kind of thing in
order for justice to be done, and we believe that by your doing
so, hopefully we will move justice in the right direction.
But you have also given a voice to women who have been the
victims of sexual assault in Iraq and also Afghanistan. And I
hope today's hearing will shed additional light on the
disturbing trend of American women being victims of sexual
assault outside our national boundaries.
I am deeply troubled by what happened to you in Iraq. No
one should have to suffer that kind of abuse.
And now, after 2 years, we are hearing--and I got an e-mail
today indicating that the Justice Department could not come
forward and testify today because the matter is finally under
And I applaud any efforts Attorney General Mukasey will
make in that direction. We have got a new regime and it looks
like they are finally moving in the right direction.
The members of this panel are not privy to all the details
about what, if any, investigation has occurred. According to
news accounts, the State Department's Bureau of Diplomatic
Security investigated the assault, turned its findings over to
the Department of Justice. And like I say, they are now
assuring us that they are investigating the matter.
At the same time, we are learning that KBR may have been
instructed by the U.S. government to cease its investigation,
but we don't know who gave that instruction.
It also appears that physical evidence of the assault was
subsequently lost or destroyed. I hope it is not too late to
see justice done in this case. No one is above the law. No one
should be above the law, whether here in the United States or
In recent years, Congress has addressed the application of
Federal criminal laws to U.S. persons overseas. In 2000,
Congress passed the Military Extraterritorial Jurisdiction Act
of 2000, also referred to as MEJA, to extend the application of
U.S. Federal criminal law to acts committed by members of the
military, civilian employees of the military and dependents
accompanying the armed forces overseas.
Congress again amended MEJA in 2005 to apply it to
employees and contractors only ``to the extent such employment
relates to supporting the mission the Department of Defense
The authority of the U.S. government to prosecute the
assault of Ms. Jones turns on whether those accused of the
attack were employed in support of a DOD mission overseas.
There seems to be some dispute amongst the expert about
whether MEJA applies in this instance. But the simple fact is
that we don't have enough facts to make the determination yet.
In October, the House passed H.R. 2740, the MEJA and
Enforcement Act of 2007. This legislation expands MEJA again to
allow U.S. criminal prosecution of all Federal contractors
operating in an area or in close proximity to an area where the
armed forces are conducting a ``contingency operation,'' and
requires the FBI to establish overseas theater investigative
units in areas where contractors are operating.
Hopefully, the Senate will act quickly on this legislation.
But I look forward to hearing from today's witnesses and
appreciate your time in being here.
Thank you. I yield back.
Mr. Scott. Thank you.
The Chairman of the full Committee, Mr. Conyers?
Mr. Conyers. Good morning, Chairman Scott and Members.
I join all in welcoming our friends here, Jamie Leigh Jones
and Tracy Barker, sitting in the first row.
Congressman Ted Poe, thanks for all you have done.
This is outrageous that we even have to be here today. And
it illustrates, in my judgment, how far out of control the law
enforcement system in Iraq is today.
The story that we will hear truly shocks the conscience and
shows how out of whack our priorities have become.
When a brave public-spirited individual working in support
of her country in Iraq, like Ms. Jones, can be brutally raped
by her fellow employees, this is something that demands our
immediate attention. And I am so glad that at least we are
moving on this immediately.
When the biggest contractor in Iraq, a large and, at one
time, respected firm, can compound and worsen the situation,
going as far as to falsely imprison her, this is a tragedy.
And when our own Department of Justice can and does fail to
take action, while the apparently miscarriage of justice is
allowed to fester, this is a public outrage that demands these
hearings and investigation.
Does anyone in this room feel it is acceptable for an
American citizen like Ms. Jones to be drugged, raped and
Does anyone think it is appropriate that almost 2.5 years
after the incident there hasn't been a single prosecution in
Is there anyone here that thinks it is appropriate that the
Department of Justice victims' rights ombudsman summarily
rejected Ms. Jones' complaint 6 months ago, and she was not
even seen by a Federal prosecutor until October?
This is no small matter, given that there are 180,000
civilian contractor employees in Iraq, including more than
21,000 Americans, plus additional security contractor
employees. We have got more civilians over there than military.
And there are other troubling reports of similar sexual
assaults against contractor employees. So that is why I am here
to tell you that this Committee's investigation will not end
It is unacceptable for our own Department of Justice to
refuse to testify today. The letter they sent last night does
not begin to respond to the tragedy and injustice that we are
looking at now.
The department claims to be committed to law enforcement in
Iraq. But they tell us nothing about what is being done in Ms.
Jones' case. They can't even give us one example of a
prosecution where the victim was a civilian contractor employee
And they can't describe any steps they have taken to ensure
that such Americans in Iraq report crimes by contractor
employees there to Federal law enforcement and that prompt
investigation and prosecution will occur.
The American people and this Committee have the right to
demand justice and accountability. And I, for one, intend to
see that that is exactly what we get.
Thank you, Mr. Chairman.
Mr. Scott. Thank you, Mr. Conyers.
We will have statements from other Members.
The gentleman from Ohio waives.
The gentleman from Georgia?
Mr. Johnson. Thank you, Mr. Chairman. I would like to,
first of all, thank you for promptly responding to this rapidly
and publicly unfolding drama that first came to public
attention, I believe, approximately 1 week ago.
And here we are today holding oversight hearings in
Congress. And I think that this is what makes us proud to--this
is what makes me proud to serve in Congress.
And of course, under the auspices of our Chairman, who has
set the pace for this kind of vigorous oversight, Chairman
Conyers, we want to thank you.
And I also want to thank all of the witnesses for coming
today, especially to Ms. Jamie Leigh Curtis (sic), for what you
have endured and for coming here to tell us your story.
Mr. Scott. Jamie Leigh Jones.
Mr. Johnson. Excuse me. Did I say Jamie Leigh Curtis? Jamie
Leigh Jones. Okay, I am sorry. All right. Jamie Leigh Jones.
And I want to also point out that Ms. Tracy Barker is here,
who is another victim of similar activity that was undergone by
And also here are the attorneys representing both victims.
Mr. L. Todd Kelly and Mr. Paul Walton are from Houston, Texas.
And also, Stephanie Morris of Washington, D.C.
And this is a case against Halliburton which actively
concealed both of these egregious violations of the criminal
law and then engaged in a coverup to keep these issues from
ever seeing the light of day in criminal court.
And these issues have continued to this day. And for that
reason alone, it would seem that both victims would be able to
come into civil court and prosecute their claims for justice in
front of a jury.
Unfortunately, the issue of pre-dispute binding mandatory
arbitration arose when they attempted to seek redress. And
these types of hidden clauses in employment agreements strip
citizens of their basic rights to a jury trial.
Arbitration agreements were meant to be agreements between
equal parties. But for Ms. Jones, Ms. Barker and the countless
other employees who have tried to exercise their rights under
these agreements, they turn out to be anything but equal.
Companies have taken advantage of employees by forcing them
to sign away their rights to a public justice system in favor
of a private, for-profit justice system where the chips are
stacked against them and where the arbitrator, playing judge
and jury, typically sides with the big business that signs his
or her paycheck.
With over 180,000 civilian contractors in Iraq, our Federal
laws must protect those who are working for our government. We
should be protecting them.
And we should have protected you, Ms. Jones, criminally,
and you should have the protection of the civil laws here in
America as well.
I am hopeful that the Senate can move forward on H.R. 2740,
the MEJA Expansion and Enforcement Act of 2007, which would
close the loophole to ensure that all contractors are
accountable under U.S. criminal law and mandates that the
Department of Justice, through the FBI, enforce this bill by
investigating and prosecuting offenses under the law.
But we also need to understand how pre-dispute mandatory
arbitration agreements are contracts of adhesion and they
affect the ability of victims, especially those who are unable
to seek criminal penalties, from seeking civil damages when
they have been truly wronged.
I also want to thank Representative Ted Poe, who took
prompt action when notified by the father of Ms. Jones and was
able to get Ms. Jones out of harm's way, out of the Green Zone
in Iraq, and is here to testify today.
And I thank you, sir, for your service to the country.
And with that, I will yield back.
Mr. Scott. Thank you.
I would recognize Members for brief statements if possible.
In order of appearance, the gentlelady from Texas? I
understand you had a brief statement.
Ms. Jackson Lee. Let me say good morning to my colleague
from Texas and to Ms. Jones and to Professor Horton. Thank you
very much for being here.
I think it is the evidence of this place being the people's
house that we responded so quickly.
And I thank the Chairman of the Subcommittee and the
Chairman of the full Committee for their promptness in this
I am holding the Constitution in my hand, Ms. Jones,
because I want you to know that your leaving the boundaries of
the United States does not quash or deny your constitutional
rights. Protection under this document goes to you wherever you
And particularly, the Sixth Amendment indicates that there
is a right to a jury trial. You have a right to see those who
perpetrated this heinous and outrageous violent act against you
tried by a jury and, frankly, convicted, from the very actor to
the corporation, with enhanced penalties.
So I am grateful that you are here today. And I want to
tell you just a brief story in my brief comments. Just a few
weeks ago, I sat in the airport. I met a young lady who was en
route to Houston with all of the joy and excitement of her
first time leaving her community in Georgia, getting on an
airplane, leaving three children behind to be raised by her
mother, to join the staff in Houston of the company that you
She was on her way, or is on her way, Congressman Poe, to
Iraq. She had a sense of pride.
And so what I would say to those who are here today--you
are a patriot. You are a hero. You are willing to sacrifice
because you were moved by the cause, by the need, to go to Iraq
and to serve your country. You deserve better.
And I am grateful that Congressman Poe, as recognized in
representing you, you are--your dad is his constituent, and he
made good on the promise that we make coming to the United
States Congress. The people's house represents the people.
And so it is disappointing to find out that there is an
empty chair sitting there--has taken an oath. The attorney
general, Department of Justice--those officers there take an
oath to protect the American public.
Unfortunately, with people not prosecuted, they have, in
fact, not taken seriously their oath.
I, too, hope that the legislation moves forward. But as
representatives or contractors to the Defense Department, we
may need to look more extensively at the punitive measures
against corporations that don't understand the rights of
Americans and patriots and heroes who work for them.
Let me lastly say that I hope Congressman Poe will share
with us his involvement or his inquiry to Halliburton and KBR.
There is a suggestion that Halliburton was not involved.
I would like to hear whether you engaged with either of
those or together, those corporations, and what their response
So let me simply close by saying the flag does not leave
you when you leave this country. And the fact that you were
abused and violated--and the women that are with you, and your
lawyers who are here representing you--and incarcerated is a
damnation to the values of the country.
And as we sit here today, I promise you, as I join the full
Committee Chair, we will find a solution on behalf of you, who
have served this country and can be considered a patriot and a
Thank you very much. I yield back.
Mr. Scott. Thank you.
The gentleman from California?
Mr. Lungren. No, I am here to hear the witnesses.
Mr. Scott. Thank you, here to hear the witnesses.
The gentlelady from Wisconsin?
Ms. Baldwin. Thank you, Mr. Chairman.
Chairman Scott and Ranking Member Gohmert, I want to
express my appreciation for your holding this important and
timely hearing on U.S. contractors in Iraq.
And I particularly want to thank our panel of witnesses
today, and particularly you, Ms. Jones, for being here and
providing testimony here today.
I also appreciate your admirable work with the Jamie Leigh
foundation, because you are helping other Americans who are
victims of sexual assault, sexual harassment and abuse while
And I can only imagine what a difficult experience this has
been for you, and I want you to know how much we appreciate
your efforts to shed light on such an appalling and, frankly,
Americans abroad should have the same protections under the
law that they receive here in this country. And U.S. civilians
who perpetrate crimes while working abroad should be held
accountable for their actions just like they would if they were
here at home.
This concept seems so simple that I am having trouble
understanding how our government has failed this pitifully in
helping Americans like Ms. Jones find justice.
In light of the Blackwater shootings and other serious
incidents in Iraq, the fact that there has been no a single
completed prosecution of a crime involving a contractor
implicated in violent crime in Iraq is inexcusable.
The lack of accountability and oversight has apparently
contributed to an environment of lawlessness among those
serving as contract employees for the U.S. government.
And despite what I have to presume are appropriate internal
policies aimed at preventing these atrocities, Ms. Jones and
other former Halliburton and KBR employees have described a
boys-will-be-boys environment that devastated their experiences
Nobody at Halliburton and KBR has yet responded effectively
to multiple allegations of sexual assault and ongoing
harassment. Instead, there was an attempted coverup.
I am saddened to think that this unacceptable boys-will-be-
boys attitude appears to have permeated our government agencies
We have applicable laws in place, but our Department of
Justice seems unwilling to enforce them.
And, Mr. Horton, I agree with your assessment in your
written comments of the department's attitude of official
Again, I want to thank our witnesses for being here today
to help us do a better job of making sure that these situations
never occur again.
Thank you. I yield back.
Mr. Scott. Thank you.
The gentleman from New York?
Mr. Weiner. Thank you, Mr. Chairman, and I want to thank
you for holding the hearing.
You know, this is a remarkable example of how we sometimes
react to things when we are fortunate enough to hear about them
but have no idea how deep the roots of the problem go.
If we had not had someone like Ms. Jones, with remarkable
strength, to take her breathtaking adversity and try to get
some attention for it, had she not had the wisdom or her family
not had the wisdom to reach out to her congressman, we might be
reading about this in a postage stamp-sized dispatch in our
We don't know, as Ms. Baldwin just pointed out, how many
dozens and dozens of cases like this might exist in this seam
that exists in the law.
And while Professor Horton is going to talk with erudition
about the fine points of the law and how we can improve it,
let's not forget one overarching thing. The people that
committed this crime were our employees, employees of the
taxpayers of the United States of America.
We might have hired someone who was not wearing the uniform
of the United States of America, but it doesn't make us any
less accountable for the actions that they took.
We sign their paychecks. We sign the contracts that put
them on duty. We should be the ones setting the laws and
The abject indifference of the Department of Justice, as
exemplified by the opening remarks of Mr. Conyers and by their
absence today, shows what their approach to this problem is. It
is more or less ``it ain't our problem,'' is what they are
We here on the House Judiciary Committee are saying that as
Members of Congress, it is our responsibility. Ms. Jones has
been victimized more than one time. She was victimized,
obviously, in the horrific crime.
She was victimized again when the reasonable course of
justice was disrupted by a comprehensive effort to destroy
evidence that might have existed, disperse people who might
have been able to testify about it.
She was victimized again by the Department of State and
Department of Justice essentially throwing up their hands and
saying, ``You have got a contract. Go try to enforce it in a
And we are here to say that, you know, there is a higher
imperative here. You know, there are frequently the
explanations from the Administration that say, ``Look, war is
hell. Things happen. There is the fog of war that sometimes
But this now seems to be an organized effort by the United
States of America not to have responsibility and expressing
that by hiring these outside contractors to do not only the
dirty work of war, which some of us find necessary, but also
they wash their hands of the dirty deeds that go on. And we
have to say that enough is enough.
And I want to conclude the way I began, by expressing, I
think, all of our gratitude to you, Ms. Jones. You know, it
takes a remarkable amount of courage to go through what you did
and not simply return to your home and try to heal yourself.
You chose not to do that. You brought this forward here.
Unfortunately, in the echo chamber of information that we
have nowadays, without the face and the voice of someone who
has actually been through it, none of these things get changed.
Hopefully, you will change that today. Hopefully,
Congressman Poe, by bringing this forward, has made that
And hopefully, this Committee's actions will lead us to
finally, as a Nation, say not, ``Tsk tsk, it is a shame what
goes on,'' but that, ``We as the United States of America are
And I thank you, Mr. Chairman.
Mr. Scott. Thank you, Mr. Weiner.
I ask unanimous consent that a statement from the Chair of
the Subcommittee on Commercial and Administrative Law, the
gentlelady from California, Ms. Sanchez, be entered into the
As Chair of that Committee, she has been dealing with the
issue of mandatory arbitration, and her statement relates to
that issue. Without objection, so ordered.
[The prepared statement of Ms. Sanchez follows:]
Prepared Statement of the Honorable Linda T. Sanchez, a Representative
in Congress from the State of California, and Chairwoman, Subcommittee
on Commercial and Administrative Law
Mr. Scott. We have a distinguished panel of witnesses here
to help us consider the important issues of the day.
Our first witness was to be a representative of the U.S.
Department of Justice, but in a letter sent to us just last
night they have declined to testify.
They cite the fact that there is a pending investigation on
these allegations that we will hear today. And as the Ranking
Member has properly pointed out, we do not expect the
Department of Justice to testify on specific cases under
But they failed to inform us as to why they could not
appear to discuss other contractor crimes generally in Iraq
which are not undergoing any pending investigation or
prosecution or whether or not they have sufficient statutory
authority to investigate cases like this.
But they are not here.
Our next witness will be the gentleman from Texas,
Representative Ted Poe, who represents the 2nd Congressional
District of Texas. He is the founder and co-chair of the
Congressional Victims Rights Caucus.
As a former criminal court judge and prosecutor for over 30
years in the Houston area, he is recognized nationally for his
creative sentencing of criminals and as a dedicated advocate
for victims and children.
Our next witness will be Ms. Jamie Leigh Jones, who in 2005
traveled to Baghdad as a contract employee of KBR and was
placed in a predominantly male barracks located in Camp Hope.
She will testify to events that occurred only 4 days after
her arrival. She subsequently founded the Jamie Leigh
Foundation, a nonprofit organization dedicated to helping
United States citizens and legal residents who are victims of
sexual assault, sexual harassment, rape and sexual abuse while
working abroad for Federal contractors, corporations or
We want to thank Ms. Jones for her courage and for her
And finally, we will hear from Scott Horton, who is an
adjunct professor at Columbia Law School, where he teaches law
of armed conflict and commercial law courses.
Since February of this year, he has managed the Project on
Accountability of Private Military Contractors at Human Rights
He is the author of more than 100 publications dealing with
issues of international public and private law and is currently
working on a book on legal policy issues relating to private
Now, each of our witnesses' written statements will be made
part of the record, each statement in its entirety. I will ask
that each witness summarize his or her testimony in 5 minutes
And to help you stay within that time, I hope the timing
devices are working at the table. They should start off green,
go to yellow when a minute is left, and then to red when the 5
minutes are up.
First we will hear from Congressman Poe.
TESTIMONY OF THE HONORABLE TED POE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Poe. Thank you, Mr. Chairman, and Chairman Conyers and
Judge Gohmert, for holding this hearing, especially in just a
short period of time, in 7 days, holding this very important
I am here to introduce a brave and courageous young woman,
Jamie Leigh Jones. She will tell you about the horrific
experiences in Iraq as an American civilian contractor who was
drugged and gang-raped by her American civilian co-workers.
She went to Iraq as a patriot to help our American
military. But what Jamie will tell you paints a picture of
lawlessness, where criminals go unpunished and victims are
For American civilian contractors, Iraq is reminiscent of
the Old West days and no one seems to be in charge. The law
must be enforced, and these outlaws need to be rounded up and
we have to restore order.
I became involved in this case when Jamie's dad, who is
here, called my office in Texas because I represent Jamie and
her family in Congress.
He relayed Jamie's account of her assault and being held
hostage in a shipping container and asked for immediate
My staff and I contacted the United States Department of
State's Department of Overseas Citizens Services. And within 48
hours, the State Department quickly dispatched two agents from
the U.S. embassy in Baghdad, rescued Jamie and brought her back
home to Texas.
It is my understanding that an assistant U.S. attorney
interviewed Jamie and that a State Department special agent
investigated the case. However, the Department of Justice has
not informed Jamie or me of the status of a criminal
investigation against her rapists, if any investigation exists.
It is interesting to note that the Department of Justice
has thousands of lawyers, but not one from the barrage of
lawyers is here to tell us what, if anything, they are doing.
Their absence and silence speaks volumes about the hidden
crimes in Iraq.
Their attitude seems to be one of blissful indifference to
American workers in Iraq.
Jamie turned to another government agency in 2006. She
filed a formal complaint with the U.S. Equal Employment
Opportunity Commission against KBR for sexual harassment.
In May 2006, the EEOC issued a letter of determination that
was favorable to Jamie. The EEOC determined that Jamie was
sexually assaulted by one or more KBR employees, that physical
trauma was apparent, and that KBR's own investigation ``was
inadequate and did not effect an adequate remedy.''
Two and a half years after her assault, Jamie still does
not have any justice. Jamie decided to go public with her case
because she wasn't getting answers from our government. It
seems our government agencies continued to fail her.
While the criminal justice system has certainly failed
Jamie in the United States, the civil court system may be of no
help to her either in holding wrongdoers civilly liable for the
injuries they have inflicted on their victims.
The inclusion of a binding arbitration clause in Jamie's
employment contract may preclude her from accessing a judge or
jury to hear her civil case. She may be forced into
arbitration, a privatized justice system with no public record,
no discovery and no meaningful appeal.
As a former judge, I have always thought the best way to
solve disputes was in a courtroom with a jury.
Since Jamie has gone public with her experience, my office
has heard from three other women. Of course, my office will
furnish the names of these women to the Judiciary Committee if
One of these three women is Tracy Barker. She is a former
KBR employee who says that she was sexually assaulted in Iraq
by a State Department employee who still works for the State
Department today. Tracy is here.
The two other women also are former KBR employees. They
both report sexual assaults and sexual harassment by their co-
workers in Iraq, and neither woman has seen any Federal law
One of the women informed my office that she was molested
several times and raped once by her KBR co-workers. When she
reported the crime to her supervisor, she was told that they
would take care of it.
She returned to work 2 days later and found her rapist
working alongside of her. She panicked and called for the Army
M.P.s, who escorted the rapist off of the base. However, she
was subsequently fired. And it seems, unfortunately, Jamie's
case is not unique.
Our government has a responsibility to protect Americans
overseas. These contractors work in support of the American
military mission. Those who work in Iraq in support of the
American military have the right to the same protections that
we bestow on citizens that are in America.
It seems to me we need a new sheriff in Iraq to enforce
Federal laws. The individual rapists must be prosecuted.
Americans cannot go abroad, commit attacks on fellow Americans,
without the long arm of the law holding them accountable.
The individuals who assaulted Jamie must be rounded up and
tried by a jury. Nonfeasance by civil contracting companies
cannot be tolerated.
And victims must get the justice that they deserve because,
Mr. Chairman, justice is what we do in America.
[The prepared statement of Mr. Poe follows:]
Prepared Statement of the Honorable Ted Poe, a Representative in
Congress from the State of Texas
Good morning, Mr. Chairman, Members of the subcommittee. Thank you
for quickly organizing and holding this important hearing.
I am here this morning to introduce a brave young woman, Jamie
Leigh Jones. She will tell you about her horrific experiences in Iraq
as an American civilian contractor, who was drugged and gang-raped by
her American civilian coworkers.
What Jamie will tell you paints a picture of lawlessness--where
criminals go unpunished and victims are vilified. For American civilian
contractors, Iraq is reminiscent of the Old Western days and no one
seems to be in charge. The law must intervene, round up these outlaws,
and restore order.
I became involved in this case when Jamie's dad called my office in
Texas because I represent Jamie and her dad in Congress. He relayed
Jamie's account of her assault and being held hostage in a shipping
container and asked for immediate assistance. My staff and I contacted
the United States Department of State's Department of Overseas Citizens
Services. Within 48 hours, the State Department dispatched two agents
from the US Embassy in Baghdad, rescued Jamie, and brought her back
It is my understanding that an Assistant US Attorney interviewed
Jamie and that a State Department Special Agent investigated her case.
However, the Department of Justice has not informed Jamie or me of the
status of a criminal investigation against her rapists. It is
interesting to note that the Department of Justice has thousands of
lawyers, but not one from the barrage of attorneys is here to tell us
what, if anything, they are doing. Their absence and silence speaks
volumes about the hidden crimes of Iraq.
Jamie turned to another government agency in January 2006. She
filed a formal complaint with the US Equal Employment Opportunity
Commission against KBR for sexual harassment. In May 2006, the EEOC
issued a Letter of Determination that was favorable to Jamie. The EEOC
determined that Jamie was sexually assaulted by one or more KBR
employees, that physical trauma was apparent, and that KBR's own
investigation ``was inadequate and did not effect an adequate remedy.''
Two and a half years after her assault, Jamie does not have
justice. Jamie decided to go public with her case because she wasn't
getting answers from our government. It seems our government agencies
have failed her.
While the criminal justice system has certainly failed Jamie, in
the United States, the civil court system may be of no help either in
holding wrongdoers civilly liable for the injuries they have inflicted
on victims. The inclusion of a binding arbitration clause in Jamie's
employment contract may preclude her from accessing a judge or jury to
hear her civil case. She may be forced into arbitration, a privatized
justice system with no public record, no discovery, and no meaningful
appeal. If her case is arbitrated, the very company who victimized her
will pick the arbitrator who will decide her fate. Jamie needs and
deserves justice. As a former judge, I have always thought that the
best way to solve disputes was in a courtroom with a jury.
Since Jamie has gone public with her experience, my office has
heard from 3 other women. Of course, my office will furnish the names
of these women to the Judiciary Committee if needed. One of the three
women is Tracy Barker. Tracy is also a former KBR employee, who says
that she was sexually assaulted in Iraq by a State Department employee
who still works at the State Department today.
The 2 other women are also former KBR employees. They both report
sexual assaults and sexual harassment by their coworkers in Iraq and
neither woman has seen any federal law enforcement action. One of the
women informed my office that she was molested several times and raped
once by her KBR coworkers. When she reported the crime to her immediate
supervisor, she was told that they would take care of it. She returned
to work two days later and found her rapist working alongside of her.
She panicked and called Army MPs, who escorted the rapist off of the
base. However, she was subsequently fired. It seems that,
unfortunately, Jamie's case is not unique.
Our government has a responsibility to protect American civilians
overseas. These contractors work in support of an American military
mission. Those who work in Iraq in support of the American military
have a right to the same protections that we bestow on our citizens
here in America.
We need someone in Iraq to enforce our federal laws. The individual
rapists must be prosecuted. Americans cannot go abroad and commit
attacks on fellow Americans without the long arm of the law holding
The individuals who assaulted Jamie must be rounded up and tried.
Nonfeasance by civilian contracting companies cannot be tolerated.
Victims must get the justice that they deserve because justice is what
we do in America. And that's just the way it is.
Mr. Scott. Thank you very much, Congressman.
TESTIMONY OF JAMIE LEIGH JONES, FORMER EMPLOYEE OF KELLOGG
BROWN AND ROOT (KBR), HOUSTON, TX
Ms. Jones. Good morning, Mr. Chairman and Members of the
I would first like to introduce my father, Tom Jones; my
husband, Joseph Daigle; my attorney, Todd Kelly; Stephanie
Morris, my other attorney; Tracy Barker, a fellow victim; and
Breanna Morgan, my mother.
I went to support Operation Iraqi Freedom in the Green Zone
in Baghdad, Iraq on July 25, 2005. Upon arrival at Camp Hope, I
was assigned to an all-male barrack. I complained about the
living conditions but Halliburton did nothing to help.
I was subject to repeated catcalls and men who were
partially dressed in their underwear while I was walking to the
restroom on a separate floor from me.
The EEOC reviewed Halliburton's comments, found them
unbelievable and credited my testimony about what happened. The
Committee has this finding as an exhibit.
On the fourth day in country, I stepped outside my barracks
to take a call. Afterwards, some co-workers called me over and
invited me to join them for a drink.
The men, identified only as Halliburton-KBR firefighters,
told me that one of them made really good drinks, so I accepted
the drink from them. He handed me the drink and said, ``Don't
worry, I saved all my 'roofies' for Dubai,'' or words very
similar to that.
I thought that he was joking and felt safe with my co-
workers. I believed that we were all on the same team. I took
two sips from the drink and don't remember anything after that.
The next morning, I was extremely sore between my legs and
in my chest. I was groggy and confused. I went to the restroom
and realized I had bruises between my legs and on my wrists and
was bleeding between my legs.
When I returned to my room, a man was laying in the bottom
bunk of my bed. It wasn't the same man who gave me the drink. I
asked him if he had had sex with me, and he said that he did. I
asked if it had been protected, and he said no.
I was still feeling the effects of the drug from the drink
and was now very upset at the confirmation of my rape. My heart
sank that day.
I reported this incident to a KBR worker who sent me to the
KBR clinic. The clinic called KBR security, who took me to the
Army CASH. Dr. Jodi Schultz performed a rape kit analysis,
including photographs and a form that indicated all the
She also took swabs, vaginal combings and scrapings from
under my fingernails, as well as my panties and bra, and put
the entire kit together in a small white box. I watched her
give this box to the KBR security personnel as I was again
turned over to these men.
During the exam, Dr. Schultz confirmed that I had been
penetrated both vaginally and anally and that I was ``quite
torn up down there.'' She indicated that based upon the
physical damages to my genitalia that it was apparent that I
had been raped.
The KBR security then took me to a trailer and then locked
me in a room with two armed guards outside my door. I was
imprisoned in the trailer for approximately a day. One of the
guards finally had mercy and let me use a phone.
I called my dad, who contacted Congressman Ted Poe, who
took actions to get me out of the country. I believe he saved
I was later interviewed by Halliburton-KBR supervisors, and
it was made clear to me that I had essentially two choices--
one, stay and get over it, or, two, go home with no guarantee
of a job either in Iraq or in Houston.
Because of the severity of my injuries, I elected to go
home, despite the obvious threat of being fired.
Once I returned home, I sought medical attention, both
psychiatric and physical. I was originally sent to a
psychiatrist of Halliburton's choosing. The first question
asked was, ``Are you going to sue Halliburton?'' So my mother
and I walked out.
Some time around May 2007, a State Department agent called
and said that she was not aware of a rape kit or any pictures
of my injuries. I insisted that the rape kit existed and
forwarded a copy of KBR's own EEOC response to prove that the
Army doctor handed it over to a KBR employee at the hospital
the night of the rape.
It was a few days later that I received a call from the
agent stating she had found the rape kit but the pictures were
missing and so were the doctor's notes attached to the top of
the rape kit.
I have had reconstructive surgery on my breasts and
pectoral muscles due to the disfigurement caused by the brutal
attack. I am still waiting for a follow-up surgery because I am
still not back to normal. I have to sleep with a sports bra
because of the pain. I still continue to go to counseling three
times per week.
It seems that nothing happens in my criminal case unless
there is media attention. Right after I was interviewed with
20/20, I was flown to Florida to meet with the assistant United
I asked the AUSA where should I refer victims who contact
me through the Jamie Leigh Foundation, and she responded,
``Don't refer them to my office, but you may want to refer them
to the Office of Victims of Crime.''
This problem goes beyond just me. Through the Jamie Leigh
Foundation, numerous other women have contacted me who were
assaulted and raped and were then retaliated against for
reporting those attacks.
There are at least 11 others that my attorneys are aware
of, not including those filed by other lawyers and those who
have come to me through my foundation.
As indicated by the sworn affidavit by an H.R.
representative from Halliburton, it is clear that sexual
harassment was an overwhelming problem in Iraq, and this was
known to Halliburton and KBR, but they hide it from
unsuspecting victims like myself.
There has been no prosecution after 2.5 years. My attorney,
Stephanie Morris, wrote a letter to the ombudsman of the Office
of Victims of Crime, also enclosed with the letter. Hopefully,
the next victim will not have to wait so long.
The arbitration laws are so abusive that Halliburton is
trying to force this into a secret proceeding which will do
nothing to prevent continued abuse of this nature. What is
there to stop these companies from victimizing women in the
The United States government has to provide people with
their day in court when they have been raped and assaulted by
other American citizens.
Otherwise, we are not only deprived of our justice in the
criminal courts but in the civil courts as well. The laws have
left us nowhere to turn.
Thank you, Chairman and Members of the Committee, for
inviting me to be here today.
[The prepared statement of Ms. Jones follows:]
Prepared Statement of Jamie Leigh Jones
Mr. Scott. Thank you, Ms. Jones, and thank you for your
courage in being with us today.
TESTIMONY OF SCOTT HORTON, ADJUNCT PROFESSOR OF LAW, COLUMBIA
UNIVERSITY SCHOOL OF LAW, NEW YORK, NY
Mr. Horton. Thank you for the opportunity to speak today,
and I just want to start by saying that I certainly am moved by
the remarks that Ms. Jones has just made.
In fact, it is hard to hear them without being angry. But I
am going to try to be detached and examine some of the legal
and policy issues that are presented here.
And I want to start by saying Congressman Poe, I think,
laid out the basic principles and stated them well, and
essentially there is not a lot more I have to add to that.
It is a question of fundamental justice and the Department
of Justice failing to follow through in an area where it has
clear jurisdiction and responsibilities.
I think the Committee probably needs to look at this issue
at two different levels. Number one is from the perspective of
legislative--its legislative role. Has it enacted legislation?
Has it appropriated funds that are sufficient to address this,
which is clearly a recurrent problem?
And second, from the perspective of its oversight role--
that is, has the executive branch done everything it needs to
do in the enforcement area?
Well, I think we need to start with the fact that we have
got--we have a community of 180,000 contractors in Iraq. Crimes
occur. This has to be considered as something politically
It doesn't suggest that reliance on contractors is a
mistake. That is an entirely independent political question for
And the community does not consist entirely of angels or
devils. It consists of ordinary human beings, most of whom,
undoubtedly, try very hard to honorably serve the country in
fulfilling their duties.
But you won't find a community of this size in the United
States or anywhere in the world where there are not violent
crimes--in fact, violent crimes that occur hundreds of times in
And when you add to that the high-pressure circumstances
that go with wartime, life in a war zone, where there are
constant shootings and bombings, for instance, we know that
this frequently leads to higher-than-normal rates of violent
So the question is who is playing sheriff. Who is providing
the oversight? And in this case, there is a special
responsibility for the United States.
That responsibility arises because of order number 17 that
was issued by Jerry Bremer in June of 2004. That order cut off
the law enforcement powers of the government of Iraq.
And that, I think, was an appropriate order to issue, but
it created an obligation on the part of the United States to
step in and fill the vacuum, to provide the law enforcement for
I think human experience tells us that when there is no law
enforcement provided, crime is going to proliferate. That is
something we know from the writings of Hobbes and from human
Now, the accusations that come out of this case are
disturbing in a number of different particulars, but the first
is where is the Department of Justice when the incident occurs.
I mean, clearly, there should have been notification to the
Department of Justice right off the bat, certainly as soon as
the embassy heard about it.
There should have been involvement of the Department of
Justice in the crime scene investigation at the beginning.
There is no evidence that that occurred.
Second, there are a number of outside indicators here
suggesting that the embassy and others treated this as a
contractor problem--that is, it is the contractor's
responsibility to deal with this issue.
And I have to say now, in several months of talking with
officials at the State Department, the Defense Department and
the Justice Department, that is a refrain I hear over and over
again--it is the contractor's responsibility.
But it is not the contractor's responsibility to enforce
the criminal law. That is a ridiculous attitude. It is the
responsibility of law enforcement agencies to do so. So there
is just a curious failing here.
And the third thing I find particularly distressing here
are the facts surrounding the medical examination, the
preparation of the rape kit, and the fact that the rape kit
again was turned over to the contractor.
Obviously, this leads to all sorts of problems that will
complicate far down the road a criminal prosecution. There is
going to be a question of chain of custody, assuming it is ever
found, but now it is missing. There is no sign of it.
This has evidence in it that can't be reconstructed after
the fact. So there are going to be terrible problems here.
So let me cut down to what are the issues again and what
are the answers to the two questions I put up front. I think
the legislation that Congressman Price put forward does address
the question of jurisdiction.
Jurisdiction in this case is clearly present, even under
the 2004 amendment. There is a contract that is involved that
is a Department of Defense contract.
But I think, again, it highlights the danger of having too
technical a restriction in that statute. There is a need to
broaden it. The Price legislation does that.
But I think more important even than this, the Price
legislation comes to a focus on requiring proper resourcing by
the Department of Justice out in the theater in Iraq, being
sure that there are FBI agents, there are investigators, that
there is a trained, seasoned prosecutor.
Had those resources been present in Baghdad, I think this
case would have been handled properly, and we wouldn't be
facing the dilemma and the tragedy that we see right now. So
there is really a pretty clear fix.
Thank you very much. I look forward to your questions.
[The prepared statement of Mr. Horton follows:]
Prepared Statement of Scott Horton
Is America establishing a culture of impunity among its contractors
operating in areas of armed conflict? This is the question which a
proliferation of reports out of Iraq invites. When I addressed this
committee on June 25, I noted that there was a troubling potential that
certain categories of contractors would escape accountability
altogether because of some issues that exist with the Military
Extraterritorial Jurisdiction Act. I also noted concern that the
Department of Justice might not be giving sufficient resources and
priority to its enforcement responsibilities over contractors in Iraq
and Afghanistan. Unfortunately all those concerns have been borne out.
America's objectives in Iraq and Afghanistan, as articulated by the
President, the Secretary of Defense and the Secretary of State, include
helping to create a new democratic society which values the rule of
law. But the contractor community that America has fielded to pursue
this objective operates in an environment that looks increasingly like
Texas West of the Pecos in 1890--without even a Judge Roy Bean to keep
things in order. This obviously undermines the mission's credibility.
But it also creates an environment which is dangerous to all involved--
contractors, the military and other U.S. Government personnel, and the
host community in which they operate.
Since June, we have witnessed a parade of further headlines which
demonstrate precisely the shortcomings that were identified and
addressed in Congressman Price's legislation, H.R. 2740. And while that
legislation overwhelmingly cleared the House--in a 389 to 30 vote--the
Senate has not yet acted on a parallel measure. This legislation is
urgently needed and should be enacted and signed into law in the near
This committee should focus on two questions. First, is there a
question relating to appropriations or to legislation which has
contributed to the problem which the public now so clearly sees?
Second, has the executive branch done what it can and should do to
enforce the law?
The horrible rape incident involving Ms. Jennifer Leigh Jones is
sickening to hear recounted. It also provides an opportunity to
consider exactly how the Government has responded to crimes committed
by and among contractors. We have a community of 180,000 contractors in
Iraq. Crimes do occur, and this is and must be considered a politically
neutral fact. It does not suggest that the reliance upon contractors is
mistaken. The decision to rely much more heavily on contractors was not
a partisan decision. This community consists entirely neither of angels
or devils, but of ordinary human beings, most of whom undoubtedly try
to act honorably in fulfilling their duties. You won't find a community
of this size in the United States, or anywhere else in the world, that
doesn't experience serious violent crimes--hundreds of times in the
course of a year. Add to that the fact that high pressure
circumstances--such as life in a war zone in which shootings and
bombings are common--frequently lead to higher than normal rates of
Human experience also teaches--since the first formation of human
communities--that when the state fails to enforce order, to identify
crimes as crimes and to punish them swiftly and certainly, crimes
proliferate. The Government has a duty to the citizens of the United
States, and also to the employees of the contractor community, to
vigorously uphold the law. Indeed, this is one of the most fundamental
duties of any Government. If the executive branch felt it needed new
tools to do the job, or more money, it had a duty to come to Congress
and regulate these questions. I have a lot of difficulty seeing how the
executive branch has met this responsibility in the context of the
United States presence in Iraq.
I have not independently investigated the facts of the Jones case,
though I personally find her account painful and compelling. But if I
consider the facts that Ms. Jones has described, taking only those
which have not been disputed by Kellogg Brown & Root, then I see no
impediment to the exercise of the criminal law jurisdiction of the
United States by the Department of Justice. As alleged the crimes
occurred among employees of contractors involved in a contingency
operation, on installations or facilities maintained by the United
States abroad, and involve U.S. citizens as perpetrators and victims.
These facts would provide multiple bases for the Department of Justice
to exercise its jurisdiction. The crimes which have been alleged--rape,
assault and false imprisonment among them--would come under at least
two different grants of jurisdiction to U.S. federal courts, namely the
Military Extraterritorial Jurisdiction Act, as amended in 2004, and the
special maritime and territorial jurisdiction, as expanded by the USA
PATRIOT Act. Of course, depending on the identity of the perpetrators,
and potentially also the contracts which brought the personnel to Iraq,
there might be some legal issues. This would have to be developed by
The astonishing failure in this case is the failure of an
appropriate law enforcement authority to conduct a prompt and timely
investigation of the allegations while Ms. Jones was still in theater.
It does appear that the matter was reported to the Justice Department
early on, and Ms. Jones recalls meeting with a special agent of the FBI
from the Baghdad Embassy. But the investigation was conducted by the
State Department, and it does not appear to have been an investigation
designed to support a decision to take criminal action, including
potential prosecution. In a case of this sort, having a timely,
professional investigation conducted that secures forensic evidence in
a form which is admissible in subsequent criminal proceedings is
critical. This does not appear to have occurred. This will make
prosecution by the Department of Justice incalculably more difficult.
It may lead a prosecutor to conclude that even though a serious crime
likely occurred, it will be too difficult to develop the evidence
necessary to prosecute it.
In fact the way the medical examination and resulting evidence was
handled was truly shocking.
These factual allegations from the Jones case strike me as
significant and revealing of structural flaws in the way contractor-
related crimes are being handled in Iraq and Afghanistan:
(1) The Justice Department is effectively not present on the scene,
does not have personnel deployed charged with conducting
investigations, collecting evidence and making preliminary decisions as
to whether incidents are suitable for prosecution. This would require a
team of FBI agents with appropriate training, including access to
forensic labs and personnel.
(2) The case when first alleged seems to have been treated as an
issue related to administration of a contract, rather than a criminal
justice matter, triggering only a State Department investigation. But
the State Department does not have authority to conduct criminal
inquiries or to bring charges.
(3) The Department of Defense was called upon to provide medical
expertise, which was a reasonable step. But no guidelines appear to
have been available as to how this was done. The alleged surrender of
the rape kit by military medical personnel to Kellogg Brown & Root was
grossly improper, producing a serious lapse in the chain of custody--
and in this case, loss of evidence which cannot be reproduced. It
reflects an attitude which I hear constantly when interviewing State
Department and Defense Department personnel--namely, that the problem
is the contractor's. Of course, the contractor has an interest in
performing its contract and maintaining a good relationship with the
contracting agency. The contractor does not have any interest per se in
law enforcement. It might well decide to terminate employees it
believes are involved in a crime, but beyond that the contractor will,
very appropriately, believe that the responsibility for law enforcement
lies with law enforcement agencies.
On December 5, the Department of State and the Department of
Defense, represented through the able Deputy Secretaries Negroponte and
Gordon, entered into a Memorandum of Agreement which sets out
guidelines for cooperation in some investigations. When I first
received and examined this document, I was convinced I must have been
missing several pages. The most extraordinary thing about it is in fact
what it does not cover. Remember, this process started in the wake of
the Nisoor Square incident on September 16, in which private security
contractors working for Blackwater Worldwide opened fire in the Nisoor
Square neighborhood of Baghdad, leaving 17 civilians dead and severely
wounding 24 more. The confusion, defensiveness, multiplicity of
uncoordinated, ad hoc investigations, and inter-agency finger-pointing
that characterized the U.S. government response to the shootings
highlight the fact that the U.S. Government at this late date still had
no plan or procedure for investigating allegations of serious violent
crime involving private contractors fielded by the U.S. government in
The Defense Department and the State Department got into a bit of a
squabble over these investigations, a turf battle if you will. The
Memorandum of Agreement was supposed to work out procedures for
reconciling their differences. It actually contains a number of
important advances. But there is one agency with clear primary
responsibility for the investigation of criminal conduct and action
thereon, and that agency--the Department of Justice--is nowhere to be
found. It's not a party to the Agreement. In fact, while there is a
fairly vague reference to ``appropriate'' law enforcement agencies, the
Justice Department isn't even mentioned.
With respect to the Nisoor Square incident itself, the first
Justice Department investigators appeared two weeks after it was first
reported, published above the fold in newspapers around the United
States. It made its appearance only after a public spotlight was
focused on it, and demands were made by editorial boards and members of
Congress for it to account for its inaction.
I wish this had been a unique course of events. But it seemed to me
completely typical. We should also look back to the first reports out
of Abu Ghraib. Remember that the Report authored by Generals Kern,
Jones and Fay identified six contractors, and General Taguba linked two
of them to the most serious abuses that occurred at Abu Ghraib. These
matters were referred to the Department of Justice, and on to the
Eastern District of Virginia in 2004. At the point of referral they had
been fully investigated by the Army's Criminal Investigations
Department, with a full dossier supporting prosecution. That same set
of investigations fueled more than a dozen courts-martial and even more
nonjudicial punishments. On the military side, the process may be
subject to some criticisms, but at least there was a process that moved
forward and resulted in criminal prosecutions and serious sanctions.
And what about the Abu Ghraib cases involving contractors that were
passed to the Department of Justice? Though there is a single newspaper
report of a grand jury meeting at which questions were asked about
these cases, there is no sign of any meaningful prosecutorial action--
not even of efforts to interview victims and key witnesses. The Eastern
District of Virginia has a reputation for acting quickly and
skillfully. It has in the past years handled some of the highest
profile cases in the country. The contrast between those cases and its
handling of the cases from Abu Ghraib is nothing short of stunning. And
the explanations that have been offered simply do not hold water.
There has not been a single completed prosecution of a crime
involving a contractor implicated in violent crime coming out of Iraq,
although the reported incidents which would have merited investigation
are legion. Again, it is simply impossible to believe that in a
community with a peak population of 180,000 people--with many more
people than that actually cycling in and out of these jobs, tens of
thousands of them Americans--over a period of approaching five years
there has been no violent crime. The facts point to something else: an
attitude of official indifference within the Department of Justice, or
at least a decision to accord these crimes a very low priority and no
or very little resources.
Looking back quickly to the two questions I started with:
The developments at Nisoor Square and the tragedy experienced by
Ms. Jones show that the legislation that Congressman Price proposed is
badly needed. Congressman Price's bill, as enacted by the House,
requires the Justice Department to allocate the personnel and resources
needed to address criminal allegations involving contractors. These
cases reveal that as an urgent necessity. The Price bill also
strengthens the Justice Department's jurisdictional basis for action
which would help avoid unproductive litigation over the scope of the
Congressional grant of jurisdiction.
The Jones case, and the Nisoor Square case point to a failure by
the Justice Department to provide appropriate resources to address law
enforcement within the contractor community in Iraq. There is an urgent
need to have investigators, prosecutors and trained support personnel
on the ground in Iraq. Back in Washington there should be a staff of
experienced trial attorneys with depth in relevant criminal law and the
law of armed conflict who can support prosecutions. The Criminal
Division needs to be given an explicit mandate to cover this area, and
dedicated funding, resources and personnel to do so. The fact that such
resources are missing has clearly contributed to the failure to act in
a timely and appropriate manner in the Nisoor Square event, in the case
that Ms. Jones has described, and in many other incidents as well. It
has damaged our nation's reputation for doing justice.
I look forward to your questions.
Mr. Scott. Thank you. Thank you, Professor.
We will now have questions from the panel, and I will
recognize myself for 5 minutes and begin with Ms. Jones.
Are you aware of other cases of sexual assaults during your
time in Iraq?
Ms. Jones. I am aware of several other cases, yes.
Mr. Scott. And do you know if any of them have been
investigated by criminal law authorities?
Ms. Jones. Everyone that has came to me through my
foundation don't know where to turn to for the criminal
prosecution. And that is why I asked the assistant United
States attorney where I should refer the victims to, Mr.
Mr. Scott. And do you know whether any of them have been
Ms. Jones. Not to my knowledge, Mr. Chairman.
Mr. Scott. Congressman Poe, when you called the Department
of State, did they give you any response to the allegations?
Did they admit it, deny it?
Mr. Poe. The initial call was made and told them what had
occurred, and our biggest concern at that point was getting
Jamie in a safe environment.
And so there were no comments--the first, obviously, they
had seemed to have heard of any of this is when we called the
Mr. Scott. And did you call the Department of Justice as
well as the Department of State?
Mr. Poe. We contacted the Department of State first. Later,
in the last 2 years, the Justice Department had been contacted
by my office. But we have not received any response from either
Mr. Scott. Say that again.
Mr. Poe. We haven't received any response from the State
Department or the Justice Department.
Mr. Scott. Professor Horton, you indicated that the--in
this case there seems to be no question about Federal
jurisdiction over the crimes because KBR was a Department of
We are trying to make sure that is the same case for other
contractors of the Department of State or some other--
Department of Interior, or whatever.
Since it is covered, who in the Federal Government should
be--is responsible for the investigation and prosecution?
Mr. Horton. Well, let me start by noting Judge Gohmert, I
think, pointed out quite correctly there are still some open
questions here, of course, and we don't know who all the
So of course, there could be some question with respect to
some of the perpetrators. If those individuals aren't in the
theater in the context of a contract supporting the Department
of Defense, that would be an issue.
But the core events that occurred clearly are within the
jurisdictional grant of the MEJA. So what does that mean? That
means that the Department of Justice had the power and the
responsibility to conduct the preliminary investigation in the
theater and to handle it from that point forward.
And I would point out something else that I noted in my
written remarks here. That is on December 5th, there was a
memorandum of understanding reached between the Department of
Defense and the Department of State about conducting
investigations. That is the thrust of your questions.
You know, I got this agreement recently. I read it. I
thought I was missing some pages, because the Department of
Justice does not appear anywhere in the document.
Not only are they not a party involved, asserting their
prerogatives and their powers in connection with the
investigations--and they are the paramount authority for this
purpose--they are not even referred to in the agreement. They
Mr. Scott. We have talked about the mandatory arbitration
clause in her employment agreement. Is there any appeal from a
mandatory arbitration decision?
Mr. Horton. I have to say that is beyond my field of
Mr. Scott. Okay. And finally, do you know anything about
other incidences that have not been investigated?
Mr. Horton. Well, I have interviewed a number of individual
contractors who described being victims of assault, involved
contract--rather, fiscal contract issues and so forth, who
described only a process of internal investigation with no
government oversight investigation in these cases.
So I guess I am aware of some other instances--not as
serious as these, however.
Mr. Scott. You mean the contractor doing the investigation
and not criminal authorities doing the investigation?
Mr. Horton. That is correct.
Mr. Scott. Thank you.
The gentleman from Texas?
Mr. Gohmert. Thank you, Mr. Chairman.
And to follow up, Professor, on some of the Chairman's
questions, MEJA does seem to leave some questions, and so I
want to ask specifically your opinion on whether part of this
offense fell in cracks within the MEJA existing at the time of
the alleged incident.
When I say alleged, I believe there was an incident.
Mr. Horton. Again, I think the core of this incident
certainly would be covered by the MEJA.
What I am concerned about is when we get the--when we
finally discover, if we do finally discover, who all the
perpetrators are, if it turns out that some of those
perpetrators are not in country in connection with a contract
serving the Department of Defense, then they would be outside
the territorial grant of the MEJA.
I think this is one of the reasons why it is really in the
interests of justice here to have a far broader, more expansive
grant of jurisdiction to the Department of Justice so they pick
up all those cases.
I mean, it certainly would be an inefficient use of the law
enforcement resources of the United States not to be able to
join all the perpetrators in this case.
Mr. Gohmert. Well, you had said that the DOJ had
responsibility for investigating. I was in the Army 4 years and
familiar with their military justice.
It would seem, though, that when there is an immediate
problem in a DOD theater that there should be DOD investigators
immediately step in, whether there is DOJ on the scene or not.
Would you agree with that?
Mr. Horton. Absolutely.
Mr. Gohmert. Because, I mean, there are some incredibly
professional DOD investigators, detectives, well trained, good
folks. It would seem that that would be the perfect people to
come in, if it is support personnel for a DOD mission.
Mr. Horton. I agree completely with that. You know, it
seems to me that it would be reasonable to draw on the existing
in-theater law enforcement expertise, and that would include
the Criminal Investigation of the Department of the Army,
medical sources and others.
We would need, I think, someone with prosecutorial
experience to supervise, and there are some gaps, of course,
because the criminal justice system in our civilian courts, in
our Article III courts, is different from the court martial
So the CID frequently prepares evidence to different
standards, so you would need to have a prosecutor who could
supervise the process to be sure that we don't have any
One thing. There was a reference earlier to the Abu Ghraib
cases. Now, those are cases, five cases, that were referred to
the Eastern District of Virginia involving civilian contractors
to Abu Ghraib.
They were investigated by the CID. The portfolio and all
the information was passed to the Eastern District of Virginia.
There is no evidence, I see, of prosecutorial action.
One thing I am concerned about is, you know, why does the
Department of Justice feel that the CID investigation doesn't
meet standards for Federal court prosecution for some reason? I
mean, that would be a very----
Mr. Gohmert. Well, basically----
Mr. Horton [continuing]. Important fact to know.
Mr. Gohmert [continuing]. You are probably aware they
operate under the basic Federal rules. They kicked in back
around 1980 for military justice courts.
But if there is some question about jurisdiction of DOD or
CID with the military coming in, investigating, we would
welcome your input on how best to craft a fix to that
legislatively to make sure that it is taken care of.
Ms. Jones, I would like to ask, what specific thing do you
think we could put into law that would have allowed you
immediate help once something like this occurred?
Ms. Jones. First of all, I think that if there was a
standard procedure in place such as, you know, if someone is
referred to the Halliburton clinic, then the Halliburton clinic
should contact, like, FBI or whoever you all think needs to
investigate it, because the KBR security coordinator--there is
no way that that would come within the scope of their
employment, I wouldn't think.
Mr. Gohmert. Did they have a rape kit readily accessible,
or was that something that took a while for them to get a hold
Ms. Jones. I am not sure. I was taken to the Army hospital
where the rape kit was----
Mr. Gohmert. Okay.
Ms. Jones [continuing]. Administered, but the Army doctor
did hand over the rape kit to KBR security.
I think that if this would have happened in the states, the
rape kit would have been handed over to, say, a police officer,
and there would be a chain of command. Like if the rape kit was
handed to one person, to another, it would be, you know,
Mr. Gohmert. Certainly.
Ms. Jones [continuing]. That it changed hands.
Mr. Gohmert. Well, and normally the military understands
that and they are very good about that. That is why I am very
concerned about this lapse in judgment and actually in protocol
for how you handle these things.
Like I know Judge Poe saw repeatedly as a judge, they had
those same procedures in the military, and it is really
shocking that that wasn't followed here either.
But I see my red light is on, and so thank you, Mr.
Mr. Scott. Thank you.
The gentleman's time has expired.
The gentleman from Michigan, the Chairman of the full
Mr. Conyers. Thank you, Mr. Chairman.
What a hearing. We are asking a victim about the laws and
the Criminal Investigation Division.
I am going to call the attorney general, Mukasey, who
started out--it was going to be a new, clean deal, we are going
to pull this thing back together.
And you know, I am embarrassed that the Department of
Justice can't even come forward. I want him to start talking
about these questions that we are asking the witness.
Are they coordinating? Is the Criminal Investigation
Division working carefully? They are real efficient. Yeah, real
efficient. I am going to call the secretary of defense, too,
We are acting like this is a case of first impression, that
this is very difficult, complex stuff we are working on here.
And we have got tens of thousands of people over there.
Goodness knows how many people have preceded Ms. Jones in this
kind of tragedy.
And we are acting like this is something very heavy--we are
judges, we are lawyers, we are professors. And this is an
The least we could do is have people from the Department of
Justice and defense over here talking about how we are going to
straighten out the system right away. You don't even need a
hearing to do that.
They should have responded to Congressman Poe immediately
and said, ``Let's clean this up right away.'' Did they do that?
No. They are stiffing him. They are stiffing all the Jamie
Joneses that have come and gone before. And they are stiffing
us right now.
And as one who encourages and works on the bipartisanship
of the Judiciary Committee--and that has been my goal since I
took over in January of this Committee--I am so pained by this
big-deal complex law coordination expert investigators and all
that, and nothing is happening.
And so I am going to hope that we can do this without
having to have countless numbers of hearings where we keep
repeating the same thing. We are all in agreement that this is
a mess that has got to be straightened up right away.
And I am really ashamed as someone who has been in the
service 3.5 years and served in Korea. And I know what it is
like being over there.
Ms. Jones, it was a great idea for the foundation. Tell us
a little bit about it.
Ms. Jones. I had to do it. I had to do it for other
victims. I want to have the resources readily available at
people's fingertips who are going through this. I mean, there
has to be a resource that is a refuge for victims.
And if I couldn't find out where to go--I tried through the
assistant United States attorney--then perhaps I could help
them at least find therapists, doctors, whatever I could do.
Mr. Conyers. Well, that is so courageous. You know, as you
know, this could break up, you know, a normal person. You are
tough. You are patriotic.
And I am just so proud that thanks to you and Congressman
Poe, we are going to turn this thing around. You can bank on
Mr. Scott. Thank you, Mr. Conyers.
The gentleman from California, Mr. Lungren?
Mr. Lungren. Thank you very much, Mr. Chairman.
This is a very difficult hearing. If one of my four sisters
or my two daughters that are younger than you, Ms. Jones, had
undergone this, I am not sure I could control my rage.
We have all seen that the first obligation of government,
in my judgment, internationally is to provide for the common
Our first obligation domestically is to create a modicum of
security and safety for our citizens so that they might be able
to exercise their rights.
Those two things shouldn't collide. And the fact that we
are out fighting a war doesn't give us an excuse to forget the
elements of our governmental structure and our criminal justice
system. And I don't think I could add too much to what the
professor has already said.
I think you have analyzed the law. I think you have
indicated what some of the problems are. I would echo the
comments of our Chairman. This isn't rocket science. Any
sophisticated law enforcement agency knows how to handle cases
Because you have a distribution of authority between the
Department of Defense, the Department of State and the
Department of Justice is not an excuse that they can't get it
Every law enforcement agency of which I am aware works with
other law enforcement agencies and other governmental
structures. And if you think it is important, you establish a
protocol and you work these things.
We had testimony here by the Department of Justice, by the
FBI, as to what their priorities are. We know they have given,
for instance, tremendous number of new agents and attorneys to
look at public corruption.
I mean, they talk about that all the time. They talk about
it as one of the four keystone things that they do. I have
never heard them talk about this. I am outraged by this. I
don't have any answer as to why this should happen.
Ms. Jones, you are owed an apology by the government the
way this was handled. Look, I know there are some great people
that work at Halliburton and KBR. I am sure you would say that
I would probably bet that the vast majority of them are
wonderful, patriotic people. But when you have got some bad
apples, someone has got to do something about it.
And most of our men and women who are working overseas to
defend this country are great patriots, but there are among
them the bad guys. And we should not allow them to hide behind
bureaucratic inaction or, worse, such fear of bureaucratic
inaction being revealed that somehow you don't act and you
cover things up.
I think all of us on a bipartisan basis would join in the
words of the Chairman that we need to get to the bottom of
this, that this is not a partisan issue, that I certainly grant
our new attorney general the benefit of the doubt.
I am going to presume that he personally is not aware of
this and that personally he did not make the decision not to
have someone, at least someone, here and testify as to the
procedures and the processes.
But we will work together on this, because this is totally,
Mr. Conyers. Would the gentleman yield?
Mr. Lungren. I would be happy to yield.
Mr. Conyers. I just want to thank him for his continued
cooperation that I have enjoyed on the Committee this year, and
I just want to applaud his perceptions of this problem.
Mr. Lungren. Well, I thank you.
Ms. Jones, did anyone ever explain to you what was going to
be done with the rape kit, number one?
And number two, has there been any effort to give you an
explanation of what has happened to it since that time?
Ms. Jones. The only thing that I was told by State
Department agents is that the pictures and doctor's notes are
Mr. Lungren. See, this is an absolute outrage. Anybody who
has ever been involved in prosecuting sexual assault cases
understands the importance of a rape kit, understands the
importance of maintaining evidence, understands the idea of
chain of custody, understands you can undercut those cases if
you let any of those things fall through the cracks.
And this is--I don't understand how anybody could explain
it, except to say that no one knew what they were doing, no one
knew who was in charge, somehow yours was the first case of
this type anybody had ever heard of so they couldn't figure out
how to work it from an investigative and a follow up and a
And that is totally unacceptable.
Ms. Jones. I agree.
Mr. Lungren. Judge Poe, have you seen this in your
experience as a judge on the state level in Texas?
Mr. Poe. No. After 22 years, I have never seen a case where
the doctor takes a rape kit, does it correctly, and gives it to
Mr. Lungren. I mean, how many times have we been told the
feds know how to do it and we don't know how to do it on the
state level? I mean, we ran----
Mr. Poe. We hear that a lot.
Mr. Lungren [continuing]. Into that all the time when we
were in the criminal justice system in our respective states.
There is no excuse for this.
Do you have any opinion as to why this could happen, how
this could happen?
Mr. Poe. I don't know why it happened. It shouldn't. But
you mentioned it. I think the protocol--no one knew who was in
charge, who was responsible, who was supposed to follow up,
which--of course, it is our Justice Department.
Mr. Lungren. This sounds like the way we handled sexual
assault cases 50 years ago, you know?
Mr. Poe. It does.
Mr. Lungren. Where the victim was the last person thought
of, where we didn't know what to do with the evidence, where we
didn't realize how important it was to preserve the evidence,
where we let the perpetrator sort of get away because we
weren't doing it on a timely basis--I mean, this is about as
bad a foul-up as I have seen.
And I apologize to you on behalf of the Federal
Ms. Jones. Thank you.
Mr. Lungren [continuing]. Ms. Jones. This should not happen
to you. It should not happen to anybody else similarly
And how do we attract young people who are patriotic, as
you are, to do the service to our country that is necessary?
You were willing to go to a combat zone.
We saw the reaction we had from some of the people in the
State Department just a couple weeks ago, or a month ago, when
the secretary of state suggested they needed to be out there
I mean, you have been doing it, and this is the thanks you
get. There is something rotten in Denmark, and we had better
take of it.
Mr. Scott. The gentleman's time has expired. Thank you.
The gentleman from Georgia, Mr. Johnson?
Mr. Johnson. Thank you, Mr. Chairman.
In watching the news last night, I saw--or heard; I was
washing dishes during that time--a report--yes, I do wash
dishes--and heard a report of a homicide on a military base on
Fairfax County, Virginia that had occurred on Monday.
And the report went on to say that the FBI has taken over
the case and was investigating this homicide to determine
whether or not any foul play that was involved in it.
And something of that--a simple procedure like that was
called for in this case, even though it occurred in the Green
Zone in Iraq, a place where we had invaded, destroyed the
infrastructure, then put in our own systems of justice over
there, of maintaining law and order, especially in the Green
And so I know that there are some--or I know that at the
time that the incident occurred, Ms. Jones, that there was law
enforcement available, a neutral law enforcement available, in
the Green Zone to protect persons who were crime victims.
And that system failed you. In fact, there are strong
implications that perhaps that system and your private
employer, Halliburton, the owner of KBR, which is a wholly-
owned subsidiary--perhaps there was some unholy alliance
between the law enforcement at that facility and your private
employer, and that operated to deprive you of your right to
justice under the criminal law up to this point.
And with the state of the evidence, I am not sure whether
or not it will be feasible to move forward with a criminal
case, but certainly you having come back to the United States
of America, you would seek to establish justice in the civil
And you have been met with resistance in doing that because
of this mandatory binding arbitration clause in the agreement
that you signed with Halliburton in connection with your
employment, is that correct?
Ms. Jones. Yes, and I wanted to go and get a--do away with
the arbitration in my case because I want justice, and I want
to contribute every penny to the Jamie Leigh Foundation, to put
it back and help other victims, and do everything that I can in
my power to help victims of violent crime.
Mr. Johnson. Well, let me tell you, I have got a daughter
who is 18 years old, not much younger than you. I think you
are, what, 22 at this time?
Ms. Jones. I just turned 23.
Mr. Johnson. Twenty-three.
Ms. Jones. Yes, on the 13th.
Mr. Johnson. And I will say that if something like this
would have happened to my daughter, I, like all of the others
sitting on this podium, would--it is impossible to say how one
would react until one is faced with some dilemma like this, and
it could actually tear apart the family.
And I am so happy that you are here with your family today,
your father, your mother and your husband, who has stuck with
you throughout this trial and tribulation. And so my hat goes
off to that family support that you have.
And I am proud of you for the stance that you have taken,
and I know that they are very proud of you as well.
Ms. Jones. Thank you.
Mr. Johnson. You were 19 years old or so when you signed
this employment agreement with Halliburton?
Ms. Jones. I think I was 19--I think I had just turned 20.
Mr. Johnson. Did you have a lawyer present to explain to
you what was in that agreement?
Ms. Jones. No, sir.
Mr. Johnson. And did you have any idea of knowing anything
about the so-called Halliburton dispute resolution program that
was alluded to in that contract?
Ms. Jones. I didn't see that it was alluded in the
Mr. Johnson. Yes. Well, now, the contract did mention about
mandatory binding arbitration for any employment disputes. Were
you aware of that when you signed?
Ms. Jones. No, it was 18 pages long, and it was in verbiage
at the time that I, quite frankly, did not understand. If you
would have asked me at 20 years old what an arbitration was, I
would not have been able to tell you.
Mr. Johnson. And, Congressman Poe, according to an analysis
by the National Employment Lawyers Association based on the
American Arbitration Association's public reports from January
1st, 2003 to March 31st of 2007 of the arbitration decisions
involving Halliburton, the Triple A arbitrators, who are the
lead arbitrators in this case, found for Halliburton 82 percent
of the time. Do you find that number disturbing?
Mr. Poe. Well, it is hard to understand that somebody could
be correct 82 percent of the time in these type of disputes. It
is somewhat disturbing.
On arbitration, it just seems like it ought to be, in a
case like this, optional. And it certainly shouldn't apply to
Mr. Johnson. Why do you think a public hearing, in a public
courtroom, with a judge paid for with public funds, charged
with being fair and impartial, is so important in resolving
disputes of any nature?
Mr. Poe. Oh, I am a great believer in the jury trial. I
just think it is one of the greatest things we have in our
judicial system, whether it is a civil case or a criminal case.
I heard over 1,000 jury trials.
And so I think the public courtroom and our philosophy in
the Constitution is fundamental. And so I am a great believer
It seems to work because it is public, and you have the
jury, and you have the judge, and you have both sides, and you
are making your case--the lawyers are making their case before
a public forum. So I am a believer in that.
Mr. Johnson. And on the other hand, an arbitration
proceeding is secret. Rules of evidence, rules of procedure,
don't apply. And an appeal is limited. So having said that, I
will close my comments at this time.
Thank you, Mr. Chairman.
Mr. Scott. Thank you, and I thank the gentleman for his
The gentleman from North Carolina?
Mr. Coble. Thank you, Mr. Chairman.
Mr. Chairman and Mr. Ranking Member, a very distinguished
We appreciate you all being here, but particularly you, Ms.
Ms. Jones. Thank you.
Mr. Coble. Ms. Jones, how long after the assault was the
medical examination performed?
Ms. Jones. The next morning.
Mr. Coble. By a physician?
Ms. Jones. Yes, by an Army medical doctor.
Mr. Coble. And did he question you in any way about the
facts surrounding the assault or just restricted to the medical
Ms. Jones. It was a medical exam.
Mr. Coble. Do you know, Ms. Jones, whether there were
witnesses to the assault?
Ms. Jones. To the assault?
Mr. Coble. Yes.
Ms. Jones. The perpetrators that did this to me would be
Mr. Coble. And you know their identities, I presume.
Ms. Jones. We know one by name.
Mr. Coble. Okay. Did you remain employed after the assault
Ms. Jones. No.
Mr. Coble. Well, let me put my oar in these waters. Did you
have reason to believe that if you reported it that your job
might be in jeopardy? Did that ever cross your mind?
Ms. Jones. Yes, when I was imprisoned in a--locked in a
shipping container with two armed guards not letting me outside
of my door, then I think that I was very aware that my job was
They did not want me to come out because--it was not to
protect me. It was to protect them.
Mr. Coble. Yes.
Professor, in your opinion, is there a constitutional line
in the sand as to how far the Congress can extend Federal
criminal jurisdiction to conduct overseas, A?
And B, in your opinion, does H.R. 2740 stay on the right or
the appropriate side of that line?
Mr. Horton. There definitely are some limits to the
extension of extraterritorial criminal jurisdiction.
Here, there is a special hook because of the power of the
Congress to define criminal law jurisdiction in connection with
hostilities overseas, so it would come under the clause that
grants you the right to define the law of nations.
And there, a country that sends a force into the field--
that could include both uniformed military and contractors--has
the power and the right to enforce criminal law with respect to
that force that is deployed wherever they are deployed.
So it seems to me quite clear that the legislation that was
recently enacted--or recently passed by the House--is well
within the constitutional grant of jurisdiction to the extent
it is tied to a contingency operation that is occurring
Mr. Coble. Ms. Jones, as the distinguished gentleman from
California said, many people owe you profound apologies, and I
thank you very much for the courage you have shown in appearing
Ms. Jones. Thank you.
Mr. Coble. Ted, Congressman, do you want to add anything
before my red light illuminates?
As the Chairman knows, I try to comply with that red light,
Mr. Poe. No, I think it has all been covered. But the
comments from the panel regarding the apology by our
government, I think, is well taken, well deserved to Jamie
Leigh Jones and the other victims.
Mr. Coble. Ms. Jones?
Ms. Jones. And I really appreciate all of your apologies
and I take them to heart.
Mr. Coble. Thank you, Professor.
Good to have all of you with us.
Mr. Chairman, I yield back.
Mr. Scott. Thank you, Mr. Coble.
The gentlelady from Wisconsin?
Ms. Baldwin. Thank you, Mr. Chairman.
I have to echo the frustrations that have been expressed by
many, and I am sure are shared by the panel, that many of the
Federal entities that we want to question about this aren't
here, including, of course, the Department of Justice.
And your testimony is providing us with very important
information. And my question that will follow may elicit that
this is much more widespread than we could even know.
But the frustration of not being able to hold folks to
account that need to be held to account is very aggravating.
Ms. Jones, I wonder if, through your work with the Jamie
Leigh Foundation, you might have an answer to this question.
This past March there was an article in the New York Times
titled ``The Women's War.''
It was written by Sarah Corbett, and it detailed the
experiences of about--well, 160,000 women soldiers who have
been deployed to Iraq and Afghanistan. Corbett cites a 2003
study that was financed by the Department of Defense.
And in that study it was revealed that nearly one-third of
a nationwide sample of female veterans seeking health care
through the V.A. said that they had experienced rape or
attempted rape during their time of service.
Of that group, 37 percent said that they were raped
multiple times and 14 percent said that they were gang-raped.
What I am wondering is if we know whether these absolutely
stunning statistics would apply also to women contractors
serving in Iraq.
Are there statistics on sexual assault of women contractors
abroad? Are any similar studies available that you know of on
the experiences of women contractors?
Ms. Jones. Not to my knowledge, but so far there are so
many women coming forward I can't even count them. And there
hasn't been a woman once come to the Jamie Leigh Foundation and
state that nothing has happened to them.
All the women that have come to my foundation have a story,
and a significant story, and they all deserve their day in
criminal court. And you know, their letters--you know, they
make me cry, and that is why I am here today, not just for
myself, but for these women that deserve justice.
Ms. Baldwin. I know that partially in response to these
studies that the U.S. military has worked to become more
sensitive to women, and they now have regular mandated
workshops on preventing sexual harassment and assault.
I am wondering whether there are similar educational
programs for U.S. government contractors.
And in particular, in your experience, Ms. Jones, did you
learn about the topics of sexual harassment or preventing
sexual assault in any of the training that you might have
received before you left for Iraq? And did you receive any
training before you left for Iraq?
Ms. Jones. The only thing that they told women to be aware
of was insurgency. They never once trained us about how to
maintain an environment in the workplace free of sexual
harassment and assault.
I applaud the military. My husband is in the Navy, and he
brings home booklets full of stuff about how to behave in a
military environment, what to do, what not to do in regards to
women, and men, in that matter.
If Halliburton maybe would take the time and do the--maybe
even the exact same thing the military does, because they are
working among the military personnel, I think that that would
be absolutely wonderful. But they didn't.
Ms. Baldwin. Thank you again for your testimony.
Mr. Scott. Thank you.
The gentleman from Alabama, Mr. Davis?
Mr. Davis. Thank you, Mr. Chairman.
Ms. Jones, let me echo everyone today who has thanked you
and complimented you for your courage.
Ms. Jones. Thanks.
Mr. Davis. Someone who was once very close to me, a young
woman, experienced the same thing that you did. She was drugged
and sexually assaulted against her will, and I still remember
her telling me in some detail about it.
She was unwilling to report her crime because she felt that
people wouldn't believe her version of what happened. And all
too many women realize that is what happens in so many of these
You walk in, you tell what someone did to you, and you are
the person who falls under the critical microscope. You are the
person who is doubted at every turn.
So thank you for having the courage to come forward.
Hopefully it will inspire other women to do the same.
Let me say this much about the substance of this matter. I
think there are two wrongs here. One of them has to do with the
complete inattention of the element of the U.S. government that
is charged with prosecuting criminal laws.
Mr. Horton, or Professor Horton, I noticed a very
interesting sentence in your opening statement, ``There has not
been a single completed prosecution of a crime involving a
contractor implicated in violent crime coming out of Iraq,
although the reported incidents which would have merited
investigation are legion.''
This is how I translate that: There is essentially a
protection-free zone in Baghdad if you work for an American
contractor. And I am sure that the Halliburtons of the world
have figured that out by now.
I suspect that one of the reasons why civilians who are
working for your company or your former company and others are
mistreated and subjected to criminal activity and to tortious
activity is, in part, because a lot of the wrongdoers know very
well that they are not going to be prosecuted, because they
know very well that the government is not going to be
interested in going after them for their misconduct.
Would you agree with that, Ms. Jones, that there is some
perception on the part of some of these contractors that they
will not be prosecuted?
Ms. Jones. I absolutely agree with it. I mean, so many
women are coming forward with similar events that have occurred
that have occurred to me. I mean, obviously, they know that
they can get away with it.
Mr. Davis. And I will echo Mr. Lungren's comment that I
struggle to understand the priorities of the Department of
Justice under the best of circumstances.
If you had been a Democratic politician in Alabama and
someone said something about you, they would have been all over
that like white on rice. But a young women saying that she was
raped obviously did not produce the same level of attention.
And based on the absence of prosecutions in any single case
coming out of Iraq, again, I am stunned by the comparison.
If you were in Greene County, Alabama, and someone said you
were trying to manufacture absentee ballots, it would have
attracted an enormous amount of interest.
There is another wrong here, though, and Mr. Johnson or
Congressman Johnson touched on it. This is exactly the kind of
case where arbitration clauses should not be applicable.
Now, if somebody is saying my cable T.V. company charged me
too much money, maybe there ought to be binding arbitration
there. If someone is saying I am trying to get 2 months' extra
leave and they are saying I should get 29 days extra leave,
maybe that is a place for arbitration.
But when someone is alleging a serious tortious assault,
that ought to be determined--liability, in my mind, ought to be
determined in a court of law. It ought to be determined by a
jury of one's peers.
You ought to have a chance to look your accusers in the eye
and to make your claim and to recover damages, and a jury ought
to decide that, not one individual sitting somewhere who may or
may not be disposed to be sympathetic to your circumstances.
And I will make this my last comment. It speaks to a
broader point. There are too many mandatory arbitration clauses
that have worked their way into the fabric of the employment
world. They are too excessive.
Most people, like you, Ms. Jones--they don't read that
stuff. When you get hired, you want to know when do I start.
You don't do the fine print on a mandatory arbitration clause.
You don't go out and get a lawyer to interpret it to you. There
are too many of these things.
And one of the things, Mr. Chairman, that I hope this
Committee will do over the course of the next year is to do a
more searching scrutiny of these clauses and to figure out what
we can do to uproot some of them.
My final 30 seconds--I have a bill that I have introduced
which deals with former Guard and reservists who are coming
back home to work at their old company and who are being
terminated because they served their country.
They go back to work for a store or a company and they are
fired because they missed too much time serving their country.
A lot of those individuals don't get a chance to go to court
because of binding mandatory arbitration clauses. My bill would
eliminate the clauses in those cases.
Thank you again for your courage, Ms. Jones.
Ms. Jones. Thank you.
Mr. Scott. Thank you, Mr. Davis.
Ms. Jackson Lee?
Ms. Jackson Lee. I started my comments this morning, Ms.
Jones--and you are from Texas, so there is a bond here that I
hope you realize is in truth and honesty--that, in fact, you
represent voices that cannot be heard.
And I want to reaffirm the fact--and I thank your father
and mother, lawyers, your husband, the other victims that are
here--thank you for your service to this country. Thank you for
your commitment and bravery to this country.
And I hope that Congressman Poe and myself and the Members
of this Committee can work together, because we would like to
hear from those who are not at the table.
Your foundation has generated names and if they are
desiring of those names to be public, I would like to work with
Ms. Jones. Okay.
Ms. Jackson Lee. Because as I indicated, I gave you the
small story of a young woman who was on the way where you had
gone, and she was very proud. She was going to be gone a year.
And I think of her even today, because she is heading out as we
And so it is imperative that we take up a number of the
issues that my colleagues have said, and I would like to pose
them with you using Professor Horton's very astonishing fact
and raise some questions with you on that.
I do want to go to Congressman Poe again, Congressman,
because I want to know, did you separately deal with
Halliburton and KBR? We have been using Halliburton, and I know
that in my absence maybe KBR was mentioned.
But let us be very clear of the two entities or the
entities together, but, in fact, the culpability of these
companies falls where?
Did you reach out to both? Did you find that they were
separated at the time? Are they not separated? What did you
find out in your fact finding?
Ms. Jones. Well, I remember when my Grandma asked me who I
was going to go work for overseas, the only answer that I knew
to say was Halliburton.
Ms. Jackson Lee. And clearly, as the war started, you were
correct to be saying that. And so I understand that in terms of
I want to ask Congressman Poe who he reached out to and
what did he find out.
Mr. Poe. We started with the State Department; expected, as
we were informed, that the State Department would follow up on
all the prosecutions.
We did not deal with KBR or Halliburton. My understanding
is they are not the same entity anymore. But this is a criminal
investigation that we expected the Justice Department, who
isn't here, to follow up on and prosecute.
So we didn't deal with either entity at all.
Ms. Jackson Lee. Well, I think the point should be made you
had a life and death situation to deal with, and you needed to
rescue someone. And clearly, your task was completed--that is,
to save her life and get her out of there.
And so let me--and I appreciate that. And the reason why I
mentioned that is because you are right. I think the Department
of Justice owes us its duty to investigate and to determine who
the culprits are and to have those particular entities,
corporate and otherwise, prosecuted to the fullest of the law.
And those companies have a responsibility to come forward,
to shine the light on, to stand up and indicate here is our
corporate structure, here is who was here, here is who was not
here, so that, in essence, the investigation can go forward.
My colleague, Mr. Weiner, said it is a shame that American
tax dollars would be used to commit criminal activity, violent
criminal activity. What American would say send my tax dollars
to make sure that someone is criminalized?
So let me proceed, Mr. Horton, to the outrage of your
astonishing fact and suggest that legislation needs to be in
place. And I have not looked at the legislation recently that
we have moving through this Congress.
That is, the failure of an appropriate law enforcement
authority to conduct a prompt and timely investigation of the
allegations while Ms. Jones was still in theater. The facts
should note that Ms. Jones was held without her permission. She
was not given food or water.
And can you believe that we believe that we have funded FBI
agents on the ground in theater and we did not have an
investigation on the ground? We did not have the FBI come there
and say where is the rape kit, where is this doctor, what
hospital, where is the scene, let us take pictures of the place
where she was incarcerated.
Can you believe that did not happen? Professor Horton, what
do we need to do about this?
Mr. Horton. Well, I think just start with some simple
numbers. If we go and look at the U.S. embassy's Website for
Baghdad, we will see that there are 200 Department of Justice
employees in the Green Zone at the embassy.
And out of that total, how many of them are dedicated to
deal with questions of crimes involving contractors? Well, the
answer, Congresswoman, appears to be zero. None. So it is a
matter of incomprehensible resource allocation.
I would just note another fact. Thirty-eight Department of
Justice professionals--that is lawyers--were sent to Iraq to
assist in setting up the international tribunal that tried
Saddam Hussein and members of his regime.
Ms. Jackson Lee. Say that number again. I am sorry.
Mr. Horton. Thirty-eight lawyers were sent there to assist
in connection with that tribunal, criminal justice process.
Perfectly reasonable move. I don't question that.
But to me, it is incomprehensible that we see that level of
dedication to something which is, from our perspective, really
a political act, not really a criminal justice matter, and we
see no allocation of resources to deal with the crime situation
within the contractor community.
I think that is letting down our contractors, the employees
Ms. Jackson Lee. In my 30 seconds of closing, to simply say
that we should legislatively, then, establish this unit with
the FBI personnel, with the Justice Department lawyers, and an
in-theater investigation should ensure immediately protection
of all the witnesses and the victim and, if necessary, to be
tried in theater.
With that, Mr. Chairman, I thank you and I look forward to
working with this Committee to respond to this huge injustice.
Thank you again for your service, Ms. Jones.
Ms. Jones. Thank you.
Mr. Scott. I thank the lady for her questions.
And the recommendation of the investigatory unit is in the
bill that we have passed. It is sitting over in the Senate. So
we would hope that the Senate would take the bill up and pursue
The gentleman from Texas?
Mr. Gohmert. Thank you, Mr. Chairman.
Just a couple of follow-up matters. The Chairman, for whom
I have immense respect, had pointed out, you know, what a
hearing and what a disgrace, and pointed out that we are asking
the victim questions about the law.
And what I found in my 3 years in Congress is that too
often we don't ask the people most closely associated with
problems what they see as a proper fix.
And to me, this really is a heavyweight matter. As a judge,
I saw where the state legislature made conflicting laws and as
a result they gave technicalities for people to get off down
the road. So I want to make sure we get this right.
And if I could ask the professor a question about statute
of limitations, because, Chairman, you had mentioned that, and
a--brilliant, intuitive, right to the heart of it.
Professor, as I understand it and recall from the military,
there is a 5-year statute of limitations on an offense like
this. I don't know if that would apply. Do you know what
statute of limitations would apply here?
Mr. Horton. That is something I would have to research and
get back to you on. I don't know.
But actually, raising the military point is another good
point, because we haven't discussed in the course of this
hearing the possibility of using the military criminal justice
process to address it.
That is also an option that is out there, the UCMJ. And its
availability would turn on a number of facts, including who the
So obviously, if we had military personnel or reservists or
others who are within the grant of jurisdiction in Article 2 of
the UCMJ, that would be another possibility, and then we would
get the 5-year statute of limitations.
Mr. Gohmert. Because listening to this hearing, it does
sound from both sides of the aisle that one of the problems
that we keep coming back to is I don't think we have made clear
who is in charge in this situation.
And what I have seen also is that doctors--they are not
criminal experts, so whoever appears to be in charge is the one
they end up giving stuff to. They require somebody on the scene
to tell them--and I hope that we can get that fixed.
And I am concerned about the justice's non-appearance, as
my colleagues are, but I was presented a letter that was sent
by a Clinton administration--Attorney General Reno basically
taking the same position that even when there is--we are going
to be asked questions about procedure, if there is an open case
that it might pertain to, then we don't want to come testify.
And I really appreciated the Chairman stepping back here--
sometimes you wonder what we are talking about. The Chairman is
trying to figure out a way we can get to the heart of it and
really appreciate that.
And I think a bipartisan letter where it doesn't matter
which Administration, whether it is Clinton or Bush or whoever
in the future--we ought to lay out some ground rules that we
can agree with.
Look, we are not going to ask you about a pending case that
you can't answer, but you need to come forward. If the Justice
Department doesn't come forward and tell us proper
applicability of laws, then that whole side is not being
represented, and we may make a mistake in prescribing the
So I would applaud, Chairman Conyers, your effort in doing
that. We really ought to be able to lay out ground rules that
can force the hand of any Administration's justice department
to come before this Committee and explain their position on the
laws, because when we get laws wrong, people suffer.
And I applaud, Chairman Scott, your having this hearing and
having it so quickly. And I hope we can get to a solution.
Oh, and one other thing. I may be the only person that went
through international arbitration testing for 3 days. And what
I have seen is--my colleagues are exactly right.
When it pertains to something this tortious, arbitration
rules of evidence are far too lax to be the appropriate venue
for something like this. So that may also be something we----
Ms. Jackson Lee. Would the gentleman yield for a moment?
Mr. Gohmert. Yes.
Ms. Jackson Lee. I appreciate your comment on that. I just
thought that possibly we could have a criteria that says if it
is a criminal matter, then--that the provision that maybe an
employee signs is waived, and that might be one element that we
might consider as, you know, having arbitration but waiving it
if it happens to be a criminal matter.
Mr. Gohmert. Thank you.
Ms. Jackson Lee. I yield back.
Mr. Gohmert. I agree.
And I yield back, Mr. Chairman. Thank you very much.
Mr. Scott. Thank you.
That legislation is pending now in another Subcommittee.
I would like to thank the witnesses for your testimony
today. Members may have additional questions for our witnesses
which we will forward to you and ask that you respond as
promptly as you can so they may be part of the record.
Without objection, the hearing record will remain open for
1 week for submission of additional materials.
And I would recognize the Chairman of the Committee for a
Mr. Conyers. Well, I thank everybody, but this has been
helpful for all of us, and I thank particularly my Republican
I have talked to Lungren and Coble and Judge Gohmert, and
we are going to communicate with the attorney general and the
secretary of defense and work this thing out more quickly. I
mean, we are all lawyers. We don't need to hold hearings on
Criminal Law 101. And that is what we are here to expedite.
The whole thing is not how many hearings can you hold. It
is how can you make the law more efficient and make it work.
And that is what this hearing has done in a great way, thanks
to all of our witnesses.
Ms. Jones. Thank you.
Mr. Scott. Thank you.
Finally, as the Chairman has indicated, notwithstanding the
absence of Department of Justice officials today, we will get
answers and, if not soon, we will have other additional
hearings in which they will have an opportunity to explain
In any event, Ms. Jones, we may need more research, but I
think most of the people up here believe that the statute of
limitations on all of the criminal offenses that have been
alleged in your case extends into the next Administration.
And so if this Administration will not investigate and
prosecute, I am sure the next Administration will.
With that, without objection, the Committee stands
[Whereupon, at 12:11 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
Letter to the Honorable John Conyers, Jr., Chairman, Committee on the
Judiciary, from Brian A. Benczkowski, Principal Deputy Assistant
Attorney General, U.S. Department of Justice, Office of Legislative