[Senate Hearing 110-744]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-744
 
                        CLOSING LEGAL LOOPHOLES:
                      PROSECUTING SEXUAL ASSAULTS
                   AND OTHER VIOLENT CRIMES COMMITTED
                     OVERSEAS BY AMERICAN CIVILIANS
                        IN A COMBAT ENVIRONMENT

=======================================================================

                                HEARING

                               BEFORE THE

                SUBCOMMITTEE ON INTERNATIONAL OPERATIONS
                      AND ORGANIZATIONS, DEMOCRACY
                            AND HUMAN RIGHTS

                                 OF THE

                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 9, 2008

                               __________

       Printed for the use of the Committee on Foreign Relations


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                     COMMITTEE ON FOREIGN RELATIONS

                JOSEPH R. BIDEN, Jr., Delaware, Chairman
CHRISTOPHER J. DODD, Connecticut     RICHARD G. LUGAR, Indiana
JOHN F. KERRY, Massachusetts         CHUCK HAGEL, Nebraska
RUSSELL D. FEINGOLD, Wisconsin       NORM COLEMAN, Minnesota
BARBARA BOXER, California            BOB CORKER, Tennessee
BILL NELSON, Florida                 GEORGE V. VOINOVICH, Ohio
BARACK OBAMA, Illinois               LISA MURKOWSKI, Alaska
ROBERT MENENDEZ, New Jersey          JIM DeMINT, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHNNY ISAKSON, Georgia
ROBERT P. CASEY, Jr., Pennsylvania   DAVID VITTER, Louisiana
JIM WEBB, Virginia                   JOHN BARRASSO, Wyoming
                   Antony J. Blinken, Staff Director
            Kenneth A. Myers, Jr., Republican Staff Director

                                 ------                                

             SUBCOMMITTEE ON INTERNATIONAL OPERATIONS AND 
               ORGANIZATIONS, DEMOCRACY AND HUMAN RIGHTS

                     BILL NELSON, Florida, Chairman

RUSSELL D. FEINGOLD, Wisconsin       DAVID VITTER, Louisiana
ROBERT MENENDEZ, New Jersey          GEORGE V. VOINOVICH, Ohio
ROBERT P. CASEY, Jr., Pennsylvania   JIM DeMINT, South Carolina
JIM WEBB, Virginia                   JOHN BARRASSO, Wyoming

                                  (ii)

  


                            C O N T E N T S

                              ----------                              
                                                                   Page

Feingold, Hon. Russell D., U.S. Senator From Wisconsin...........    40


Fidell, Eugene R., Esq., President, National Institute of 
  Military Justice and senior partner, Feldesman Tucker Leifer 
  Fidell, LLP, Washington, DC, prepared statement................    26


Kineston, Mary Beth, former KBR contractor, Camp Anaconda, Balad, 
  Iraq, prepared statement.......................................     3


Leamon, Dawn, former KBR contractor, Camp Harper, Basrah, Iraq, 
  prepared statement.............................................    11


Mandelker, Hon. Sigal P., Deputy Assistant Attorney General, 
  Criminal Division, Department of Justice, Washington, DC, 
  prepared statement.............................................    41


Nelson, Hon. Bill, U.S. Senator From Florida.....................     1


Reed, Robert, Associate Deputy General Counsel, Military Justice 
  and Personnel Policy, Office of The General Counsel, Department 
  of Defense, Washington, DC, prepared statement.................    34


Starr, Gregory B., Acting Assistant Secretary, Bureau of 
  Diplomatic Security, and Acting Director of the Office of 
  Foreign Missions, Department of State, Washington, DC, prepared 
  statement......................................................    31


Wiegmann, John B., Assistant Legal Advisor For Management, 
  Department of State, Washington, DC, prepared statement........    48


              Additional Material Submitted for the Record

Response to An Additional Question Submitted for the Record to 
  Acting Assistant Secretary Gregory Starr by Senator Feingold...    56


Responses to Additional Questions Submitted for the Record to 
  Robert Reed, Associate Deputy General Counsel, Military Justice 
  and Personnel Policy, Office of the General Counsel, Department 
  of Defense, by Senator Feingold................................    57


Prepared Statement of Hon. Barack Obama, U.S. Senator From 
  Illinois.......................................................    61


Prepared Statement of Jamie Leigh Jones..........................    61


Prepared Statement of Hon. Ted Poe, U.S. Representative From 
  Texas..........................................................    67


Prepared Statement of Hon. Louise M. Slaughter, U.S. 
  Representative From New York...................................    67

                                 (iii)

  


                  CLOSING LEGAL LOOPHOLES: PROSECUTING
                   SEXUAL ASSAULTS AND OTHER VIOLENT
                      CRIMES COMMITTED OVERSEAS BY
                         AMERICAN CIVILIANS IN
                          A COMBAT ENVIRONMENT

                              ----------                              


                        WEDNESDAY, APRIL 9, 2008

                           U.S. Senate,    
             Subcommittee on International 
              Operations and Organizations,
                       Democracy, and Human Rights,
                            Committee on Foreign Relations,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:33 a.m., in 
room SD-419, Dirksen Senate Office Building, Hon. Bill Nelson 
(chairman of the subcommittee) presiding.
    Present: Senators Nelson and Feingold.

            OPENING STATEMENT OF HON. BILL NELSON, 
                   U.S. SENATOR FROM FLORIDA

    Senator Bill Nelson. Good morning. We are having a hearing 
of the subcommittee of the Senate Foreign Relations Committee.
    We want to take this opportunity to hear some witnesses 
that can bring to light a number of circumstances that are 
occurring, and we are very pleased to have witnesses from the 
Department of Justice, the Department of State, and the 
Department of Defense here, as well, so that they can lend 
their expertise to the circumstances that we find ourselves in, 
in order to determine an outcome of whether or not the law, in 
fact, is being obeyed, and, if not, what to do about it, or, if 
the law does not, in fact, cover some of these circumstances, 
should there be an additional law.
    So, let me begin by recalling some stories that have been 
found on the newspaper pages recently.
    One involves a Texas woman who was working as a civilian 
contractor in Iraq about 2 years ago. She was drugged, she was 
gang-raped, and it was gang-rape by coworkers. She was held 
against her will in a storage locker. And yet, her assailant 
remains free.
    Another story involves a woman from my State of Florida. 
She worked in Iraq for the same American company, and she also 
reported that she was sexually assaulted by a male coworker, 
and he wasn't charged either.
    More recently, just a couple of months ago, a Midwestern 
woman, working for the same employer, reported that she was 
gang-raped by a coworker and a soldier at a U.S. base in Iraq, 
and her bosses, she says, discouraged her from reporting the 
assault.
    And the latter, more recent case is among our witnesses who 
will testify today to help bring into sharper focus the problem 
of sexual assaults against American women working in Iraq and 
Afghanistan and the question about their ability to find 
justice.
    Since last December, this subcommittee has been in contact 
with the Departments of Defense, State, and Justice, trying to 
ascertain the scope of this problem. And I've asked for the 
number of sexual assaults that have been reported to these 
departments. I've asked for an explanation of the policies in 
place to respond effectively to the allegations of sexual 
assault. And I've asked what steps the respective Departments 
are taking to ensure the full investigation and prosecution of 
these cases. And, although the Departments have, on the whole, 
certainly cooperated with my request, I think we have to paint 
the full picture of the number of sexual assaults perpetrated 
against these American contractors. And I don't believe that 
the respective Departments have clear policies in place to 
address the crimes committed by and against American 
contractors working alongside our troops.
    We have an unprecedented number of contractors posted in 
war zones, and if they are victimized by their colleagues or by 
soldiers, then the concern of this committee is that they will 
end up in legal limbo. For example, the Sexual Assault 
Prevention and Response Office of the Department of Defense 
says it is not even aware of the procedures that the military 
criminal investigative services would take if they encountered 
a civilian sexual assault or harassment case, except for 
referring the victim to medical treatment. Now, that's 
disturbing. We've got a law. As a matter of fact, we've got 
three laws on the books. We have procedures. And it needs to be 
clearly understood by the Departments what the procedures are 
and what actions should be taken.
    And that's the whole purpose of this hearing, in our 
oversight role of the legislative branch overseeing the 
executive branch.
    Now, one of the other things we're going to look into is 
what appears to me to be an apparent lack of determination or 
desire on the part of the Justice Department to seek criminal 
prosecution of these crimes, when, in fact, the laws on the 
books that gives the Justice Department that authority.
    And I'm told that, together, the Departments of State and 
Defense have referred numerous cases to the Justice Department, 
but, to this day, not a single one of these cases has been 
prosecuted. And it's certainly not that there are no legal 
mechanisms in place because there are. On the contrary, the 
Justice Department possesses the ability to prosecute such 
cases under the Military Extraterritorial Jurisdiction Act, M-
E-J-A, MEJA. And that was passed into law in the year 2000. 
This law provides that persons employed by or accompanying the 
Armed Forces overseas may be prosecuted for any offense that 
would be punishable by imprisonment for more than 1 year. The 
law's on the books, ``employed by or accompanying the Armed 
Forces,'' overseas may be prosecuted for any offense that would 
be punishable by a year or more. That's the law.
    I am deeply concerned with the Justice Department's limited 
use of this law. And we're going to explore that today. I've 
asked the Department to address the adequacy or inadequacy of 
the existing legal authorities and policies; and if there's 
something inadequate, we need to know about it and correct it.
    In the absence of criminal charges, the only option for 
these victims is the civil system. But, in the few cases that 
have come to light, the victims' employers have moved to be 
heard in private arbitration; and, under this system, the 
victims' stories never see the light of day. There's no jury, 
there's no public record. And so, the bottom line is, American 
women working in Iraq and Afghanistan continue to be sexually 
assaulted while their assailants go free. This injustice 
results simply because these crimes happen abroad within the 
theaters of operation of our Armed Forces.
    Now, when similar crimes are committed anywhere within the 
United States, on or off a permanent U.S. military base or at 
one of our embassies overseas, the authority and responsibility 
to prosecute is clear. Any legal loopholes that strip American 
citizens of their access to justice have to be closed. And the 
Departments involved--State, Defense, Justice--we need to come 
to terms and put policies and procedures in place to ensure the 
close coordination and cooperation. And hopefully that's what 
we're going to try to get at today.
    And so, what I've asked is, I've asked the second panel to 
start first. And this is because I wanted to set the table--we 
have an expert on the law, Mr. Fidell--am I pronouncing that 
right?
    Mr. Fidell. I prefer Fidell.
    Senator Bill Nelson. Fidell. OK, Mr. Fidell. We have an 
expert on the law, and we'll get into that.
    And then we have two very courageous witnesses who are 
victims, one of whom I've already referred to as the assault 
having taken place just 2 months ago.
    So, let me start first with Mary Beth Kineston.
    Ms. Kineston, tell me where you live and tell me something 
about your family, your marriage status, et cetera.

 STATEMENT OF MARY BETH KINESTON, FORMER KBR CONTRACTOR, CAMP 
                     ANACONDA, BALAD, IRAQ

    [The prepared statement of Mrs. Kineston follows:]

 Prepared Statement of Mary Beth Kineston, Former KBR Contractor, Camp 
                         Anaconda, Balad, Iraq

    I open by thanking Senator Bill Nelson of Florida and his staff for 
inviting me to come to testify before this honorable body to offer any 
assistance I can in helping the Foreign Relations Committee further its 
important legislative goals.
    I hold a commercial truckdriver's license and my husband John and I 
joined KBR on January 19, 2004, in order to go to Iraq and work for KBR 
at Camp Anaconda in what appeared to be an exciting and well paying 
truck driving job. I would earn compensation at the rate of about 
$84,000.00 per year tax free when employed at KBR. When I was hired I 
expected that KBR would protect my physical safety while working as far 
as it was able and I did not expect any special treatment merely 
because I was a female. I am a hard worker and a loyal employee and can 
deal with my share of hardships as evidenced by the fact I voluntarily 
agreed to work for KBR at a forward combat base in a war zone in Iraq 
as a condition of my employment. It is undisputed I was qualified for 
KBR employment as a truckdriver at all times relevant. However, that 
being said, I was not expecting to trade my self-respect or right to be 
free from sexual assault as a condition of continued KBR employment and 
I did not view myself as selling my human dignity as a female employee 
when I accepted KBR paychecks. I also expected that when I made a 
complaint about such activity, it would be thoroughly investigated in 
good faith, that is, with an intent to resolve the problem immediately, 
and that I would be protected from the perpetrator in the mean time. I 
also expected that if the laws were broken by KBR relative to gender 
discrimination or if I were a victim of a crime I would have an 
adequate legal remedy for the offense. I expected that given KBR had a 
sexual harassment policy and given KBR was obligated to abide by 
Federal civil rights laws regarding gender discrimination it would 
protect me in the event I was a target of any sexual misconduct by 
coworkers.
    I can assure this committee that none of my expectations about KBR 
were fulfilled.
    What I endured at KBR was sexual harassment by my coworkers 
including their openly asking me if I shaved my pubic hair or was 
having sex with my husband, to managers urinating in front of me when I 
needed restroom breaks on the job, or denying my fellow female drivers 
and I food and water in 120 degree heat while the men had these things 
and the females waited thirsty and hungry in convoy lines that were not 
moving for hours on end. Moreover, I was a victim of two sexual 
assaults, one by a third country national who raped me in the cab of my 
water tanker truck while I was waiting in a refilling line, and another 
by a coworker who decided it was funny if he put his hands down my 
pants, after he knew about my first sexual assault, when I was riding 
with him and another male employee at the base. This comes after hand-
drawn pornography was placed into the cab of my truck showing a woman 
with her legs spread and I made numerous complaints about that and the 
way I was being treated to higher KBR management at Anaconda and in 
Houston, TX, via the Internet. My complaining about the way I was 
treated to to KBR male managers over 10 times ultimately lead to my 
termination of employment by my supervisors for retaliatory and false 
reasons, after a secret meeting was had between a KBR human resources 
officer and over 20 KBR men in attendance, including a man who sexually 
assaulted me, and who incredibly complained that I was discriminating 
against the men because I and another female were given a pickup truck 
to transport ourselves around the base for our own safety, after the 
second sexual assault took place.
    With respect to my attempts at criminal prosecution of my 
tormentors at KBR; after I was raped in the cab of my water tanker 
truck, I reported the matter to a U.S. Army JAG Corps officer at 
Anaconda and the Military Police. I asked for help and was politely 
told that the JAG does not support civilians on the base. Having 
nowhere else to turn, I sought help with KBR management, and as noted, 
I was either ignored or disciplined in retaliation and nothing was done 
to bring the perpetrators of any sexual assault to American justice. 
Indeed, the investigators at KBR agree in a written report I was 
sexually assaulted in my water tanker truck, but then did not release 
their investigation results to me until after I was terminated and 
brought a civil action against the company which I was forced to 
arbitrate rather than try to a jury in open court. Although I 
eventually won the arbitration claim with the assistance of my counsel; 
I was hardly made whole for my suffering and pain.
    In my opinion based upon my experience, this result is no doubt the 
consequence of a policy that delegates protection of the safety of 
civilian KBR workers by Army soldiers to KBR criminal investigators. 
Yet any person looking at my case can see that delegating the job of 
making a criminal investigation to the supervisors of criminal suspects 
yields predictable results as one who sits in judgment of themselves 
rarely finds fault. Moreover, I am not aware of any KBR-U.S. Army 
contract provision that requires KBR to turn over the results of its 
employee investigations to the Army or the Department of Justice. I am 
also not aware of KBR employees who commit criminal acts being subject 
to public confrontation and prosecution and the record of their conduct 
being made open for review by any nongovernment civilian institution.
    The net result is that when a civilian woman has been sexually 
assaulted at a U.S. military base in Iraq, she has nowhere to turn for 
a meaningful remedy and her safety is therefore not assured. The 
perpetrators in my case have not spent a day of time in jail although 
they committed crimes on what amounts to, in effect, U.S. soil and 
committed acts that in this country would never be tolerated. I did not 
sign on for this kind of treatment when I joined KBR. I did not waive 
my civil rights or surrender my dignity because I wanted a job. I trust 
this committee has been convened to do something about the injustice 
people like me have experienced and I look forward to answering your 
questions.
    This concludes my opening remarks. Thank you.

    Mrs. Kineston. I live in a city--which is a little suburb 
outside of Cleveland, OH. And I was born and raised in Ohio. 
And I'm--I've been married to my husband for 10 years, and I 
have three adult children. And I've been a truckdriver for over 
30 years.
    Senator Bill Nelson. And it was in that capacity that you 
were sent to Iraq as a civilian contract employee as a 
truckdriver?
    Mrs. Kineston. That's correct. My husband is--my husband is 
also a truckdriver, and we were doing team driving back and 
forth----
    Senator Bill Nelson. Would you make sure that microphone is 
turned on?
    Mrs. Kineston [continuing]. Across the United States. And 
we both decided that if we both went over to Iraq and worked, 
for that large salary, we could do a lot of things. We had a 
couple of weddings that we needed to pay for, and we felt we 
could pay off our mortgage and--truckdrivers don't get 
retirement, so that's--was one of our--another one of our 
biggest goals, was to collect some money for retirement.
    Senator Bill Nelson. And you went over as an employee of 
what company?
    Mrs. Kineston. KBR. Kellogg Brown and Root.
    Senator Bill Nelson. And you were over there in about 2004?
    Mrs. Kineston. I was employed at--on January 19, 2004.
    Senator Bill Nelson. Now, on a particular night in 2004, 
you were driving your truck. It was a water truck, and you were 
lined up in line to take on water----
    Mrs. Kineston. Correct.
    Senator Bill Nelson [continuing]. On your tanker truck.
    Mrs. Kineston. That's correct.
    Senator Bill Nelson. Tell us what happened.
    Mrs. Kineston. And it's just--it happened just to be that I 
had to take the night shift that night, and we had to do round-
the-clock watering and supplying the troops with water on Camp 
Anaconda in Balad. And that particular night, I was--there's no 
lights on the base after dark, so everything was pretty well 
pitch black, except there was one light that was on the pump. 
And what it is, is there's a hose that goes into the Tigris 
River, and it--they pump it out of the Tigris River, and then 
they filter it, and then they put it into our trucks. So, I was 
on top of my water truck with a flashlight, because that's how 
you had to do it. And then, when you truck was full, then you 
had to signal the pumper to shut the water off.
    Senator Bill Nelson. Let me set this setting, here. You're 
in a camp, which is a part of the bigger base of Balad.
    Mrs. Kineston. Correct.
    Senator Bill Nelson. And at night they turn the lights out.
    Mrs. Kineston. Yeah; there's no lights on the base after 
dark.
    Senator Bill Nelson. OK. And why was it that you were 
pumping your water at night?
    Mrs. Kineston. Because it was a 24-hour service that we did 
for the military. We had to do whatever they asked us to do. 
They put work requisitions in, and then that was part of the--
my job, to do that.
    Senator Bill Nelson. OK. So, you're up on top of your 
truck----
    Mrs. Kineston. Correct. And----
    Senator Bill Nelson [continuing]. On top of the tank, and 
you're pumping this water, that's coming out of the Tigris 
River----
    Mrs. Kineston. Correct.
    Senator Bill Nelson. Tell us what happened.
    Mrs. Kineston. And then, once it's full, then we have a 
ladder on the back of the truck, and I'm coming off the back of 
the truck, stepping down the ladder, and all of a sudden I feel 
these hands on my legs and on my butt. And I'm, like--you know, 
I turn around, like, shocked, because I didn't know what was 
going on, and it was the man that had his truck right behind me 
waiting to get filled up. And I quickly jumped off the truck 
and said, ``No, no, no, stop.'' And he continued his aggression 
toward me, and he--I--this is a semitruck, so I had to walk all 
the way up the side of my truck and get into the cab of my 
truck, and he followed me all the way up the side of my truck 
and into the cab of my truck. Once the door was open to the cab 
of the truck, he blocked it so I couldn't shut it. And there--
he pinned me down in the cab of my truck, and I can remember, I 
was trying to fight him off so badly that I hit the steering 
wheel of my truck so hard that the--my side of my arm was all 
black and blue for several days. And--oh, he pinned me down. He 
took my--I had shorts on. He took my shorts off. And he raped 
me.
    Senator Bill Nelson. Now, this is a large truck. This is an 
18-wheeler.
    Mrs. Kineston. Correct. Correct.
    Senator Bill Nelson. Now, did you cry out?
    Mrs. Kineston. Oh, yes.
    Senator Bill Nelson [continuing]. For help?
    Mrs. Kineston. Yeah. I was screaming and yelling the whole 
time. The only other person that was around that area, because 
we were right next to the Tigris River, was the pump operator, 
and he was Filipino, and I don't think he was--didn't either 
care to know what was going on, or he just didn't understand 
what was going on.
    Senator Bill Nelson. And were there any other trucks in 
line?
    Mrs. Kineston. No.
    Senator Bill Nelson. So, you were out there alone, with 
this one other truck behind you.
    Mrs. Kineston. Correct.
    Senator Bill Nelson. Can you describe your assailant?
    Mrs. Kineston. He was a Turkish nationalist. He got a job 
through KBR as a subcontractor for Kulak. And they were another 
contracting company that they hired to come on the base and 
also do watering. And he was a Turkish man. He was big and 
bulky, and he overcame me. And they told us, when we went over 
there, that if you point to your wedding ring and say 
``married, married,'' that they would--sometimes they would 
leave you, just, alone and they would walk away. And I remember 
distinctly saying that over and over again, ``No, no, no,'' 
and--but he wouldn't stop. He just kept--he was there for a 
purpose.
    Senator Bill Nelson. So, he raped you and left you there in 
the cab.
    Mrs. Kineston. Yeah, he--I finally had--got my leg--I 
wiggled my legs out, and I pushed him--you know, when you climb 
up a cab of a truck, you're up--you're up pretty high, so I 
kicked him out of my truck with my legs. And as soon as the 
door was cleared, I slammed the door shut, I locked the door, 
and I drove away.
    Senator Bill Nelson. All right. Tell us what happened after 
that.
    Mrs. Kineston. As I was--the KBR sleeping area was on the 
other side of the base--I'm sorry.
    Senator Bill Nelson. That's OK. We want to hear the story, 
and we want to hear, now, what happened in your attempts to 
report this rape.
    Mrs. Kineston. Well, this is part that I get upset about, 
because I was--they get--everybody on the base gets a radio, 
and that's solely for your safety. And so, I was driving back 
to my sleeping quarters as fast as I could, and on--I'm yelling 
and screaming on the radio, over and over and over again, for 
my supervisors or somebody to answer, and nobody would answer 
the radio.
    Senator Bill Nelson. And all the time you are driving back 
to your part of the camp, the base. And once you get back 
there, nobody has responded on the radio to your cries for 
help, and then what happens?
    Mrs. Kineston. Well, when I got--when I finally did pull 
in, I got, like, a worker that is, like, three levels down from 
my supervisor, and he picks up the radio, and he says, ``What 
do you want? You woke us up.'' And I said, ``I need to speak to 
you immediately. And I need to talk to you right away.'' And he 
goes, ``Well, give us a couple of minutes, and''--and he goes--
I go--``Where are you?'' And I said, ``I'm in front of the 
administration office, and I need to talk to you right away.''
    Senator Bill Nelson. About what time at night is this?
    Mrs. Kineston. Well, it's--now it's about 10:30, quarter to 
11.
    Senator Bill Nelson. OK. And then what happened?
    Mrs. Kineston. Then my supervisor showed up and this other 
guy that answered the--finally answered the radio, and he--I 
just--I'm just so upset about the way they treated the whole 
incident. They--I told them everything that had happened, and 
they said, ``Oh, OK, well, we'll just call security and you can 
tell your story again.'' And they called security, and I was 
inside this room for, like, over 2 hours, and I--and I was 
telling them everything. And the thing of it is, Senator, that 
there were women on that security team, and they didn't bring 
one of those women in there to listen. And I was just so 
embarrassed about saying it over and over and over again. And 
then, the--they didn't offer to take me to the hospital, they 
didn't offer to--they didn't even walk me back to my sleeping 
container. They didn't even offer to walk me back. I had to 
walk back, in the dark, by myself.
    Senator Bill Nelson. Tell us, where was your husband?
    Mrs. Kineston. He was out on convoy. He was down by 
Baghdad.
    Senator Bill Nelson. And so, he was gone for several days.
    Mrs. Kineston. Correct.
    Senator Bill Nelson. And they had allowed you and your 
husband to have a residential area together.
    Mrs. Kineston. Correct.
    Senator Bill Nelson. So, you had to walk back, by yourself, 
through the dark----
    Mrs. Kineston. Right.
    Senator Bill Nelson [continuing]. Back there. How many 
people on the all male security team did you meet with that 
night?
    Mrs. Kineston. There was--I would say there was about five, 
all together.
    Senator Bill Nelson. And did they say that they were going 
to do anything about this?
    Mrs. Kineston. Oh, yeah, they promised to--you know, they 
said, ``Oh, we'll take care of it, don't worry about it. Don't 
worry about it, we'll take care of it.'' And I just went back 
to--you know, I was so in shock, and I just couldn't believe 
that I'm in a war zone, and I had to worry about my coworkers. 
I should have been worried about getting hit by incoming 
attack, and now I have to worry about being attacked by my 
coworkers.
    Senator Bill Nelson. After you went back to your place 
where you lived, your residential-like trailer, what happened 
then?
    Mrs. Kineston. I--you know, they didn't even say, ``Oh, 
well, Mary Beth, you go ahead and take the next couple of days 
off, don't worry about it. We'll--you know, you need to 
take''--they didn't even say that to me. I had to say to them, 
``Don't expect me at work tomorrow, because I'm not coming 
in.'' And so, I went back to my quarters, and I just--I think I 
stood in the shower for, like, 3 hours, and then I just--I just 
was in shock the whole--the rest of the day, the next day.
    Senator Bill Nelson. Did you return to work shortly 
thereafter?
    Mrs. Kineston. Yeah, I was off the next day, but the 
following day, I did report to work. And I did all the--my 
whole routine, including the fact--getting back into the water 
line to fill up my truck. And when I was back in the water 
line, two trucks behind me was the man that raped me that--that 
very next day. So, KBR didn't do anything about anything that I 
had reported. And when I saw--when I saw him in the line, I 
immediately locked all the doors on my truck, and I got on the 
radio, and I don't care what KBR said, because when you hit the 
ground at KBR, they tell you, ``You're not allowed to talk to 
the military, and you're--and we're a separate entity, and if 
you have any problems, then you call KBR.'' Well, I ignored 
that, because I was scared to death about this man being in the 
same water line again with me. So, I immediately got on the 
radio and I called for the MPs, and I called, and they were 
there immediately. And, Senator, they were not only there 
immediately, they--I told the man--I told the officer, I said, 
``That man that's in that truck two doors--or two trucks behind 
me raped me, two night ago.'' They immediately dragged him out 
of the truck, put handcuffs on him, and took him to jail.
    Senator Bill Nelson. This is the Military Police at the 
base?
    Mrs. Kineston. Correct.
    Senator Bill Nelson. What happened then?
    Mrs. Kineston. They took him to jail, and then the officer 
said to me--and by that time, now, all of KBR is there, and 
they're all saying, ``Oh, what's wrong? What's wrong?'' And I 
wouldn't even talk to the KBR people. I only did exactly what 
the Military Police were telling me to do. And they said that I 
needed to come and give a statement of what was going on. And 
that's what I did.
    Senator Bill Nelson. To the Military Police.
    Mrs. Kineston. Correct.
    Senator Bill Nelson. All right. Now, where in the process 
was that reported or not reported to some authority that ought 
to investigate this, as to whether or not a crime has been 
committed? What do you know about that?
    Mrs. Kineston. All I know is that he told me--the Military 
Police told me that their statement--my statement--I had to--I 
had to identify him, also. And that, because he was a 
contractor, that they had the right to kick off--anybody off 
the base immediately, and that's what their--that's what they 
were going to do. I guess it had to go through the commander on 
the base, because he's the one that tells you that you have to 
get off his base.
    Senator Bill Nelson. Have you ever had any indication that 
this was referred for prosecution against that contract 
employee----
    Mrs. Kineston. No.
    Senator Bill Nelson [continuing]. The Turkish national?
    Mrs. Kineston. No; never.
    Senator Bill Nelson. Was the Turkish national--was there 
done anything to him, that you know of?
    Mrs. Kineston. All I know is that he was kicked off the 
base, because after that day, I never saw him again, and he was 
doing the same job that I was doing, so--I never saw him again.
    Senator Bill Nelson. In your statement, you state, ``I 
reported the matter to a U.S. Army JAG Corps officer at 
Anaconda.'' Anaconda is your camp at Balad Air Base.
    Mrs. Kineston. That's correct.
    Senator Bill Nelson. ``I reported the matter to a U.S. Army 
JAG Corps officer at Anaconda and the Military Police. I asked 
for help and was politely told that the JAG does not support 
civilians on the base.''
    Mrs. Kineston. That's correct.
    Senator Bill Nelson. So, you tried to contact JAG to know 
your rights, and they told you that they didn't support 
civilians on the base.
    Mrs. Kineston. That's correct. After I was raped, the 
sexual harassment in my department of 45 men and two women just 
intensified, to the point where me and this other woman, we 
were, like--we didn't know where to turn, so one day after work 
I sought out the JAG office, and I politely waited my turn 
for--to talk to him, and I told him that the sexual harassment 
and the things that we had to go through--like, we had 
supervisors pulling down their pants and urinating in front of 
us, I had pornography put in my truck all the time, and just 
different things like that, that we had to deal with on a daily 
basis. And he politely told me that they were there to support 
the military, and that the only thing he could do was fly in a 
civilian attorney out of Baghdad.
    Senator Bill Nelson. All right. Going on, you say, ``Having 
nowhere else to turn, I sought help with KBR management, and, 
as noted, I was either ignored or disciplined in retaliation, 
and nothing was done to bring the perpetrators of the sexual 
assault to American justice.''
    Mrs. Kineston. That's correct.
    Senator Bill Nelson. Is there anything more that you want 
to tell us about this issue that we're trying to address?
    Mrs. Kineston. Well, I just--you know, my husband and I are 
good people. We're--we go to church every Sunday, and we just 
wanted to go over there to better our lives and the lives of 
our children. And KBR ruined that for us. And they put up with 
this--the behavior of those men. And I strongly believe that 
they put up with it because, not only did--I was raped, but I 
was also sexually molested 2 months before I left KBR. And so, 
they just put up with that behavior, and there was nothing 
ever, ever done about that. They say that pornography on a 
military base is a firing offense, and they didn't even do 
that. They didn't even bring--they didn't even question the 
man, when I told them about the--being molested. So, it was 
like KBR ignored it. And then there was just nowhere else for 
us to turn to.
    Senator Bill Nelson. This is several months after the rape, 
and you are in a truck with other contractor employees--men----
    Mrs. Kineston. Correct.
    Senator Bill Nelson [continuing]. And you were being 
transported from one place to another.
    Mrs. Kineston. Correct.
    Senator Bill Nelson. Tell the committee what happened.
    Mrs. Kineston. I was--before we reported to work, I went 
to--over to the gym to work out, and on the way over to the 
gym, I was walking, and two of my coworkers that I worked 
alongside every day with pulled up next to me and said, ``Where 
are you going?'' And I told them, and they said, ``Oh, we're 
going there, too. Do you want a ride?'' And I said, ``Yeah, 
I'll take a ride.'' So, I got into the truck with them, and 
they were laughing and carrying on, and I kind of sensed that 
they had been drinking. And when--so, I just sat there, and the 
man next to me decided that it was going to be real funny for 
him to put his hand in my pants. And the minute he did that, I 
pushed him away and opened up the door and jumped out of the 
truck, and the truck was still moving while I jumped out of it.
    Senator Bill Nelson. And were the others engaged in this 
activity?
    Mrs. Kineston. No; just that one guy.
    Senator Bill Nelson. Were they all noticing what he was 
doing?
    Mrs. Kineston. The other guy that was in the truck was the 
driver of the truck, and he was just laughing, and he just--he 
just thought that was really funny.
    Senator Bill Nelson. And both of them were Americans.
    Mrs. Kineston. Yes, sir.
    Senator Bill Nelson. They were employees of KBR, as well?
    Mrs. Kineston. Yes, sir.
    Senator Bill Nelson. Had they been ones that had made 
sexual references to you, verbally, before?
    Mrs. Kineston. No; they--nothing before that point.
    Senator Bill Nelson. Did you report that incident?
    Mrs. Kineston. Yes, I did, sir. I immediately reported it.
    Senator Bill Nelson. To?
    Mrs. Kineston. James Kalinowski, who was a--he was, like, 
the head of the camp management.
    Senator Bill Nelson. And--a KBR employee.
    Mrs. Kineston. Yes.
    Senator Bill Nelson. All right. And then, about a couple of 
months later, you left.
    Mrs. Kineston. Correct.
    Senator Bill Nelson. Tell us about that.
    Mrs. Kineston. Well, I continued to do my job; but every 
day, they would find something wrong with me, with my job. They 
were really giving me a hard time every day. And one night I 
had come home late from work, and I parked my truck close to my 
sleeping quarters, because I was afraid to walk in the dark. 
And--after the rape, my husband would walk out to the my truck 
every day and walk me back to my door, because I was so afraid. 
And that particular night, my husband was gone, so I parked my 
truck kind of close to my building, and they wrote me up for 
that. And then, they--all the men in my department got together 
and had a meeting with HR representative, Aiden Stockton, and 
they all got together and told them that we were getting 
special treatment because we were females, and that they were 
being discriminated against. And the only special treatment I 
ever remember getting was that they let us use a pickup truck 
at the end of the day to go home from work so we wouldn't have 
to ride with men that were going to put their hands in our 
pants. And that was the only special treatment we ever got. And 
4 weeks after that meeting, I was terminated. I was fired, for 
ridiculous reasons.
    Senator Bill Nelson. They said you were speeding.
    Mrs. Kineston. I was speeding, and I passed a truck on the 
base.
    Senator Bill Nelson. If you could just hold on, Ms. 
Kineston, let's talk to Ms. Leamon.
    Ms. Leamon, up to this point, has been known with a 
pseudonym, ``Lisa Smith.'' She has not gone public, until this 
morning. Her real name is Dawn Leamon.
    Ms. Leamon, tell me something about your family.

 STATEMENT OF DAWN LEAMON, FORMER KBR CONTRACTOR, CAMP HARPER, 
                          BASRAH, IRAQ

    [The prepared statement of Ms. Leamon follows:]

Prepared Statement of Dawn Leamon, Former KBR Contractor, Camp Harper, 
                              Basra, Iraq

    My name is Dawn Leamon, and I am the mother of four children and 
stepmother of two additional children. I am employed as a civilian 
contractor in Iraq. Approximately 64 days ago, two men working at my 
camp near Basra sexually assaulted and raped me in the civilian living 
area. One man is a member of the U.S. military, and the other I know as 
an employee of KBR.
    Because of the effect it will have on my family's life and my life, 
it is extremely difficult to come forward and identify myself to you 
and the American public. I hope that by telling my story here today, I 
can keep what happened to me from happening to anyone else.
    My two sons are in the military. Both have served in active duty 
overseas; one in Iraq and one in Afghanistan. Because I also wished to 
be of service to my country, I applied to KBR as a paramedic.
    In July, 2007, I went to KBR in Houston, where I signed a 17-page 
employment agreement with a company called SEII, an offshore company 
which everyone commonly referred to as KBR. I then flew to Iraq to work 
as a paramedic assigned to Camp Cedar. On January 26, 2008, I was 
transferred to Camp Harper, near Basra. There, I was the only medical 
professional for 60 KBR employees.
    On or about the night of February 3, 2008, they raped me. I will 
not go into the details here, but it was brutal and horrific. I awoke 
to find an unknown military personnel in my living area. I made the KBR 
camp manager and the military liaison to the Army aware that there was 
a member of the Armed Forces passed out in my living area the morning 
after the assault. The camp manager identified the soldier by name. 
They told me not to tell anyone about what had happened the night 
before.
    Being the only medical personnel on the base, I treated myself for 
potential STD's. There were no procedures for sexual assault in the 
medical protocol guidelines.
    It was over a month later, after I ``officially'' reported the 
rape, that CID informed me that the camp manager had actually been 
there that night. It appears that other people know more about what 
happened to me that night than I do. I believe that I was drugged by my 
assailants.
    Camp Harper is small and totally isolated. Travel to and from the 
camp is difficult and takes several days. There are frequent rocket 
attacks. There are only three telephones, and I believe all 
communications are monitored. There is no ability to have private 
communication with the outside world. I believed I wouldn't be safe if 
I filed an official report while I was there. Anyway, there was no one 
there from HR or Employee Assistance to notify, or from whom to seek 
help. I felt completely alone, and I was scared.
    I was also the only medical person there for 60 civilians, and 
their safety was my duty. In fact, several days after the rape, I 
treated the KBR rapist for an occupational injury. He gave me some 
photographs, one of which I bring you today. You can understand why I 
feared for my safety when I tell you who these men are. The man on the 
right is the head of security for KBR in southern Iraq; the man in the 
middle is the only KBR security for Camp Harper, and the other is a KBR 
employee. This photograph reinforced their message: Don't report 
anything.
    Around February 21, a KBR Employee Relations investigator showed up 
at Camp Harper on an unrelated matter. He questioned me about general 
issues in the camp, and I did not feel safe reporting to him as long as 
I was assigned to Camp Harper. I did send him a written disclosure 
about the rape after I left Camp Harper and was assured I would not be 
returning.
    I finally got to Camp Cedar on February 27, 2008. That is when I 
was able to contact the KBR employee assistance person I knew and tell 
her about the assault. She discouraged me from reporting it, saying, 
``You know what will happen if you do.'' She did give me an 800 number 
for KBR-sponsored counseling. I called that number; they offered six 
half-hour telephone counseling sessions, as long as I met their strict 
availability requirements. They also directed me to a Web site where I 
was prompted to put in my Zip Code for the rape crisis center nearest 
me.
    By this time, a friend in Iraq told me that I should talk to an 
attorney. I contacted Daniel Ross's office in Texas to seek assistance 
and legal advice. I then retained him as my attorney.
    I was contacted by a woman from KBR's Global Investigations Group. 
She asked to meet with me at Camp Adder on Tallil Air Base. There, she 
questioned me about the sexual assault and I was examined by a military 
doctor. The doctor stated she believed I was drugged the night I was 
raped. I was also taken to the combat stress unit where I met with an 
Air Force Captain. He was encouraging and told me I had done the right 
thing by reporting it. I spoke with him and with a psychiatrist. I was 
given medication to help me sleep and I spent the night at Adder.
    The next morning I was given an eight-page statement that had been 
prepared for me to sign. Even though I did not have the opportunity to 
read the entire statement, I read enough of it to see that there were 
parts I did not agree with. When I brought them to KBR's attention, 
they said that as soon as I signed the statement, I could leave Adder 
and go back to Cedar. So I signed it. Although KBR promised me they 
would give me a copy of my statement, they refused.
    I was finally able to speak with one of my sons. I wanted to know 
if he would be ashamed of me if I reported the rape to the military. He 
told me that it was not acceptable for someone who wore his same 
uniform to behave that way, and he would expect me to report it.
    Upon my return to Cedar, I again contacted my attorney, Daniel 
Ross, and told him what had happened. His office sent me an e-mail with 
a copy of the letter they intended to send to KBR on my behalf. About 
10 minutes later, KBR security confiscated the computer I was using. 
Within minutes, I received a phone call from KBR security telling me I 
had to be on the next hard car to Adder.
    When I got to Adder, I was taken to CID, where I was interrogated 
from 2 p.m. until midnight by two special agents. I advised them that I 
had an attorney, and they convinced me to sign a waiver of my rights. 
The agents were very intimidating and their questions and demeanor 
suggested strongly that they thought I was lying about the rape.
    I had no way of communicating with anyone while I was at Adder. My 
movements were restricted and I was accompanied everywhere. I later 
learned that was because the men who had attacked me were also at Adder 
and their movements at the camp were unrestricted. I was told that my 
safety was in jeopardy if I was alone.
    The next day I was questioned by CID again and given a 14-page 
statement and another waiver to sign. I signed them. Once again I was 
sent back to Cedar.
    The only thing that gave me hope was knowing that I was scheduled 
to go home for R&R on March 23. I was supposed to leave Camp Cedar on 
March 22, but instead I was sent back to Adder again to give swabs for 
DNA.
    Once again, while I was at Adder, I was accompanied everywhere by 
personnel from KBR and CID security. My attackers were still at Adder 
and still had unrestricted movement. The day I left, I was taken to the 
airport by security, given an assigned seat on the plane, met in 
Baghdad by more security personnel, and taken to Dubai. Finally I 
arrived home.
    This experience has shattered my faith and trust in things that 
were part of my belief system. In the dangerous and volatile 
environment we inhabited as employees in Iraq, I would never have 
dreamed that I faced an attack from the people I was there to work with 
and care for. I would have thought that if KBR knew this had happened 
to their employees before, they would have warned me. I would never 
have expected that when I told the people who were supposed to be there 
to help me that I had been brutally violated, they would tell me to 
stay quiet about it or try to make it seem as if I had brought it on 
myself or lied about it.
    Despite the fact that KBR knew that I had been raped, and knew that 
I was in continued physical danger in Iraq, they insisted that I return 
to Iraq at the end of my R&R. Since then, I have been able to seek 
treatment here and I have received a medical leave of absence.
    In response to the committee's specific questions:

   KBR's first response upon learning that I has been sexually 
        assaulted was to try to keep it quiet. KBR then performed an 
        investigation that I feel was intended to blame me for being 
        raped.
   KBR did little or nothing to restore my sense of safety 
        after I reported being raped.
   I am unaware of any measures to date being taken against the 
        KBR employee or the member of the U.S. military who attacked 
        me.
   The initial response of the U.S. military representatives 
        was that the medical personnel were kind and supportive; 
        however, CID was intimidating, suspicious, and accusatory. CID 
        interrogated me and essentially accused me of lying.
   My attorney, Daniel Ross, has had contact with the U.S. 
        Department of Justice on my behalf. I intend to cooperate fully 
        and in any way necessary to assist the Justice Department in 
        the prosecution of this matter.
   I would prefer to defer to my attorney, Daniel Ross, to 
        comment on the obstacles I have encountered in pursuing justice 
        in this matter. I don't really understand all of the legalities 
        of this situation, but I understand that there is an 
        arbitration clause in the employment agreement I signed with 
        Service Employees International that KBR claims prevents me 
        from seeking civil justice in a court of law.

    Ms. Leamon. I have--I'm married and have four children of 
my own, and two older stepdaughters. Two of my children are 
both in the armed services, they've both done tours, one in 
Iraq, one in Afghanistan. We have a fairly military-minded 
family, and very patriotic, and a very overwhelming sense of 
duty to our community and to our country. That----
    Senator Bill Nelson. And----
    Ms. Leamon [continuing]. Prompted me to attempt to work in 
Iraq and provide service, both to the military and to the 
contractors that are there.
    Senator Bill Nelson. And back home your home is where?
    Ms. Leamon. I live in a small town in northern Illinois. 
It's called Lena, IL, just west of Rockford, IL.
    Senator Bill Nelson. And your training is as a paramedic?
    Ms. Leamon. Yes. I've been a Illinois State certified 
paramedic for 19 years.
    Senator Bill Nelson. So, you signed up as a paramedic to go 
and help out the war effort in Iraq, and you signed up with a 
contractor. And who was the contractor?
    Ms. Leamon. I signed up through KBR, and on the--our 
contract is actually a SEII, but I assume that that's also KBR.
    Senator Bill Nelson. And tell us about your deployment. You 
were first deployed in Iraq where as a paramedic?
    Ms. Leamon. I was first woman paramedic in Camp Cedar, 
which is in southern Iraq--and it's basically the largest 
truckstop and the fueling point in southern Iraq--and provided 
medical care to the contractors and the subcontractors, and 
then would provide support to the military, if ever needed.
    Senator Bill Nelson. And you were there some 8 months or so 
at Camp Cedar.
    Ms. Leamon. I was there from July until January 26.
    Senator Bill Nelson. From July of 2007 until January 26 
this year.
    Ms. Leamon. Of this year, correct.
    Senator Bill Nelson. OK. And then, they sent you to a 
Forward Operating Base further south, near Basrah.
    Ms. Leamon. Correct.
    Senator Bill Nelson. Tell us about that.
    Ms. Leamon. That is in a--what's known as a Red Zone. It's 
highly active base, as far as incoming fires. It's a very small 
FOB. There's approximately 60 KBR employees on that FOB. And it 
is part of a British--overall British base.
    Senator Bill Nelson. And describe for the committee the 
quarters of this particular base, the structure of how the 
residential and office units were lined up, and describe the 
protections from the incoming rounds of mortars and so forth.
    Ms. Leamon. Our living quarters are similar--if you can 
imagine a mobile-home park, but they're all connected. There's 
a row of 12--similar to mini--a motel, with a interior hallway 
and doors that would connect into the hallway, and then you 
would walk to your living areas. There was four rows of these, 
which would comprise of eight total trailers. And the office 
spaces would be in the front part of the--and then there would 
be living quarters toward the back area. This was connected to 
two other camps, one being a military camp. There was T-walls, 
which are large protection barriers that help protect from the 
indirect fire that we received, that surrounded this area; 
however, everyone could walk through all the living--all the 
living areas; there was no restrictions at that point. We did 
have security that came down in February to help with force 
protection and to help get the bunkers more stable and to 
provide a little bit more protection for the incoming fire that 
we were getting.
    Senator Bill Nelson. And in this particular unit, about how 
many people are located there?
    Ms. Leamon. In our living area, there is approximately 60 
people.
    Senator Bill Nelson. That's Camp Cedar.
    Ms. Leamon. At Camp Harper.
    Senator Bill Nelson. I mean Camp Harper.
    Ms. Leamon. Right.
    Senator Bill Nelson. And it was your responsibility to be 
the medical person on the scene. If anyone received any 
incoming rockets and were hurt, you were the person that would 
first administer medical treatment to them.
    Ms. Leamon. Correct.
    Senator Bill Nelson. Now, tell us about how Iraqi troops 
had access to this area.
    Ms. Leamon. They were allowed--because of other 
circumstances--and I really would want to be careful, as far as 
jeopardizing anyone's safety or security for that area--but 
they were allowed to walk through that area for their 
particular job.
    Senator Bill Nelson. OK. So, it's the end of January----
    Ms. Leamon. Correct.
    Senator Bill Nelson [continuing]. Of this year.
    Ms. Leamon. Correct.
    Senator Bill Nelson. And tell us what happened on this 
particular night.
    Ms. Leamon. The night that I was assaulted, we had had 
quite a bit of indirect fire throughout that week. I had only 
been there 7 to 10 days. I was asked by a KBR employee if I 
wanted to go have a drink. We did go to another KBR employee's 
living area. There were five of us and myself. We had a drink 
of Absolut vodka and orange juice mixed in a Gatorade bottle. 
From that point, I had been drinking, we had talked about it, 
people were going to get up at 4 o'clock to watch the live 
broadcast of the Super Bowl. So, we had just been talking. I 
had went to my room for a moment. I had set my drink down when 
I went to my room. I came back and finished my drink. At that 
point, I started to feel strange, but I wasn't unconscious. I 
just didn't feel right. I wanted to step outside and have a 
cigarette. I asked one of my friends if he'd go outside with 
me. Said it was too cold. And I stayed in that room.
    At some point thereafter, we left and went to another 
employee's room.
    Senator Bill Nelson. Now, how many people were in the room 
with you when you're having the vodka and orange juice?
    Ms. Leamon. There was four to five people in there, and the 
camp manager had stopped in and said goodnight to us and went 
on to his room.
    Senator Bill Nelson. And this is--the room that you're in 
is the living quarters of one of the employees?
    Ms. Leamon. Of KBR employees, yes.
    Senator Bill Nelson. Were we going to name these people, or 
are we not going to name the people? Is there any problem with 
naming--putting the specific names on these people?
    Ms. Leamon. I don't know, because of the investigation.
    Mr. Ross. I don't have any problem with it.
    Senator Bill Nelson. OK. All right. Whose room had you gone 
to with regard to the drinking of the vodka and orange juice?
    Ms. Leamon. Jamie Smallman's.
    Senator Bill Nelson. And what was his position?
    Ms. Leamon. He was a power-gen operator for--power 
generator mechanics.
    Senator Bill Nelson. I see. He was a KBR employee.
    Ms. Leamon. Correct.
    Senator Bill Nelson. OK. All right. Pick up the story from 
there. You said you remember then going to another person's 
room, but you were feeling unusual.
    Ms. Leamon. I felt very unusual, and I don't--I can't 
honestly say that I remember walking to that room, but I 
remember being in that room. In that room--and, Dan, do you 
want me to name----
    Mr. Ross. You can--just tell the truth, Dawn.
    Ms. Leamon. OK. In that room, William Risener was with me, 
as well as a Special Forces soldier that I did not know at that 
time. That's----
    Senator Bill Nelson. And was that the room of William 
Risener?
    Ms. Leamon. Correct.
    Senator Bill Nelson. And so, you have a memory of going 
down to his room----
    Ms. Leamon. Correct.
    Senator Bill Nelson [continuing]. Describe how you're 
feeling.
    Ms. Leamon. It's more of being in a fog. And from 
everything that I've gone over in my head, over and over and 
over again, there are blurps that I remember, and there's 
things that I remember absolutely nothing of.
    Senator Bill Nelson. OK. Well, tell us what happened next 
that you remember.
    Ms. Leamon. The soldier was kissing on my neck, and they--I 
was sitting at the end of this bed, and I remember trying to 
push him away, but I wasn't being forceful with anyone. I--and 
I remember being laid flat on my back at the end of this bed 
and holding onto Andy's hand. And----
    Senator Bill Nelson. And Andy is William Risener?
    Ms. Leamon. Correct.
    Senator Bill Nelson. OK. And then what happened?
    Ms. Leamon. I remember just thinking in my head, ``He's 
going to make this stop. He's going to make this stop.'' The 
soldier then anally penetrated me and I screamed, and, at that 
time, Andy put his penis into my mouth.
    Senator Bill Nelson. William Risener.
    Ms. Leamon. Right. William Risener. When he let go of my 
hand, I felt the whole thing was--there was nothing, at that 
point, that I was going to do. He was my lifeline. He was my 
coworker.
    Senator Bill Nelson. Had he made any kind of advances to 
you prior to this?
    Ms. Leamon. No.
    Senator Bill Nelson. OK. Then what happened? So, your 
scream was basically stopped when he did the act that you just 
described.
    Ms. Leamon. Correct.
    Senator Bill Nelson. All right. Then what happened?
    Ms. Leamon. I vaguely remember them switching places. I 
remember feeling like somebody was holding my legs up. That's 
the last memory I have in that room.
    I woke up the following morning in my room, in a chair, 
naked. The soldier that was in William's room earlier was in my 
bed. There was feces on him. There was blood on him. There was 
feces on my floor. There was feces in my mouth. I----
    Senator Bill Nelson. And you were in the chair, and this 
soldier was in the bed.
    Ms. Leamon. Correct.
    Senator Bill Nelson. What did you do then, when you looked 
at the soldier?
    Ms. Leamon. I had been awakened by indirect--by outgoing 
fire. We were sending out rockets, and that's what woke me.
    Senator Bill Nelson. Was the soldier naked?
    Ms. Leamon. Yes.
    Senator Bill Nelson. Where were his clothes?
    Ms. Leamon. His clothes were between the chair and the bed, 
as well as his weapon was next to his clothes. At that time, I 
went and showered. I started trying to clean up the floor. I 
was using Soft Scrub on the floor, and it started to fade the 
carpet. I had tried to wake up the soldier. He didn't wake up. 
I started washing things, and noticed, at that time, that he 
had a red mark on his penis. I don't know, because I did not 
look that closely, if it was a scar, a birthmark, or if he does 
have some type of a sexually transmitted disease.
    I had to report to a meeting, which began at 7 o'clock that 
morning. I went to that meeting. Coming back from the meeting, 
the camp manager pulled me into his office. He told me, at that 
time, that what happened last night will never happen again.
    Senator Bill Nelson. And what's the camp manager's name?
    Ms. Leamon. Larry Martin.
    Senator Bill Nelson. He's the camp manager for KBR of that 
camp----
    Ms. Leamon. Harper.
    Senator Bill Nelson [continuing]. Harper.
    Ms. Leamon. Correct. At that time, I thought he was 
referring to me having a drink. It's strictly against KBR's 
policy that you drink in theater. I offered, at that time, to 
pack my room up and go home. He said, ``No; that's OK, sweetie, 
we'll take care of it. It'll be all right.'' And I'm, like, 
completely confused by his behavior, at this point. I said, 
``Larry, he's still in my room.'' And that is when the soldier 
was identified to me as a first name of Jason. Larry said, 
``Jason's in your room? He just broke my trust.''
    At that point, I went back to my room to try to get him out 
of my room. Larry went to get the liaison for the military. I 
came out of my room, and the liaison from the military talked 
to me, and he said, ``Dawn, don't worry about it, I'll take 
care of it. Just--we're not going to speak of this ever again. 
I'll take care of it.''
    Senator Bill Nelson. This is the camp manager.
    Ms. Leamon. That was the military liaison that said that, 
that he was going to take care of it and I was not to speak of 
it.
    Senator Bill Nelson. Is he a KBR employee?
    Ms. Leamon. No.
    Senator Bill Nelson. No. This is----
    Ms. Leamon. Military.
    Senator Bill Nelson [continuing]. Military.
    Ms. Leamon. Correct
    Senator Bill Nelson. Do you know who he is?
    Ms. Leamon. I know his first name, of ``DJ.'' I don't know 
any----
    Senator Bill Nelson. So, he was part of the military 
contingent that was there.
    Ms. Leamon. Was there.
    Senator Bill Nelson. Yes.
    Ms. Leamon. Correct.
    After that timeframe and that morning, I never had 
conversation with Jason again. I did speak with DJ on a daily 
basis, not regarding that incident, but regarding operations of 
daily camp living. I did speak with William Risener on a daily 
basis. I did treat him for an occupational injury.
    Where I was, to leave that camp you had several factors--
first of all, you could only get a flight 3 days a week. On 
those 3 days, if incoming or security issues were concerned, 
they would not fly. With it being springtime in Iraq, and our 
winter was incredibly dry this year, the dust storms were 
horrendous, which also would prevent flying.
    The T sites normally are slated for 11 paramedics. 
Currently, we have five, to cover all of the T-site camps in 
southern Iraq. There was difficulty getting a replacement for 
me. There was also difficulty for me to get out of Iraq.
    The reason I want you to be aware of this is to understand, 
to report this, first of all, I didn't have Military Police 
there. We had British. And even for me to take a KBR employee 
to the British hospital, you have to receive the permission to 
get care for them.
    It is very easy in that part of Iraq for someone to 
disappear. It's very easy for accidents to happen. My 
communications were, I believe, monitored for--not as an 
intentional act against me, but for safety for the camp. I 
believe all the communications were monitored.
    Senator Bill Nelson. So, other than talking to the camp 
manager and the military liaison----
    Ms. Leamon. It was never brought up again----
    Senator Bill Nelson [continuing]. It was never----
    Ms. Leamon [continuing]. Until I left.
    Senator Bill Nelson [continuing]. Brought up again.
    Ms. Leamon. Until I left.
    Senator Bill Nelson. And you had nobody that you could 
report this to, and you feared--since there were no Military 
Police there--and you just described that it was the British--
--
    Ms. Leamon. Correct.
    Senator Bill Nelson [continuing]. And so, you were fearful 
of reporting this to someone that was there, because--tell us 
again what you just said, about people disappearing.
    Ms. Leamon. I could disappear, in a heartbeat. I could 
fall, I could have a head injury, and it could be explained, it 
could be logically explained with the type of activities we 
have there.
    Senator Bill Nelson. And, for example, tell the committee 
how it would be logical to explain the disappearance of some--
of an American from a Forward Operating Base.
    Ms. Leamon. Because of the type of base that it is, because 
of the purpose of that base, because of the area that we're in, 
and because of the amount of indirect fire and the unrest in 
Basrah, in general, just the--that specific environment and the 
lack of organization, as far as structural organizations 
compared to other bases similar to Camp Adder or Anaconda or--
you know, where you have all the departments available to your 
services.
    Senator Bill Nelson. So, you tried to get out of Camp 
Harper, and it took you how many weeks to be flown out of Camp 
Harper?
    Ms. Leamon. I was able to get out of Camp Harper by 
complaining about wearing my vest. We were in bulletproof vests 
and helmets from 5 o'clock in the morning until midnight. My 
vest weighed between 35 and 45 pounds. Trying to operate in 
that was very difficult on me.
    Senator Bill Nelson. And you were the only paramedic----
    Ms. Leamon. I was the only paramedic there.
    Senator Bill Nelson [continuing]. In Camp Harper.
    Ms. Leamon. Correct.
    Senator Bill Nelson. And so, they had to get a replacement 
for you.
    Ms. Leamon. They had to have someone come down for me. I 
had to spend 2 days with that person, at least. And then I was 
allowed to leave.
    Senator Bill Nelson. OK. And how long did it take you to 
get out of Camp Harper?
    Ms. Leamon. My replacement came in, the end of February. My 
travel process out of Camp Harper was--we did fly to Kuwait. 
From Kuwait, we fly up to Baghdad. You spend the night in 
Baghdad. And then you fly to Camp Adder. And then I traveled by 
a hard car, which is an armored vehicle, over to Camp Cedar.
    Senator Bill Nelson. OK. And tell us what happened at Camp 
Cedar.
    Ms. Leamon. At Camp----
    Senator Bill Nelson. This is 3 weeks later, after the 
assault?
    Ms. Leamon. Correct.
    Senator Bill Nelson. OK.
    Ms. Leamon. When I got to Camp Cedar, I--my manager was 
there. She's normally stationed at Camp Adder. I told her that 
I was assaulted and that I just needed to talk to Employee 
Assistance, that I just needed to deal with this. In speaking 
with Employee Assistance, there was a concern, as far as 
reporting it at all, because of the history of harassment and 
retaliation on KBR's part. I went back and talked to my manager 
a little more, without giving her specific details, and then 
wrote a revised statement to Employee Relations explaining my 
assault.
    Employee Relations had me sign documents stating that I 
would not speak of this to anyone. If I spoke of it, I would be 
terminated.
    Senator Bill Nelson. This is a KBR employee----
    Ms. Leamon. KBR Employee Relations. He--over a couple of 
day's time, he did have e-mail conversations with me, 
requesting additional information, requesting a different--
different information regarding the camp, the situations at 
Camp Harper. I did provide those statements for him. When I 
asked him what was going to happen, he couldn't give me an 
answer at that time.
    Later, I was contacted by Global Investigations, which is 
also a part of KBR. I was asked to come over to Camp Adder and 
speak with them. I explained the situation. Because the T sites 
were so short on paramedics at Camp Cedar, I was only the only 
paramedic there.
    Senator Bill Nelson. So, while all this is going on, you're 
still performing your duties----
    Ms. Leamon. Absolutely.
    Senator Bill Nelson [continuing]. As a paramedic.
    Ms. Leamon. Absolutely.
    Senator Bill Nelson. OK. Did they transport you by vehicle 
over to Camp Adder?
    Ms. Leamon. Yes; they did.
    Senator Bill Nelson. OK. And what happened over there?
    Ms. Leamon. At Camp Adder, Global Investigations started by 
asking several questions regarding the statement I wrote to 
Employee Relations, and asking for specific details. And we 
spent quite a bit of time that day talking, and then she--I had 
asked to be able to have a physical exam to rule out any 
sexually transmitted diseases, even though I had treated 
myself, while in Harper, for potentially sexually transmitted 
diseases.
    Senator Bill Nelson. By taking what?
    Ms. Leamon. Doxycycline, which is an antibiotic.
    Senator Bill Nelson. I see. So, you did not see a doctor 
until you got over to Camp Adder.
    Ms. Leamon. Correct.
    Senator Bill Nelson. All right. Tell us about that.
    Ms. Leamon. Global Investigations said that it would be 
much better if I was seen by the military doctor; that way, it 
would not cost me anything. I had asked to be able to do it on 
my way, on--I had a scheduled vacation coming up, if I could 
have an extra day to have it done at the International Clinic. 
She advised it would be much better for me to be seen at the 
military--and that way, we would get the results and have 
everything right there, and it also would be no cost to me.
    I agreed to do this. They took me over for coffee. They 
took me over to the Combat Support Hospital. And she went in 
and talked to the officer in charge of the Combat Support 
Hospital. I stayed outside. Approximately 30 to 40 minutes 
later, the investigator, as well as a physician, came out and 
spoke with me. The physician brought me into the clinic. We 
spent a great deal of time talking. She was very kind. She 
asked me to describe what happened. And she spent a lot of time 
telling me that, from what I could describe to her, that it 
sounded like I had been drugged and that I was raped.
    Senator Bill Nelson. This is the doctor?
    Ms. Leamon. This is the doctor.
    Senator Bill Nelson. And it is a military doctor at Camp 
Adder.
    Ms. Leamon. Correct.
    Senator Bill Nelson. And this is now more than 3 weeks 
after the assault.
    Ms. Leamon. Yes; this is closer to almost 5 weeks.
    She's--she was very, very supportive of my situation. She 
encouraged me, at that time, to report it, as well, further. 
She asked if I would see the combat stress personnel. And she 
did her exam and collected her samples.
    Since the assault, I sleep about an hour to an hour and a 
half at a time, if that long. The physician wanted me to see 
combat stress in order to get some medication to go to sleep, 
at least to get one night--good night of sleep. I did follow 
those steps. I did speak with combat stress. I did see combat 
stress psychiatrist, who prescribed four tablets, for me to 
sleep that night.
    What I found out after that was slightly disturbing, 
because when I went to fill my prescription, the military has 
my Social Security number incorrect, so I don't know if I'll 
ever see my test results, because of a numerical error. They 
said not to worry about it at that time.
    Senator Bill Nelson. Do you still have trouble sleeping?
    Ms. Leamon. Yes. I sleep--I sleep--usually every other day 
I'm able to sleep. I sleep for about an hour to an hour and a 
half. I wake up. I work really hard at convincing myself to at 
least stay in bed, and that seems to be quite a challenge these 
days.
    Senator Bill Nelson. In your written testimony, which, of 
course, all of your written testimony will be a part of the 
record of this committee, you say, ``When I got to Adder, I was 
taken to CID''--Criminal Investigative Division--``where I was 
interrogated from 2 p.m. until midnight by two special 
agents.''
    Ms. Leamon. Correct. That was not that day. This was Global 
Investigations, which is KBR's investigators, that arranged the 
stay of interrogation. I was allowed to go to sleep that night. 
And the following morning, I was to meet with Global 
Investigations again at 8 a.m. At 6:15, Camp Adder was hit with 
indirect fire, killing three American soldiers, injuring a 
subcontractor. I went over to the KBR clinic once we were 
cleared to leave the bunkers. I opened the clinic to provide 
medical care to the KBR contractors.
    Once that was taken care of, I did go back and speak with 
Global Investigations. They provided a statement for me to 
sign. They--I had a question about some inaccuracies in it, and 
their response was, ``The sooner you sign this, the sooner you 
can get back to your base, where you feel safe.''
    I asked her if I could have a copy of the statement. I had 
a photograph that she wanted, which I had back at Camp Cedar. 
She said, ``As soon as I give her the photograph, she would 
bring it--she would send me a copy of my statement.''
    I returned to Camp Cedar that day. I did contact Mr. Ross 
and explain to him further what had gone on. I believe, at that 
time--and I'd refer to Dan to--he sent a letter to KBR.
    Senator Bill Nelson. And who is Mr. Ross?
    Ms. Leamon. Dan Ross is my attorney. I contacted him, at 
the recommendation of a friend in Iraq, just to try to ensure 
some protection for me.
    That day, after I--Dan had sent a proof of this letter to 
me, I opened it on my computer. There was a correction that 
needed to be made on a date. I made the correction, sent it 
back. Within 20 minutes, KBR security came and confiscated my 
computer.
    Senator Bill Nelson. Now, this is at Camp Cedar.
    Ms. Leamon. This is at Camp Cedar.
    Within minutes of my computer being confiscated, I received 
a phone call from the head of security who is stationed at Camp 
Adder, stating I needed to be on the next hard car, that he was 
sending my manager over to relieve me.
    I went to Camp Adder. The head of security met me at our 
service center, put my belongings in his vehicle, and delivered 
me to CID.
    Senator Bill Nelson. And that's where you pick up, here, 
``When I got to Adder, I was taken to the Criminal 
Investigative Division''----
    Ms. Leamon. Correct.
    Senator Bill Nelson. Now, this is military.
    Ms. Leamon. This is the military.
    Senator Bill Nelson [continuing]. ``Where I was 
interrogated from 2 p.m. until midnight by two special agents. 
I advised them that I had an attorney, and they convinced me to 
sign a waiver of my rights. The agents were very intimidating, 
and their questions and demeanor suggested strongly that they 
thought I was lying about the rape''----
    Ms. Leamon. Correct.
    Senator Bill Nelson.--end of quote.
    Ms. Leamon. Correct.
    Senator Bill Nelson. Pick up, there.
    Ms. Leamon. We--at midnight, they took me to a room that 
was in the military housing area. It was an empty room between 
the two special agents. They told me that this was for my 
protection, as the suspects from Camp Harper were on the camp 
and had free motion at that time, which means they could move 
around the base as they wanted to.
    I was advised--I am a smoker--I was advised, if I wanted a 
cigarette, to go the bunker and stand by the bunker; that way, 
I would not be seen.
    They told me they could come back at 10 a.m. to pick me up. 
And they did. Actually, he was there a little earlier. We went 
back to their office. We reviewed a 14-page statement. He asked 
some more questions and asked me to handwrite a narrative and 
once I completed that, I could go back to Camp Cedar again.
    I completed that and was picked up by security and taken to 
a hard car and taken to Camp Cedar, continuing to do my job, 
now without a computer, continuing to be accountable to be at 
meetings and briefings and do new-hire orientation, even though 
I was not aware of the meetings, briefings, or the 
orientations. I would receive a phone call, ``You were supposed 
to be here 5 minutes ago. Why aren't you here?''
    I had requested, from KBR, multiple times, as to what was 
going to happen next, ``What's going on?''--never to receive a 
response.
    Senator Bill Nelson. So, you were back at Cedar, and then 
they take you back to Camp Adder to give more swabs for DNA?
    Ms. Leamon. Correct.
    Senator Bill Nelson. And all along, your attackers are 
freely moving about at----
    Ms. Leamon. Camp Adder.
    Senator Bill Nelson [continuing]. Camp Adder.
    Ms. Leamon. Correct.
    Senator Bill Nelson. But, everyplace you going on Camp 
Adder, you are accompanied by KBR security and military 
personnel from the Criminal Investigative Division.
    Ms. Leamon. That is correct.
    Senator Bill Nelson. But, you saw no attempt to be 
curtailing the movements of your assailants.
    Ms. Leamon. Correct.
    Senator Bill Nelson. And then they decide to send you home?
    Ms. Leamon. I had a scheduled vacation, and I was allowed 
to leave, as scheduled.
    Senator Bill Nelson. And so, now you are still an employee 
of KBR, and you're supposed to go back to Iraq.
    Ms. Leamon. I was supposed to report back to Iraq on 
Sunday. If I did not report, as scheduled, I had to sign a 
waiver saying I would not be paid my vacation time, nor would I 
be reimbursed my ticket home.
    I contacted Human Resources during the week, last week, 
requesting an extension to my R&R. They advised that I needed a 
medical leave of absence and would need a physician's document 
signed.
    I did go to an emergency room to speak with a physician, 
because we have not been able to get appointments set up, as of 
yet, with somebody who has experience with PTSD and sexual 
assault.
    The emergency room physician said, ``Well, you have PTSD.'' 
And--but refused to sign the KBR document saying, you know, 
that I could not go back to Iraq.
    I notified Human Resources of this, and asked them--there's 
a procedure you must go through to get an extension; I asked 
them if, at this time, I could request the extension. I was 
allowed to do that. The extension was granted for 10 days. And 
later that afternoon, we were notified that I was put on 
medical leave of absence.
    Senator Bill Nelson. Are you planning to go back to Iraq?
    Ms. Leamon. My heart would love to go back and support our 
military. My heart would love to go back and take care of the 
people at my camp, at Camp Cedar. I can't go back with KBR. I 
can't do that.
    Senator Bill Nelson. And, thus far, you don't have any 
indication that your assailants are being prosecuted.
    Ms. Leamon. I do not know what the status is of any of the 
investigations.
    Senator Bill Nelson. Now, you received some photographs. 
When did you receive them?
    Ms. Leamon. Prior to leaving Camp Harper, my camera had 
been broken. We had some indirect fire that caused significant 
damage close to a living area. I had asked William Risener, who 
had been taking pictures, if he would transfer those to my 
flash drive so that I could take them home. He transferred 
those photographs, along with a photograph that was fairly 
undesirable of me, as well as several photographs of him, as 
well as a photograph of the camp--or the head of security--the 
head of the camp security and another KBR employee.
    Senator Bill Nelson. The undesirable photograph of you 
having been taken, on the night of the----
    Ms. Leamon. Assault.
    Senator Bill Nelson [continuing]. Assault.
    Ms. Leamon. Correct.
    Senator Bill Nelson. And there was another photograph of 
another male that was in bed with two Bosnian women?
    Ms. Leamon. Those--that's CID's photographs that they 
showed me, asking me to identify people that----
    Senator Bill Nelson. I see, unrelated to the photographs 
you got.
    Ms. Leamon. Correct.
    Senator Bill Nelson. The Criminal Investigative Unit, had a 
separate photograph of----
    Ms. Leamon. They had----
    Senator Bill Nelson. Was it one of the assailants?
    Ms. Leamon. They had a picture of the camp--the military 
camp liaison in bed with the Bosnian women.
    Senator Bill Nelson. And the Bosnian women are people that 
are employees----
    Ms. Leamon. Of KBR.
    Senator Bill Nelson [continuing]. Preparing the food.
    Ms. Leamon. Correct.
    Senator Bill Nelson. Tell me--one of these photographs--we 
have a blown-up copy. Now, this is the photograph that you 
received that was on your--what do you call it?
    Ms. Leamon. Thumb drive.
    Senator Bill Nelson [continuing]. Thumb drive.
    Ms. Leamon. MB stick.
    Senator Bill Nelson. And this happened to show up on this 
that you were given----
    Ms. Leamon. Correct.
    Senator Bill Nelson [continuing]. By whom?
    Ms. Leamon. By William Risener, my----
    Senator Bill Nelson. William Risener, your assailant. And 
can you describe that photograph for us, who they are and what 
they're doing?
    Ms. Leamon. The person--I don't know which you want, from 
right to left--the person with the cap on, saying that's the 
right, is a KBR employee and just a plumber.
    Senator Bill Nelson. And this is at Camp----
    Ms. Leamon. Harper.
    Senator Bill Nelson [continuing]. Harper, where the assault 
took place. So, they gave you this thumb drive of photographs 
before you left to come home, or was this when you left----
    Ms. Leamon. When I left----
    Senator Bill Nelson [continuing]. Camp Harper----
    Ms. Leamon. Camp Harper----
    Senator Bill Nelson [continuing]. To go to Camp Cedar.
    Ms. Leamon. Yes.
    Senator Bill Nelson. OK. And the fellow in the middle?
    Ms. Leamon. He's security for Camp Harper.
    Senator Bill Nelson. Is he the chief of security?
    Ms. Leamon. We had one security person there, at the time.
    Senator Bill Nelson. Yes, OK.
    Ms. Leamon. And the one at the end is----
    Senator Bill Nelson. With his hands cupped over his ears.
    Ms. Leamon [continuing]. Is security for the T sites, the 
head of security for the T sites at Camp Adder.
    Senator Bill Nelson. And are any one of those your 
assailant?
    Ms. Leamon. No, sir.
    Senator Bill Nelson. No; they're not there. So, these are 
all employees at Camp Harper----
    Ms. Leamon. The two--the one in the middle and the one on 
the right with the hands over his mouth are at Camp Harper.
    Senator Bill Nelson. And the one at Camp Cedar with his 
hands over----
    Ms. Leamon. Camp Adder.
    Senator Bill Nelson [continuing]. At Camp Adder, with his 
hands over his ears, is----
    Ms. Leamon. Is the head of security.
    Senator Bill Nelson. The head of security?
    Ms. Leamon. Correct.
    Senator Bill Nelson. And so, we've got a security guy in 
the middle, a security guy with his hands over his ears, and we 
have a KBR contractor with his hands over his mouth.
    Ms. Leamon. Correct.
    Senator Bill Nelson. Now, what does that picture suggest to 
you?
    Ms. Leamon. That picture says not to say anything. That 
picture has----
    Senator Bill Nelson. See no evil, hear no evil, speak no 
evil.
    Ms. Leamon. And while I was at Camp Harper, I had talked to 
the person in the middle, and he said--I don't know that he had 
any knowledge of what happened to me, but he did have knowledge 
of other things, and he told me, ``If you don't say anything, 
everything'll be fine. Just don't say anything.''
    Senator Bill Nelson. And he actually said that to you----
    Ms. Leamon. Yeah.
    Senator Bill Nelson [continuing]. Before you left Camp 
Harper.
    Ms. Leamon. Yeah.
    Senator Bill Nelson. What did you hear about other sexual 
assault cases that had received media attention?
    Ms. Leamon. I had not really been aware of any other sexual 
assault cases that had any media attention until after I had 
returned to Camp Cedar and had talked to Dan Ross a couple of 
times. At that time, he advised me that there were similar 
cases. And at that time, he also----
    [Pause.]
    Ms. Leamon. And I looked up--and I looked up information on 
Jamie Lee Jones, who also was assaulted and raped and drugged 
in Iraq, working also for KBR.
    I had the opportunity to meet Jamie Lee and her attorney 
last week, when I returned home from Iraq. We haven't had much 
of an opportunity to speak to each other, other than to say 
hello and give each other a hug.
    And then, I met Mary Beth yesterday, which----
    [Pause.]
    Senator Bill Nelson. All right. I just want you to know, 
you two ladies, this is very courageous of you to step forward.
    And, Mrs. Leamon, you have only done one interview, by 
radio, and you did it under the pseudonym of ``Lisa Smith,'' 
and it's very courageous for you to step forward.
    And I'm hoping that out of the drama of you all telling 
what has happened to you, that we can start to focus--that 
we've got a problem, that justice is breaking down here.
    All right, Mr. Fidell, what do you think about all this?
    Mr. Fidell is a senior partner in the firm of Feldesman 
Tucker Leifer and Fidell, here in Washington.

   STATEMENT OF EUGENE R. FIDELL, ESQ., PRESIDENT, NATIONAL 
  INSTITUTE OF MILITARY JUSTICE AND SENIOR PARTNER, FELDESMAN 
           TUCKER LEIFER FIDELL, LLP, WASHINGTON, DC

    Mr. Fidell. Senator, this is the first opportunity I've had 
to become aware of the facts that these ladies have testified 
about. As a husband and father of a daughter, I'm very offended 
by these tales. As a taxpayer, I'm very concerned about the 
environment that obviously exists in Iraq right now with 
respect to the enormous number of government contractor 
personnel who are there. That raises issues of a different 
nature, I think, from the ones that the subcommittee is 
concerned with this morning, but it would be absurd not to say 
that it makes me wonder whether we should have the vast numbers 
of private individuals there, civilian employees there, without 
a workable system of law.
    It's very interesting. In the Hamdi case, a couple of years 
ago, Justice Sandra Day O'Connor said that, famously, the war 
on terror is not a blank check for the executive branch. And, 
similarly, the existence of a wartime environment in Iraq is 
not a blank check for private employers.
    And what strikes me is that, effectively, there's a 
complete breakdown of law that ought to be protecting people, 
such as these ladies. I'm very, very concerned about it.
    One of the things that a system of law entails and requires 
is that it instill a sense of public confidence. There has to 
be public confidence in the administration of justice. That 
means public confidence in the administration of the criminal 
law, it means public confidence also in the administration of 
civil remedies. These ladies have invoked, I gather, a variety 
of civil remedies. I'm not here to address that. But, it is a 
challenge, because people and corporations, and employers have 
legal relationships that the law has to provide a framework 
for, even in environments as odd and unusual as Iraq. And if 
there isn't such a framework, then we might as well all be back 
in the kind of ``road-warrior'' environment to--I'm showing my 
age here, but there was an old movie with that title. It 
depicted conditions that were basically chaotic. And that's 
what I'm taking away from this.
    So, the question then is, What should the United States 
Senate and House of Representatives do, faced with evidence 
like this? Obviously, neither house should be calling balls and 
strikes, in terms of pronouncing any corporation guilty or any 
individuals guilty. This isn't a court of law, and that would 
be a misuse of the legislative function. Instead, what I 
understand the subcommittee to be doing is gathering facts to 
try to identify deficiencies in the legal arrangements.
    What I wonder about is why the criminal justice piece of 
this part of our legal framework appears to have malfunctioned 
so gravely. As I listened to the testimony, it seemed to me 
that the conduct described would have fallen within the 
criminal sweep of the Uniform Code of Military Justice, on the 
premise that the perpetrators were serving with or accompanying 
an Armed Force in the field in time of a declared war under the 
current legislation or a contingency operation.
    I didn't get the dates on the first lady's----
    Senator Bill Nelson. 2004.
    Mr. Fidell. 2004. That was before the 2006 amendment.
    Senator Bill Nelson. That's correct.
    Mr. Fidell. There----
    Senator Bill Nelson. But, the latter, which was just 2 
months ago, clearly is within the statute of which the Uniform 
Code of Military Justice could apply.
    Mr. Fidell. That's correct. And if I can play lawyer for a 
second, it has occurred to me that the 2006 amendment may 
actually not have been necessary if the Averette case, which I 
refer to in my prepared statement, was--would no longer command 
the majority on the U.S. Court of Appeals for the Armed Forces.
    Senator Bill Nelson. Was that the Iraqi Canadian citizen?
    Mr. Fidell. No. This is the case, going back to the Vietnam 
war, where the then-Court of Military Appeals held that a 
declared war was necessary to exercise jurisdiction over a 
person serving with or accompanying an Armed Force in the 
field. It has occurred to me that a creative military 
prosecutor or commanding officer might have tried to bring 
criminal charges under the UCMJ with respect to that offense, 
even before Senator Graham's amendment became law. But, that's 
retrospective. I think the interest here should be prospective.
    Senator Bill Nelson. But----
    Mr. Fidell. I am concerned about----
    Senator Bill Nelson [continuing]. Clearly, Mrs. Kineston's 
case in 2004, would have been covered by the law that was 
passed in the year 2000----
    Mr. Fidell. Yes; the Military----
    Senator Bill Nelson [continuing]. Which was----
    Mr. Fidell [continuing]. Extraterritorial----
    Senator Bill Nelson [continuing]. The MEJA----
    Mr. Fidell [continuing]. Jurisdiction Act, yes.
    Senator Bill Nelson [continuing]. Case. And yet--we'll get 
testimony over here, but it appears that not one of these cases 
has been indicted or convicted that involve sexual assault----
    Mr. Fidell. I don't get it.
    Senator Bill Nelson [continuing]. Of a civilian woman.
    Mr. Fidell. I don't----
    Senator Bill Nelson. And yet, the law----
    Mr. Fidell [continuing]. Get it.
    Senator Bill Nelson [continuing]. Has been there since 
2000.
    Mr. Fidell. Right.
    Senator Bill Nelson. So, what do you think about these MEJA 
prosecutions?
    Mr. Fidell. I've been baffled why there hasn't been more 
activity under that statute. That doesn't mean that every case 
should be brought to a grand jury, it doesn't mean that every 
case should be brought to court, but with this amount of sheer 
industrial activity and human interaction, an enormous 
workforce in a clearly wild environment--I think we can all 
agree on that--with, certainly, some measure of criminality in 
an otherwise, by the way, probably very law-abiding workforce. 
I think we can all stipulate that, overall, it's a very law-
abiding workforce, just as the military is a very law-abiding 
workforce. But, there's some level of criminality that occurs 
when the numbers of people involved go up.
    There is a real problem in transparency. Transparency is 
one of the components of public confidence in the 
administration of justice. And accountability. Somebody who has 
been in a position to make the decisions as to who should get 
prosecuted for what during the campaign in Iraq has some 
explaining to do. And it may be that there is a perfectly good 
explanation, Mr. Chairman, for the lack of activity. That may 
well be.
    Senator Bill Nelson. Well, we're going to----
    Mr. Fidell. However, I think it is incumbent on the 
authorities to explain what has been done with particular 
respect to these cases and more broadly.
    The one other thing that I wanted to mention, and then I'd 
be happy to respond to any questions. I was disturbed at what 
seemed to be a gap in the victim and witness arrangements. The 
military has quite a robust victim and witness assistance 
program. I've represented people in trouble with the military, 
and I've been impressed by the tenacity of the victim and 
witness program. There are many skilled, wonderful people who 
are dedicated to helping women and men who find themselves 
victims of assaults or other misconduct.
    If there is a gap in the reach of the victim and witness 
program such that individuals such as these ladies or other 
people who are part of the civilian workforce in Iraq are 
assaulted by individuals who are subject to Federal criminal 
law, one way or the other, whether it's the Special Maritime 
and Territorial Jurisdiction, whether it's MEJA, or whether 
it's the UCMJ, there has to be a coterminous program of victim 
and witness protection. You can't have a sort of no-man's land 
where--like the old insurance ad, you know, ``You're in good 
hands''--you're in no hands at all if you're a victim. That is 
something that, if I were advising the committee, I would 
suggest some attention be paid to.
    [The prepared statement of Mr. Fidell follows:]

 Prepared Statement of Eugene R. Fidell, President, National Institute 
 of Military Justice and Partner, Feldesman Tucker Leifer Fidell LLP, 
                             Washington, DC

    Mr. Chairman and members of the subcommittee, it is an honor to 
appear before you as you consider the legal regime for prosecuting 
offenses by United States civilians in Iraq and Afghanistan. My initial 
remarks will be quite brief, but I will, of course, be pleased to 
respond to your questions as you examine the issues.
    This hearing could not be timelier. Only last week, news broke of a 
case in which, for the first time in decades, a civilian was charged 
with an offense under the Uniform Code of Military Justice.\1\ Although 
the case involves a charge of stabbing rather than sexual assault,\2\ 
the putative victim in that case was not a U.S. citizen, and indeed, 
the accused himself is a dual Iraqi-Canadian citizen, it nonetheless 
demonstrates the need to ensure a workable system of criminal justice 
wherever our forces are called upon to serve.
---------------------------------------------------------------------------
    \1\ Michael R. Gordon, ``U.S. Charges Contractor at Iraq Post in 
Stabbing,'' N.Y. Times, Apr. 5, 2008, at A3, col. 6.
    \2\ See Charge Sheet, United States v. Alaa Mohammad Ali (Mar. 27, 
2008).
---------------------------------------------------------------------------
    Our current arrangements for prosecuting crime in Iraq and 
Afghanistan by individuals other than uniformed military personnel are 
complex, incomplete, and uncertain. Although our workforce in those 
countries is, I am sure, overwhelmingly law-abiding, we cannot afford 
to allow anyone to have the sense that ``anything goes.'' That means we 
have to have a meaningful, pervasive criminal law regime, especially 
because the Iraqi legal system continues not to inspire confidence. 
This includes not only having laws on the books that will sweep in 
those kinds of criminality that we can reasonably anticipate, but also 
having an executive branch that is committed to the proposition that 
those laws will be enforced. This does not mean every offense that 
comes to light will inexorably lead to a trial, but it does mean that 
every offense that comes to light will be given careful consideration 
just as we expect our United States attorneys to do for Federal 
offenses committed within the country.
    Congress has long attempted to subject a variety of categories of 
persons to military justice. Some of its efforts have run into 
constitutional obstacles. For example, in the 1950s, the Supreme Court 
held unconstitutional provisions of the then-new Uniform Code of 
Military Justice (``UCMJ'') that were used to prosecute former GIs \3\ 
as well as military dependents \4\ and other categories of civilians. 
The basic theory was that courts-martial denied these civilians a 
variety of constitutional rights that all of us enjoy in Federal 
criminal cases, such as indictment by grand jury, trial by a jury of 
peers, jury size and unanimity, and trial before an article III judge 
with life tenure.
---------------------------------------------------------------------------
    \3\ United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955).
    \4\ Reid v. Covert, 354 U.S. 1 (1957).
---------------------------------------------------------------------------
    One provision in the UCMJ purported to extend court-martial 
jurisdiction to persons ``serving with or accompanying an armed force 
in the field in time of war.'' \5\ This seemed suitable for the 
prosecution of civilian contractors in Vietnam, but the Court of 
Military Appeals, as it was then called, held in United States v. 
Averette,\6\ that that provision could apply only in time of a declared 
war, and of course our Nation's last declaration of war occurred in 
World War II. Averette was never reviewed by the Supreme Court because, 
at the time, there was no right to seek a writ of certiorari from the 
Supreme Court. Congress finally rectified that particular omission 25 
years ago. Whether Averette was correctly decided is water over the 
dam, since Congress, of course, has subsequently made other pertinent 
changes in the statute. I would say, however, that it is not at all 
clear to me that the present court of appeals for the Armed Forces 
would come out the same way as their predecessors did in Averette if 
the same question were ever presented. To my knowledge, no military 
commander or prosecutor ever sought to test whether the case was still 
good law.
---------------------------------------------------------------------------
    \5\ Art. 2(a)(10), UCMJ, 10 U.S.C. Sec. 802(a)(10).
    \6\ 19 U.S.C.M.A. 363, 41 C.M.R. 363 (1970).
---------------------------------------------------------------------------
    The various gaps created by the Supreme Court's decisions and 
Averette persisted for decades. Finally, in 2000, the second circuit, 
in the course of setting aside a conviction in a particularly egregious 
case for lack of special territorial and maritime jurisdiction, 
directed its clerk to send a copy of its ruling to committees of the 
House and Senate.\7\ This spurred Congress to action, resulting in 
passage of the Military Extraterritorial Jurisdiction Act of 2000,\8\ 
which created Federal district court jurisdiction over a variety of 
offenses that would otherwise elude Federal criminal prosecution.
---------------------------------------------------------------------------
    \7\ United States v. Gatlin, 216 F.3d 207 (2d Cir. 2000).
    \8\ 18 U.S.C. Sec. 3261 et seq.
---------------------------------------------------------------------------
    Inexplicably, MEJA has been virtually a dead letter. It took a very 
long time for the Department of Defense to generate the implementing 
regulations, and even then, as far as I have been able to determine, 
the Justice Department has seemed to take little interest in bringing 
to trial cases that fall within MEJA.
    In 2006, Congress finally got around to fixing the part of the UCMJ 
that was at issue in Averette. The specific ``fix'' was to amend 
article 2(a)(10) to cover not only those who serve with or accompany an 
armed force in the field in time of declared war, but also those who do 
so during a statutorily-define ``contingency operation,'' a defined 
term \9\ that covers the operations in Iraq and Afghanistan. Here too, 
however, the Defense Department was slow in issuing implementing 
instructions. Secretary Gates finally issued a memorandum setting forth 
the general framework last month, but a good deal of the necessary 
fine-print guidance remains to be issued. For example, which kinds of 
UCMJ offenses will be prosecuted when committed by a civilian? \10\ 
What does ``in the field'' mean, or ``serving with or accompanying''? 
\11\ Are embedded journalists covered? CIA personnel? Non-U.S. 
citizens? Iraqi nationals? Is the 2006 amendment to article 2(a)(10) 
constitutional? Early news reports suggest that the defense in the Ali 
case will raise a constitutional objection.
---------------------------------------------------------------------------
    \9\ 10 U.S.C. Sec. 101(a)(13).
    \10\ See Jonathan Finer, ``Holstering the Hired Guns: New 
Accountability Measures for Private Security Contractors,'' 33 Yale J. 
Int'l L. 259, 262 (2008) (urging stricter definition of who is covered 
and ``a clause indicating that only crimes that have a parallel in 
civilian law should be prosecuted'').
    \11\ See Kara M. Sacilotto, ``Jumping the (Un)Constitutional Gun?: 
Constitutional Questions in the Application of the UCMJ to 
Contractors,'' 37 J. Pub. Contract L. 179, 192-94 (2008).
---------------------------------------------------------------------------
    Your letter of invitation indicated that the subcommittee is 
immediately concerned with sexual assault allegations against U.S. 
citizens serving as government contractors in Iraq and Afghanistan. I 
understand from your letter, Mr. Chairman, that some of these 
allegations relate to incidents that reportedly occurred as much as 3 
to 5 years ago, and that not one such case has been prosecuted thus 
far.
    Obviously, I take no position as to the merit or lack of merit of 
any particular allegation.
    That said, and passing over the fact that some of these matters may 
well, by now, be barred by the statute of limitations, it seems to me 
that Congress can take the following steps--on top of energetically 
exercising its oversight and appropriations powers \12\--to ensure that 
sexual assaults committed by U.S. Government contractors are 
prosecuted:
---------------------------------------------------------------------------
    \12\ See Kathleen A. Duignan, ``Civilians and Military Law: An 
Unconstitutional Mix, Problems with Applying UCMJ to Contractors and 
its Effects Internationally,'' 6 J. Int'l Peace Operations 21 (2007).
---------------------------------------------------------------------------
    1. The definitional section of MEJA, 18 U.S.C. Sec. 3267, could be 
amended to sweep in any U.S. citizen (or green card holder) who is 
working overseas as an employee or contractor of any Federal agency.
    2. Congress could give extraterritorial effect to more of title 18, 
so that sexual or other offenses committed outside the country by U.S. 
citizens or green card holders could be prosecuted in Federal district 
court.
    3. Congress could expand even further the reach of the Special 
Maritime and Territorial Jurisdiction, even beyond the 2001 
expansion.\13\
---------------------------------------------------------------------------
    \13\ See 18 U.S.C. Sec. 7(9).
---------------------------------------------------------------------------
    4. Congress could create a Director of Overseas Prosecutions in the 
Department of Justice with authority to determine whether offenses by 
U.S. citizens overseas should be prosecuted, and if so, whether that 
prosecution should occur in a Federal district court or, where 
applicable, a court-martial.
    I would be delighted to respond to your questions.

    Senator Bill Nelson. Well, you've put your finger on the 
very reason that we're having this hearing, is that--something 
that's not working. And there are three laws on the books. And 
you just named them: One, with maritime, that has jurisdiction 
over active military situations; the one that was passed in 
2000, which directly gives jurisdiction, called MEJA; and then, 
the 2006 legislation, that is now law, that involves the 
Uniform Code of Military Justice. So, we clearly have the laws 
on the books.
    So, what I want to do now is, I want to get the second 
panel, and I want us to discuss this from the members of the 
Department of State, Department of Defense, and Department of 
Justice.
    Now, you see why I asked you all, as the panel, to go 
second, because I wanted you to hear what is live testimony 
about real people in real-life situations, that something is 
wrong. And there are others. And one of them is a visitor in 
the audience. And we could go on and on.
    So, let's get into that.
    The committee will take a 5-minute recess while we then 
have the next panel come up.
    [Recess.]
    Senator Bill Nelson. Good morning. And we will resume.
    We are privileged to have the Honorable Sigal P. Mandelker, 
Deputy Assistant Attorney General from the Criminal Division of 
the Department of Justice; Mr. Gregory Starr, Acting Assistant 
Secretary, Bureau of Diplomatic Security, and Acting Director 
of the Office of Foreign Missions, Department of State; Mr. 
Robert Reed, Associate Deputy General Counsel for Military 
Justice and Personnel Policy in the Office of the General 
Counsel of the Department of Defense; and Mr. John B. Wiegmann, 
Assistant Legal Advisor for Management, Department of State. 
So, thank you all.
    Needless to say, when you have testimony like we've just 
heard, from some courageous women who dared to step forward, 
it's riveting, but it also exposes a flaw in the system. 
Something's not happening right. And that's what I want to 
explore with you. I want to do this in a respectful way, a 
nonjudgmental way, but, at the end of the day, I want us all to 
come up with some suggestions of what we're going to do so we 
correct a system that is flawed.
    Now, I want you to put up this chart, and I want to show 
you something here. I want to lay the predicate for this. Put 
it right up here.
    All right. Of the disposition of sexual assault cases in 
both Iraq and Afghanistan, there has been, of civilians--now, 
you can see, the military ends up having 684, but you can see, 
of civilians, 26--three were found to be unfounded, but the 
remaining 26--the remaining 23--well, let's see what happened: 
Insufficient evidence, 7; pending, 2; administrative action, 
10. And administrative action includes military discharges, 
reprimands, barred from post, employment terminated, and 
deported, referred to a foreign authority--two--and no action 
taken. Out of the civilian contractors, there's not one that's 
prosecuted. So, we want to get into that. We want to find out 
why.
    So, let me turn to you--by the way, all of your statements 
will be put in the record.
    We have some other Senators that want to come and join us 
on this, and I will, as a courtesy defer to them when they 
come. But, let me start out, Mr. Starr.

  STATEMENT OF GREGORY B. STARR, ACTING ASSISTANT SECRETARY, 
   BUREAU OF DIPLOMATIC SECURITY, AND ACTING DIRECTOR OF THE 
OFFICE OF FOREIGN MISSIONS, DEPARTMENT OF STATE, WASHINGTON, DC

    [The prepared statement of Mr. Starr follows:]

  Prepared Statement of Gregory B. Starr, Acting Assistant Secretary, 
  Bureau of Diplomatic Security, and Acting Director of the Office of 
         Foreign Missions, Department of State, Washington, DC

    Good morning Chairman Nelson and members of the subcommittee. It is 
a pleasure to appear before you today. I would like to thank you and 
the subcommittee members for your continued support and interest in the 
Bureau of Diplomatic Security's (DS) efforts to protect U.S. Government 
personnel and our diplomatic missions abroad.
    DS agents engage in or support and assist U.S. law enforcement 
activities, and also serve as a liaison with foreign government law 
enforcement authorities, at 268 State Department missions worldwide. 
There are nearly 1,500 DS Special Agents who are on assignment to these 
foreign missions in 159 different countries, assigned to 25 field and 
resident offices domestically, or serving on 27 Joint Terrorism Task 
Forces. DS agents serve around the world in embassy and consulate 
Regional Security Offices, managing the security programs that ensure 
the safety and security of U.S. personnel, facilities, and classified 
information.
    The safety and security of all U.S. citizens living and working 
overseas, including those employed by the U.S. Government or its 
contractors around the world, is a top priority for the Department of 
State. DS, in concert with the Bureau of Consular Affairs (CA), is 
committed to assisting U.S. citizens who become victims of crime while 
traveling, working, or residing abroad. DS and CA duty personnel are 
available 24 hours a day, 7 days a week, at embassies, consulates, and 
consular agencies overseas to provide assistance.
    Whether a particular criminal matter overseas becomes the subject 
of an investigation by DS depends on the facts, the nexus of the facts 
to the U.S. mission, whether there is a basis for asserting U.S. 
criminal jurisdiction, the nature of the investigation, the role of 
other investigative entities, and whether the matter is brought to the 
attention of embassy officials. DS often works closely with the 
Department of Justice (DOJ) in those cases where it appears there is a 
basis for assertion of U.S. criminal jurisdiction overseas, including 
some sexual assault cases. In other cases, DOJ, the Department of 
Defense (DOD), or other Federal law enforcement agencies will conduct 
an investigation, and DS may provide support to the extent needed. 
Responsibility for particular investigative matters is decided among 
the relevant agencies on a case-by-case basis. Of course, in many 
cases, where there is no basis for assertion of U.S. criminal 
jurisdiction, any criminal investigation would be conducted by local 
authorities. DS may assist those investigations as well where 
appropriate.
    To date, there have been four allegations of sexual assault in Iraq 
and Afghanistan that have been reported to DS. All four of the reported 
incidents were investigated by DS, although in only two of these 
incidents were any of the persons involved State Department employees 
or contractors or otherwise subject to the authority of the Chief of 
Mission. Of the four allegations investigated by DS, three incidents 
were referred to DOJ. We defer to DOJ for further information on these 
incidents. The fourth incident was addressed administratively.
    In Iraq and Afghanistan, there are unique challenges for DS and for 
consular officers seeking to assist U.S. victims of crime. There are a 
large number of U.S. civilians employed in Iraq and Afghanistan as 
contractors, but security conditions make it more difficult for 
Department officials to respond and provide assistance to crime victims 
to the same extent as they would in other parts of the world. The lack 
of strong local police and judicial systems in Iraq and Afghanistan 
also makes it more difficult for our personnel to help Americans get 
the same type of support as they would in other countries when they are 
victimized by crime. Moreover, regardless of where they occur, sexual 
assault crimes can be difficult to uncover. It is often difficult for 
victims to come forward, particularly when the perpetrator is the 
victim's supervisor, reporting officer, or colleague; such crimes may 
also be reported to other investigative authorities and not to the U.S. 
Embassy.
    The Bureau of Consular Affairs has made efforts to address these 
challenges in Iraq and Afghanistan by reaching out to the companies 
known to the Department that employ U.S. citizens and encouraging them 
to provide a main point of contact with the consular staff to enhance 
communication; asking them to have their employees register with the 
Embassy in order to be able to receive warden messages; and providing 
information on the Department's or the Embassy's Web site. At the 
Bureau of Diplomatic Security, we are also committed to doing whatever 
we can to help Americans victimized by crime in these dangerous places, 
including victims of sexual assault or rape, and will continue to work 
with the Department of Justice on criminal investigations of such 
matters, as appropriate, and subject to jurisdictional constraints.
    Chairman Nelson, I thank you and the other members of the 
subcommittee for being given the opportunity to appear here. I would 
now be happy to answer any questions you or the other members may have.

    Senator Bill Nelson. How many cases involving sexual 
assault of a U.S. contractor in Iraq or Afghanistan has the 
Bureau of Diplomatic Security referred to the Department of 
Justice?
    Mr. Starr. I believe that's four, sir--if you'll give me 
one second. No; we have had four allegations investigated by 
Diplomatic Security; three have been referred to the Department 
of Justice, the fourth incident was address administratively.
    Senator Bill Nelson. And of those four, have any been acted 
upon?
    Mr. Starr. My understanding is that the Department of 
Justice is acting on those three, sir, but I'd have to defer to 
the Department of Justice for questions as to exactly where 
they are in the process.
    Senator Bill Nelson. OK. We'll get to that.
    If a crime, Mr. Starr, between two contractors were to 
occur on a military-controlled facility or base, would the 
Department of State have the authority to investigate this?
    Mr. Starr. It appears the answer to that is, factually, 
yes, sir, because, in fact, that has happened. We did 
investigate at least one case that was taking place on a 
military-controlled base. It probably would be better, had it 
been investigated by the Department of Justice, but the 
particular circumstances were such that my agents responded and 
did investigate.
    Senator Bill Nelson. And when you say ``it probably would 
be better,'' tell me about that.
    Mr. Starr. I believe that the Department of Justice--sorry, 
excuse me, sir--the Department of Defense should have their 
agents present and investigating, but, as it's been spoken 
about, Iraq is a very grueling and tough situation. Not 
everybody is always available or there at the particular time. 
And I will simply state that, you know, the United States 
Department of State agents that are overseas for Diplomatic 
Security Service are available and will pick up, if there is a 
gap that has to be filled, but we are primarily there for 
protection of American citizens working on United States 
diplomatic premises and residences.
    Senator Bill Nelson. You said that there were four referred 
to the Department of Justice for action.
    Mr. Starr. Three, sir. Four--we've investigated four cases. 
Three were referred to the Department of Justice.
    Senator Bill Nelson. OK. And you don't know what action has 
occurred. Has there been a conviction on any one of those 
three?
    Mr. Starr. Not that I am aware of, sir.
    Senator Bill Nelson. Do you know if there has been an 
indictment, a charge, on any one of those three?
    Mr. Starr. I am aware that there have been grand juries 
convened. There has been action on the part of the grand jury. 
But, I would--I'm--would prefer not to go into the particulars 
of any cases that are--that the Department of Justice is 
handling. I think Justice might be better to answer that, sir.
    Senator Bill Nelson. OK. Do you know if, when you referred 
those, that they were referred by your Department--Department 
of State--to Justice for prosecution using the MEJA 
jurisdiction?
    Mr. Starr. Yes, sir, that is how we would refer these for 
prosecution.
    Senator Bill Nelson. OK. But, no--you don't know any more 
than that. OK.
    All right.

  STATEMENT OF ROBERT REED, ASSOCIATE DEPUTY GENERAL COUNSEL, 
 MILITARY JUSTICE AND PERSONNEL POLICY, OFFICE OF THE GENERAL 
         COUNSEL, DEPARTMENT OF DEFENSE, WASHINGTON, DC

    [The prepared statement of Mr. Reed follows:]

Prepared Statement of Robert E. Reed, Associate Deputy General Counsel 
   for Military Justice and Personnel Policy, Office of the General 
             Counsel, Department of Defense, Washington, DC

    Good Morning Chairman Nelson and members of the subcommittee. I am 
pleased to be here today to discuss the legal framework under which the 
Department of Defense supports U.S. criminal investigations and 
prosecutions of serious crimes committed overseas.
    The Department of Defense (DOD) has been instrumental in supporting 
past legislation and Federal district court prosecution of DOD civilian 
employees, DOD contractors, and their dependents who commit felony-
level crimes when serving with or accompanying our Armed Forces outside 
the United States. This effort has been in response to civilian and 
military appellate court decisions that, approximately 50 years ago, 
precluded military criminal prosecutions of civilians under the Uniform 
Code of Military Justice (UCMJ) during peacetime, and created a U.S. 
criminal jurisdiction ``gap'' overseas that prevented these persons 
being held accountable for the crimes they committed. To explain, the 
jurisdictional ``gap'' to which I refer occurs when a civilian serving 
with or accompanying the Armed Forces overseas commits what would be a 
U.S. Federal offense, but that particular offense does not have an 
extraterritorial reach that would enable that person to be subject to 
U.S. Federal criminal jurisdiction, and the host nation for whatever 
reason does not exercise its criminal jurisdiction, and the military's 
UCMJ jurisdiction does not apply. The result is that the alleged 
offender's criminal actions falls into a jurisdictional ``gap'' wherein 
the offender is not held accountable for the offenses committed.
    I first became involved in the effort to ``fill the gap'' in 1996 
when appointed to be a member of the DOD/DOJ Advisory Committee on 
Criminal Law Jurisdiction over Civilians Accompanying the Armed Forces 
in Time of Armed Conflict, as called for by Section 1151 of the 
National Defense Authorization Act of 1996 (Public Law 104-106, 
February 10, 1996). In response to the Advisory Committee's 
recommendation that U.S. Federal district court jurisdiction be 
extended to close this jurisdictional gap, the Departments of Defense 
and Justice worked closely with the Congress on legislation that is now 
commonly referred to as MEJA (the Military Extraterritorial 
Jurisdiction Act of 2000; 18 U.S.C. Sec. 3261 et seq.), which applies 
to felony-level offenses committed by persons employed by or 
accompanying the Armed Forces outside the United States. The 
jurisdiction applies worldwide, not just within Iraq or Afghanistan. At 
that time, it was generally acknowledged that the prosecution of these 
overseas offenses in U.S. Federal district court would be logistically 
difficult and legally challenging. Recognizing this, it was then 
anticipated that annually only approximately a half-dozen of these 
cases would involve MEJA actions. MEJA first required DOD to develop 
regulations implementing MEJA procedures in consultation with the 
Attorney General and Secretary of State, which was then to be followed 
by a 6-month review and comment period afforded to the Judiciary 
Committees of the Senate and House of Representatives. The events of 
September 11, 2001, and the various U.S. responses to that terrorist 
attack, interrupted that development process and postponed the 
interdepartmental effort to establish proposed MEJA implementing 
procedures.
    In the interim, the Congress enacted additional U.S. criminal 
jurisdiction ``gap filling'' measures. U.S. Federal district court 
jurisdiction was further extended in 2001 by the PATRIOT ACT amendment 
to the definition of ``Special Maritime and Territorial Jurisdiction of 
the United States,'' but in doing so excluded those persons who would 
be subject to MEJA jurisdiction. Section 1088 of the Ronald W. Reagan 
National Defense Authorization Act for Fiscal Year 2005 (Public Law 
108-375, October 28, 2004), amended MEJA and extended its jurisdiction 
to cover employees and contractors of other U.S. Government agencies 
and provisional authorities outside the United States, but only to the 
extent such employment related to supporting the mission of the 
Department of Defense overseas. The Defense Department supports 
appropriate legislative efforts to provide greater accountability for 
unlawful acts committed in places like Iraq where we have ongoing 
military operations. Throughout, MEJA jurisdiction does not apply to 
persons who are nationals or ordinarily residents of the host nation in 
which the crime is committed. The DOD regulations implementing the MEJA 
procedures were drafted in consultation with the Departments of Justice 
and State, review by the Judiciary Committees was afforded, and the 
regulations became effective on March 3, 2005, in the form of a 
Department of Defense Instruction and a corresponding rule in the Code 
of Federal Regulations.\1\
---------------------------------------------------------------------------
    \1\ Department of Defense Instruction 5525.11, ``Criminal 
Jurisdiction Over Civilians Employed By or Accompanying the Armed 
Forces Outside the United States, Certain Service Members, and Former 
Service Members,'' March 3, 2005; Part 153 of Title 32, Code of Federal 
Regulations, ``Criminal Jurisdiction Over Civilians Employed by or 
Accompanying the Armed Forces Outside the United States, Certain 
Service Members, and Former Service Members,'' effective March 3, 2005.
---------------------------------------------------------------------------
    Section 552 of the John Warner National Defense Authorization Act 
for Fiscal Year 2007 (Public Law 109-364, October 17, 2006) amended 
military jurisdiction under Article 2, UCMJ (10 U.S.C. Sec. 802) and 
extended UCMJ jurisdiction, during declared war or a contingency 
operation, to persons serving with or accompanying the Armed Forces in 
the field. In January 2007, the General Counsel of the Department of 
Defense referred the amendment to the Joint Service Committee on 
Military Justice for review regarding the amendment's potential impact 
on military justice practice and procedures. The General Counsel 
thereafter submitted for comment and coordination by the Military 
Departments, Combatant Commands, and Department of Justice various 
recommendations for managing this extraordinary jurisdiction over 
civilians. On March 10, 2008, the Secretary of Defense established 
procedures and issued guidance to be applied when addressing UCMJ 
jurisdiction over civilians under article 2, UCMJ.\2\
---------------------------------------------------------------------------
    \2\ Secretary of Defense Memorandum, ``UCMJ Jurisdiction Over DOD 
Civilian Employees, DOD Contractor Personnel, and Other Persons Serving 
With or Accompanying the Armed Forces Overseas During Declared War and 
in Contingency Operations,'' March 10, 2008.
---------------------------------------------------------------------------
    It is these statutory authorities and implementing procedures that 
I am today prepared to discuss with your subcommittee. I understand 
that the Assistant Inspector General for Communications and 
Congressional Liaison for the Department of Defense, in response to 
this subcommittee's request, recently provided a summary of DOD IG 
statistical information regarding the Military Criminal Investigative 
Organizations' collective investigations of sexual assault incidents 
(and resultant dispositions) associated with Operation Iraqi Freedom 
and Operation Enduring Freedom, and has advised that an evaluation has 
begun regarding the DOD response to sexual assault in these combat 
areas. Additional questions or requests for a further explanation of 
these investigative statistics should be addressed to the Office of the 
Inspector General.
    The Department of Defense works closely with the Department of 
Justice whenever a MEJA case, and most recently a potential UCMJ case, 
involves DOD civilians and DOD contractor personnel committing offenses 
overseas on a worldwide basis, including those committed in Iraq and 
Afghanistan. The Department of Defense has established procedures 
requiring that notice of such cases be provided to the Department of 
Justice, that DOD consult with DOJ regarding appropriate jurisdiction 
and, to the extent practicable, provide support to DOJ during ongoing 
investigations and any subsequent prosecutions. The Secretary of 
Defense memorandum of March 10, 2008, along with the Deputy Secretary 
of Defense memorandum of September 25, 2007,\3\ emphasize that 
commanders have UCMJ authority to use law enforcement and investigative 
resources to respond to and, at least preliminarily, address crimes 
that are committed within their geographic areas of responsibility. The 
Military Criminal Investigative Organizations generally provide 
criminal investigative response to reports of ongoing serious offenses 
or reports of past serious offenses, including sexual assaults, in 
areas that are under the purview of the military commander.
---------------------------------------------------------------------------
    \3\ Deputy Secretary of Defense Memorandum, ``Management of DOD 
Contractors and Contractor Personnel Accompanying U.S. Armed Forces in 
Contingency Operations Outside the United States,'' September 25, 2007.
---------------------------------------------------------------------------
    Cases involving potential MEJA jurisdiction or involving civilians 
under article 2, UCMJ, jurisdiction are to be expeditiously reported up 
the chain of command within the combatant command to the General 
Counsel of the Department of Defense who then notifies and refers such 
cases to the Department of Justice for review. As the General Counsel's 
representative for these MEJA and UCMJ cases, I work closely with the 
Domestic Security Section (DSS) of the Criminal Division, DOJ. All of 
the cases that have been brought to my attention (worldwide and 
involving a variety of offenses) have been referred to DOJ/DSS.
    Case notifications and referrals that took weeks or months to 
accomplish during the early years of MEJA procedures are now taking 
only days to accomplish because investigators and judge advocates are 
learning what information is required to make a MEJA jurisdictional 
determination and are becoming familiar with the procedures involved. 
There has been one DOD contractor case involving aggravated assault 
with a weapon that has resulted in court-martial charges pursuant to 
article 2, UCMJ. That case is pending and it would be inappropriate to 
discuss further details of that case at this time.
    The acquired investigative information is evaluated to determine 
the nature of any offenses committed and those persons who may have 
committed the offenses. This investigative information is then 
evaluated according to the nature of the alleged offense, the alleged 
date of the offense, and the precise category of alleged offender to 
determine which, if any, of this patchwork of ``gap-filling'' statutes 
apply. Ultimately, this investigative information and our established 
procedures help determine whether the alleged offender is subject to 
the jurisdiction, and might be held accountable, under host-nation law, 
U.S. Federal jurisdiction, or UCMJ jurisdiction. With increased 
familiarity regarding the applicability of these various 
extraterritorial laws and the intra- and interdepartmental implementing 
procedures, along with the practical experience of handling these 
extraordinary cases, the process continues to improve and 
accountability is enhanced. Toward that end, I have presented numerous 
briefings regarding these laws and procedures to judge advocates, DOD 
civilian personnel organizations, contractor associations and 
organizations, DOD acquisition and Military Criminal Investigative 
Organization conferences and seminars, and the legal and acquisition 
communities of nearly all the Combatant Commands in which these cases 
might occur within their overseas areas of responsibility. DOJ 
representatives have been making similar presentations to military 
judge advocates and criminal investigators.
    The Department of Defense has required notice and training of MEJA 
jurisdiction to persons subject to deployment to overseas locations and 
again upon their arrival at the various overseas locations. DOD 
regulations advise that DOD contractor personnel at those overseas 
locations should be invited to attend the military's briefings and 
training sessions. In addition, Defense Federal Acquisition Regulations 
require contractors to provide specific notice about the applicability 
of MEJA to their contractor employees while overseas and the Department 
of Defense will, along with the basic requirement that contractor 
personnel comply with all applicable laws, require notice and training 
of contractor personnel on the prohibitions and potential consequences 
of committing sexual assaults and sexual harassment. Initiatives are 
being made to ensure that military personnel, civilian employees, and 
contractor employees overseas know how and to whom to report sexual 
assaults that may occur to them or come to their attention at their 
overseas location. Multi-National Force-Iraq (MNF-I) now utilizes 
posters and instructions posted in all high-traffic areas, such as mail 
rooms and post exchanges, to provide the information needed. Delays in 
reporting sexual assaults to appropriate criminal investigators, even 
if only a matter of days or sometimes hours, can adversely affect the 
ability to secure and preserve crime scene evidence, identify possible 
witnesses, and obtain forensic evidence critical to the case.
    The Department of Defense has engaged in a concerted effort to 
combat sexual assaults within our stateside and overseas military 
communities. Beginning in early 2005, over a dozen policy memorandums 
were issued that addressed sexual assault issues and care for victims 
of sexual assault. The Department established a Sexual Assault 
Prevention and Response Office to further these policy issues and, by 
June 2006, issued a DOD Directive and DOD Instruction on the Sexual 
Assault and Prevention and Response Program. The program includes a 
network of Sexual Assault and Response Coordinators and Sexual Assault 
Victim Advocates who assist victims of sexual assault. MNF-I has 
revised its Command Policy Regulation in accord with the Army 
Regulation issued on March 18, 2008, in order to reinforce its emphasis 
on sexual harassment prevention. That chapter revision mandates Sexual 
Assault Prevention and Response representatives and other activities be 
utilized to assist victims of sexual assault.
    Thank you for the opportunity to address these issues today and I 
look forward to answering any questions the committee may have.

    Senator Bill Nelson. Mr. Reed, in your department, 
Department of Defense, how many cases involving the sexual 
assault of a U.S. civilian has DOD investigated?
    Mr. Reed. I think the statistics you have there are from 
the DOD IG as to what was investigated. So, I would defer to 
the IG's statistical report as to what the military criminal 
investigative organization has investigated.
    Senator Bill Nelson. How many such cases has DOD referred 
to the Department of Justice?
    Mr. Reed. There have been eight cases that have been 
forwarded for consideration under the MEJA statute. All eight 
have been referred to the Department of Defense--Department of 
Justice.
    Senator Bill Nelson. And you sat, in a part of the Office 
of the General Counsel that would know about this--of those 
eight who have been referred to Justice for prosecution by the 
Department of Defense, how many convictions have there been?
    Mr. Reed. One.
    Senator Bill Nelson. How many were there indictments or 
charges brought against?
    Mr. Reed. I don't know the precise figure on that. I keep 
track of them under the label of ``pending,'' so that--after I 
refer them to the Department of Justice, I list them as 
``pending'' until I find out what the ultimate disposition is. 
So, I have three of those that are--that I'm tracking as 
``pending.'' I have one case that's a juvenile out of the Far 
East--it's not applicable to Iraq--that there was a conviction 
in, as well. And I have three cases that my information--or the 
information provided to me would indicate that cases were 
declined due to insufficient evidence or other problems related 
to the case in question.
    Senator Bill Nelson. The one case that you said that got a 
conviction, was that in a civilian or a military court?
    Mr. Reed. It was in civilian court.
    Senator Bill Nelson. And do you know how many cases would 
have been prosecuted in a military court?
    Mr. Reed. Civilians?
    Senator Bill Nelson. Yes.
    Mr. Reed. I would state that there have been none, because 
of the Supreme Court and the United States Court of Appeals for 
the Armed Forces decisions that require, prior to 2006, that 
there be a congressionally declared war, and would have a 
slight disagreement with Mr. Fidell's analysis.
    Senator Bill Nelson. All right. That's with regard to the 
law that was passed in 2006.
    Mr. Reed. Correct, sir.
    Senator Bill Nelson. Right. Now, in the cases in which 
assault has occurred on DOD facilities in Iraq or Afghanistan, 
civilian victims have reported that military investigative 
authorities have told them that they could not assist them. Is 
this correct?
    Mr. Reed. I don't know what the investigators told the 
victims. I can say that, depending on when the date of the 
crime was committed and when--and what the category of person 
was that was suspected of committing the crime, since the law 
has evolved and changed since 2000 up to the present, the 
answer could slightly change as to who has ultimate 
prosecutorial responsibility, and associated that--with that is 
investigative responsibility. However, as a general 
proposition, the military criminal investigative organizations 
normally would respond to the report of, or the complaint of, a 
crime that was committed on a military installation, in order 
to at least preliminarily respond to the complaint until such 
time as the details of the complaint and the identity and 
affiliation, if you will, of the alleged offender was 
determined. And that would, in turn, dictate, in large measure, 
the subsequent course of action to take, following the 
investigation.
    Senator Bill Nelson. Well, let me ask you this. You're 
legal counsel to the Department of Defense. Would DOD have the 
authority to go in and take all the cases that were not 
prosecuted by the Justice Department and prosecute them 
yourself under guidance provided by the Secretary of Defense?
    Mr. Reed. If you're talking strictly about civilian, DOD 
civilian contractors or other contractors, the answer would be 
no, unless the offense was committed on or after the effective 
date of the 2006 amendment, which was October 17, 2006. Prior 
to that, the general consensus of opinion was that the Supreme 
Court and the United States Court of Appeals for the Armed 
Forces stated that, absent congressionally declared war, 
civilians would not be prosecuted in military courts in 
peacetime. And the analysis of that, and the interpretation of 
that for the last 50 years, has been, essentially, that 
civilians being prosecuted in courts-martial was problematic, 
at the least.
    Senator Bill Nelson. What is your professional opinion that 
it is the obligation of a military officer, noncommissioned 
officer, or a DOD official to report and then prosecute, if 
possible, or assist, when given evidence from a civilian that a 
crime has been committed?
    Mr. Reed. I would say that that has generally been the 
rule, in my experience, that they are, in fact, investigated; 
they are, in fact, looked at for possible prosecution, based 
upon the weight and quantum of evidence, and a myriad of issues 
that come into play when you're talking about a very sensitive 
situation, such as sexual assault prosecutions involving 
victims who may or may not be traumatized by the events that 
occurred to them and the events that may--they are concerned 
about as a witness in a public courtroom.
    Senator Bill Nelson. You must have been warmed, as a DOD 
counsel, by the dramatic testimony of Mrs. Kineston, that it 
was the Military Police that responded.
    Mr. Reed. I believe that, by and large--and there are 
always exceptions, Senator, but, by and large, Military Police 
and military criminal investigators do, in fact, respond to 
reports and information brought to their attention that a 
crime, especially a serious crime, has been committed within 
the area of responsibility of the commander. Now, granted, 
there are exceptions. There are some people, who, for whatever 
reason, don't do what we would expect them to do. But, by and 
large, over the years and across the spectrum of crimes that 
are committed by persons on or near a military installation, 
the military does, in fact, respond, and thereafter, after 
they've gathered the facts and identified the individuals 
involved, or suspected to be involved, then try to get the 
appropriate authorities, if it's not the military, involved in 
the case.
    Senator Bill Nelson. Likewise, you must have been warmed to 
hear, as Ms. Leamon was shuffled around, that it wasn't until 
she got into the hands of the military, the Criminal 
Investigative Division and, even more specifically, until she 
got to the military doctor, that she started getting some 
attention.
    Mr. Reed. That was her testimony, and, taking it as it is, 
she appeared to be pleased with the care that she received from 
the hospital physician that treated her, and, generally, the 
responsiveness of the CID, once they were notified of the 
situation. I--so, I guess the answer is, it would appear that 
they responded appropriately under the circumstances.
    Senator Bill Nelson. And yet, in both cases, it's gotten 
lost in the system, certainly with regard to Ms. Kineston, 
because the assault was back in 2004. And with regard to Ms. 
Leamon, although it was 2 months ago, she has no evidence, thus 
far, that there's any prosecution.
    Let me ask you this. Why----
    Mr. Reed. Well, Senator, there--the fact that she is 
unaware of what the--actions are being taken regarding 
prosecution does not mean that action is not being taken. And 
the fact that the--and investigations have not been conducted 
and/or are ongoing. So----
    Senator Bill Nelson. And I hope that's the case with Mrs. 
Leamon, but certainly with regard to Ms. Kineston, nothing 
happened.
    Mr. Reed. In 2004, the MEJA implementing regulations by the 
Department of Defense were not in effect. They didn't take 
effect until March 3, 2005. And the UCMJ jurisdiction of 2006 
was not applicable.
    Senator Bill Nelson. You're telling me that a law that was 
passed in 2000 was never implemented until March of 2005?
    Mr. Reed. That's correct. MEJA was passed in--November 22, 
2000. In 2001, we established a working group, because the 
statute required us to create regulations in conjunction with 
the Department of State and the Department of Justice, and had 
a built-in oversight responsibility by the Judiciary Committees 
of both the House and the Senate, giving them a 6-month period 
of time in which to review the regulations that were developed. 
The Department, in fact, established, in early 2001, a very 
robust working group with interagency/multiagency 
representatives on that.
    Unfortunately, on September 11, 2001, certain things 
happened to the Department of Defense that involved all the 
other Departments, both Justice and State, as well, who were 
part of that team, and all of the parties who were focused on 
coming up with the implementing regulations at that time were 
pulled back for 9/11 and post-9/11 reactive responsibilities.
    In 2002, I reinstituted development of the MEJA regulations 
and wrote them myself, and then, thereafter, we then 
coordinated with the Department of Justice and Department of 
State. There were several backs-and-forth between those 
Departments to come up with regulations on which we could get 
consulted. We then transmitted them to the Judiciary Committees 
of both the Senate and the House, gave them 6 months in which 
to review and comment, and thereafter, after that, to make sure 
that there were no changes that were required through that 
process. Then we had to proceed with the DOD normal process for 
implementing instructions and regulations within the Department 
and develop a corresponding Code of Federal Regulations to go 
along with that, to be filed in the Federal Register.
    All of that process took place, and ultimately they were 
published in the Federal Register, they were published in the 
Department of Defense Regulations with an effective date of 
March 3, 2005.
    Senator Bill Nelson. Do you think----
    Mr. Reed. And I have a more detailed chronology, if you 
need that, in my office. But, that, in a nutshell, is a summary 
of events that interrupted and postponed and created a 
difficult situation for the Department to come up with 
regulations, from a tridepartmental and congressional oversight 
perspective.
    Senator Bill Nelson. Do you think justice was served as a 
result of all that delay?
    Mr. Reed. I wish the process by which we could have come up 
with our regulations weren't required by that process, and I 
wish, also, that the events of 9/11 had not occurred.
    Senator Bill Nelson. Are the eight cases that you referred 
to of sexual assault of civilian contractors?
    Mr. Reed. Yes; they are. No; excuse me, they're--one is a 
dependent juvenile. That was the one from the Far East. The 
rest--the other seven are contractors. Some----
    Senator Bill Nelson. Seven are.
    Mr. Reed. Some are third-country nationals, and other are 
U.S. nationals.
    Senator Bill Nelson. Are they just MEJA nonsexual assaults, 
or are we talking about sexual assaults?
    Mr. Reed. This is where the main offense listed is sexual 
assault. That doesn't mean it's the only offense that 
somebody----
    Senator Bill Nelson. OK.
    Mr. Reed [continuing]. Committed. But, to--as you know, 
when somebody may have committed three or four different 
offenses, you choose the major offense by which to categorize 
the case. These--that's the categorization that I gave them.
    Senator Bill Nelson. I am very pleased that my colleague 
Senator Feingold, who has a yearning to understand all of this, 
as well, has joined us. As courtesy, I want to pass it to you. 
And you've got somewhere you've got to go. So, please--and then 
I'll just jump back in after you finish.

            STATEMENT OF HON. RUSSELL D. FEINGOLD, 
                  U.S. SENATOR FROM WISCONSIN

    Senator Feingold. Well, we always say thank you to the 
Chair for holding a hearing, as a matter of courtesy, but, in 
this case, it's particularly sincere and appropriate, Senator 
Nelson, for having the courage to hold this important hearing.
    And I want to thank all the witnesses for attending. In 
particular, I'd like to thank Ms. Kineston and Ms. Leamon for 
appearing today. I applaud them for their courage and for 
everything they're doing to make sure that what happened to 
them doesn't happen to anyone else.
    We have 180,000 contractors in Iraq alone. They are immune 
from Iraqi law, and U.S. officials have either not investigated 
or failed to prosecute those who have apparently committed 
crimes.
    And the lack of prosecutions is not due to legal loopholes. 
In most cases, especially for abuses that occur off U.S. bases, 
crimes are likely never investigated. When abuses are 
investigated, like some of the abuse of interrogation 
techniques used by contractors on detainees, Department of 
Justice claims they don't have the evidence to prosecute them 
or that they lack the jurisdiction to do so. With at least four 
different statutes creating extraterritorial jurisdiction over 
U.S. contractors, I find this hard to believe. The time has 
come to end this culture of impunity that we have created.
    The testimony that came forward this morning from the 
courageous witnesses, Ms. Kineston and Ms. Leamon, was 
obviously absolutely shocking. It is unthinkable that the 
perpetrators of such horrible acts should go unpunished. It is 
just as disturbing, in my view, that the military and the 
civilian personnel who let this happen have not been held 
accountable.
    Ms. Mandelker, is DOJ currently investigating these cases? 
And, if not, will you now immediately commence a criminal 
investigation, based on the sworn testimony we've heard here 
today?

STATEMENT OF HON. SIGAL P. MANDELKER, DEPUTY ASSISTANT ATTORNEY 
GENERAL, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, 
                               DC

    [The prepared statement of Ms. Mandelker follows:]

  Prepared Statement of Sigal P. Mandelker, Deputy Assistant Attorney 
   General, Criminal Division, Department of Justice, Washington, DC

    Chairman Nelson, Ranking Member Vitter, and distinguished members 
of the committee, thank you for inviting the Department of Justice to 
testify at this hearing. Sexual assault cases often involve the most 
vulnerable victims and must be treated with the utmost seriousness. 
Whether this conduct occurs within the United States or overseas and in 
a dangerous military zone, these offenders must be brought to justice.
    At the Department of Justice, we take very seriously allegations 
that U.S. citizens employed as U.S. Government personnel and 
contractors in direct service to our Nation may have committed sexual 
assault. As the Deputy Assistant Attorney General in the Criminal 
Division who supervises one of the key participants in that mission--
the Domestic Security Section (DSS)--I am pleased to address the 
Department of Justice's ongoing efforts to hold these offenders 
accountable.
    I will focus my remarks today on three major areas: The scope of 
the Military Extraterritorial Jurisdiction Act (MEJA), the principal 
statute under which we prosecute these cases; the Department's role in 
MEJA cases; and interagency coordination on MEJA cases, including the 
steps that the Department is taking to build upon and improve 
cooperation on these cases.

             I. MILITARY EXTRATERRITORIAL JURISDICTION ACT

    The Military Extraterritorial Jurisdiction Act, Title 18 U.S.C. 
Sec. 3261, et seq., is the principal Federal statute used to prosecute 
sexual assault crimes committed by certain U.S. Government personnel 
and contractors in Iraq, Afghanistan, and elsewhere. MEJA was enacted 
on November 22, 2000, and was designed to extend Federal criminal 
jurisdiction to a variety of Department of Defense employees and 
dependents overseas who were not subject to the court-martial process 
under the Uniform Code of Military Justice (UCMJ).
    As originally enacted, MEJA permitted Federal courts to exercise 
criminal jurisdiction over conduct that was engaged in outside of the 
United States that would have been a felony offense if the conduct had 
been engaged in within the special maritime and territorial 
jurisdiction of the United States, provided that the offender was 
within one of three classes of individuals associated with the 
Department of Defense, namely--
          (1) Civilian employees, contractors, and contract personnel 
        employed by the Department of Defense overseas;
          (2) Members of the Armed Forces overseas; and
          (3) Dependents of members of the Armed Forces or of civilian 
        employees, contractors, and contract personnel employed by the 
        Department of Defense residing overseas.
    In 2004, Congress amended MEJA to cover civilian employees, 
contractors, and contract employees of other Federal agencies, but only 
to the extent that their employment ``relates to supporting the mission 
of the Department of Defense overseas.'' In any particular case, the 
exact scope of this expansion depends upon the facts and circumstances 
of an individual's employment and the individual's relationship to the 
mission of the Department of Defense.
    MEJA contains a number of important restrictions. First, MEJA does 
not cover crimes committed by a person who is a national of the foreign 
country where the offense occurred or who ordinarily resides in the 
foreign country where the offense occurred. Second, no prosecution may 
be commenced against a member of the Armed Forces unless at the time of 
prosecution the member is no longer subject to the UCMJ or the member 
is charged with committing an offense with one or more other defendants 
not subject to the UCMJ. Third, MEJA extends Federal jurisdiction only 
over felony offenses; Federal misdemeanors are excluded. Finally, MEJA 
may not be used to prosecute someone who has already been prosecuted or 
is being prosecuted by a foreign government for the same conduct 
without the approval of the Attorney General or Deputy Attorney General 
(or a person acting in either capacity).
    The Department supports legislative efforts to hold Federal 
employees and contractors accountable for serious misconduct they may 
commit abroad. We look forward to continuing to work with the Congress 
to ensure that we have the laws we need to hold U.S. contractors 
properly accountable.

          II. THE DEPARTMENT OF JUSTICE'S ROLE IN MEJA CASES

    The Department's involvement in MEJA typically starts when a 
Department of Defense or Department of State law enforcement agency 
presents or refers a case to the Department for possible prosecution. 
As a general matter, these agencies contact the Department of Justice's 
Criminal Division, which serves as the central point of contact within 
the Department of Justice for MEJA referrals from investigating 
agencies. On certain occasions, an investigating agency refers a matter 
directly to a U.S. attorney's office (USAO).
    When an agency refers a potential MEJA case, Criminal Division 
attorneys review the investigative materials presented by the referring 
agency to determine (1) if jurisdiction exists under MEJA, (2) if 
sufficient facts exist to proceed, and (3) where appropriate venue lies 
within the United States. If the Department determines that the case 
falls within MEJA and there are sufficient facts to proceed, the 
Criminal Division refers the matter to the appropriate U.S. attorney's 
office for its consideration. U.S. attorneys' offices ultimately 
determine whether to prosecute or decline a case in the same manner 
that they make such determinations in other cases--pursuant to the 
Principles of Federal Prosecution in the United States Attorneys' 
Manual.
    The Criminal Division also offers guidance and assistance to every 
USAO to which it refers a MEJA case. This assistance generally comes in 
the form of legal guidance regarding MEJA, assistance in obtaining 
information from and working with military law enforcement agencies, 
and coordinating international issues. In certain circumstances, the 
Criminal Division will also provide direct prosecutorial support by 
assigning a trial attorney to partner with the local assistant U.S. 
attorney assigned to the case.
    If a case is initially investigated or later joined by a law 
enforcement agency within the Department--generally the Federal Bureau 
of Investigation (FBI)--the Department fulfills the roles of both 
investigator and prosecutor. On the investigatory side, however, the 
Department generally plays a supporting role as most MEJA cases are 
initially investigated overseas by the Department of Defense or the 
Department of State, because these investigative agencies are usually 
the first to respond to the alleged criminal activity in the conflict 
area. The FBI may participate in certain investigations, mainly those 
of particular complexity or seriousness.
    Since the enactment of MEJA in 2000, the Department of Justice has 
received referrals of potential MEJA cases from both the Departments of 
Defense and State. Of these cases, 12 have resulted in the filing of a 
Federal indictment, information, or complaint and another has resulted 
in a conviction in State court. A number of other cases are under 
active investigation, and some have been declined.
    Of the 12 cases that have been charged in Federal court, 7 have 
resulted in conviction, and the remaining 5 await trial. These cases 
include allegations of sexual abuse (including the possession or use of 
child pornography). Indeed, four cases involving sexual abuse have been 
successfully prosecuted in Federal court; another case has been 
indicted; and others are currently under active investigation. Because 
of confidentiality, privacy, and court-imposed restrictions, I cannot 
address ongoing investigations of sexual abuse.
    The successful prosecutions include: The conviction, in the Western 
District of Washington, of a DOD civilian employee for abusive sexual 
contact of a minor while he was residing in Japan; the conviction, in 
the Southern District of Georgia, of a DOD contractor employed in Iraq 
for abusive sexual contact; the conviction, in the Western District of 
Texas, of a DOD contractor in Qatar on child pornography charges; and 
the conviction, in the Eastern District of Virginia, of another DOD 
contractor in Iraq on child pornography charges.
    It must be noted that even with the broadest scope of jurisdiction, 
however, investigating and prosecuting serious crimes in Iraq and 
Afghanistan are very challenging. As a general matter, investigations 
in any foreign country face particular difficulties of language, 
evidence collection, logistical support, and coordination with a 
sovereign power. In addition, the present circumstances in Iraq and 
Afghanistan raise further obstacles. Field investigation in an active 
war zone is extremely difficult and requires extensive security 
precautions. Witnesses are difficult to locate and when found are often 
reluctant to come to the United States to testify. In short, 
investigating and prosecuting serious crimes in a war zone is a very 
difficult and costly proposition, and the associated challenges cannot 
be underestimated. These logistical challenges help explain why 
investigations and prosecutions under MEJA may take significant time to 
complete.

                     III. INTERAGENCY COORDINATION

    The Department of Justice coordinates regularly, often on a daily 
basis, with other Departments and agencies on MEJA cases, both at the 
initial referral stage and subsequently at the investigation and 
prosecution stage. For example, the Department receives referrals from 
the Department of Defense pursuant to procedures set forth in March 
2005 in Department of Defense Instruction 5525.11.
    In practice, the General Counsel's Office of the Department of 
Defense initiates the referral by sending the Criminal Division a 
summary of the case describing the basic allegations and facts. In some 
cases, the General Counsel's Office also provides a military law 
enforcement report with the initial referral. Once a case is referred 
to a U.S. attorney's office, prosecutors and agents likewise 
coordinate, often on a daily basis.
     While these established procedures have been quite effective in 
ensuring appropriate coordination, we are always looking for ways to 
improve. Thus, in recent months, the Department has been working very 
closely with the Departments of Defense and State to improve the 
process by which both Departments investigate and refer cases to the 
Department of Justice for prosecution. The results of these efforts 
include the recent March 10, 2008, memorandum from the Secretary of 
Defense governing how offenses that are both a violation of MEJA and 
the UCMJ should be handled.
    In addition, the Department recognizes that training and education 
is key to the successful investigation and prosecution of these highly 
complex cases. As a result, the Criminal Division has been proactively 
offering training courses on MEJA to military investigative agencies, 
such as the Army Criminal Investigation Command and the Naval Criminal 
Investigative Service, and has provided instruction on MEJA to the 
Judge Advocate General Corps of the Armed Services as well. This 
training has already contributed to an increase in 2008 of MEJA 
referrals from the Department of Defense.
    In conclusion, Mr. Chairman, I would like to express to you and the 
committee the Department's appreciation for your interest in this 
issue. The Department is committed to remaining vigilant in our efforts 
to bring sexual offenders to justice. I look forward to answering the 
committee's questions.

    Ms. Mandelker. Senator, I can tell you that we do have a 
number of cases under active investigation. We also, in 
addition, have indicted a case of a contractor, of sexual 
assault, and received a conviction. The victim there was a 
member of the military. We've also indicted an additional case 
involving a former member of the military, for rape and murder, 
and that case is pending. So, yes, we do have a number of 
active investigations. Of course, the number of referrals that 
we've received is not a high number. It is, as you've heard 
today, relatively low. But, we are committed to continuing to 
actively investigate these cases and to prosecute them, where 
we have credible evidence and the jurisdiction to do so.
    Senator Feingold. And, specifically, on the sworn testimony 
we've heard today, will you be commencing or continuing 
criminal investigation, based on that sworn testimony?
    Ms. Mandelker. Yes, absolutely.
    Senator Feingold. All right.
    Mr. Reed, is the Department of Defense investigating the 
military's response to the incidents we heard testimony about 
this morning?
    Mr. Reed. I know the second witness has been investigated. 
As to the first witness, I don't recall her testimony as to 
whether she indicated she complained to CID, and then we'd have 
to check with CID on that, as to whether or not they have 
investigated or they have a statement in order to initiate an 
investigation. When I heard her testimony this morning, it was 
the first time I had heard it.
    Senator Feingold. All right. Well, obviously----
    Senator Bill Nelson. Yes; she did say that CID had 
investigated it.
    Mr. Reed. Right.
    Senator Feingold. Well, obviously we'll be watching closely 
what happens with these cases. These brave and patriotic women 
deserve justice, and we owe it to them.
    In the past, when the Department of Justice has been 
questioned about its failure to initiate prosecutions against 
contractors in cases the Department of Defense referred to it, 
DOJ has offered two justifications. First, DOJ has argued that 
it lacks sufficient evidence to prosecute. I understand that 
DOJ has over 200 employees in Iraq working on various issues. 
Are any of these individuals charged with working with State 
Department and Army investigative personnel on investigations 
of contractors to ensure, among other things, that evidence is 
collected to make prosecutions possible?
    Ms. Mandelker. Let me just clarify, with respect to your 
previous question. We do have--out of the victims who testified 
today, we have one active investigation. And, as Mr. Reed 
noted, this was also the first time that we had heard about the 
second victim.
    Absolutely, we have folks both in the Department of 
Justice----
    Senator Feingold. So, with regard to the one you just heard 
about, you will be commencing an investigation.
    Ms. Mandelker. We----
    Senator Feingold. Because you said you hadn't heard about 
it before today. That means you must be commencing an 
investigation after this----
    Ms. Mandelker. We do have----
    Senator Feingold [continuing]. Hearing.
    Ms. Mandelker [continuing]. An active investigation.
    Senator Feingold. I thought you said you hadn't heard about 
it before.
    Ms. Mandelker. The one victim of the incident that occurred 
in 2004, we didn't.
    Senator Feingold. I assume, then, an investigation will 
commence on that.
    Ms. Mandelker. Well, we will work with our colleagues at 
the Department of Defense, and are very interested to work with 
the victim and to see that--what we can do there.
    Senator Feingold. All right. You can go back to answering 
the subsequent question, then.
    Ms. Mandelker. Absolutely, we have a number of prosecutors, 
both here and in Iraq, who are working on these cases. Here in 
the Criminal Division, for example, where I work, we have a 
team of prosecutors who focus on MEJA cases. We also have 
prosecutors all over the country who are willing and able to 
accept referrals of MEJA cases. We work very closely with our 
colleagues who are, in fact, in Iraq, whether it's with our DOD 
or State Department colleagues or the prosecutors the 
Department of Justice has stationed in Iraq.
    Senator Feingold. But, it sounds a little more general than 
my question. My question was, specifically, Are people assigned 
the task to make sure that evidence is collected to make 
prosecutions possible?
    Ms. Mandelker. As cases come into the Department, we do 
have prosecutors who are specifically designated to work on a 
particular case. And we reach out to our colleagues in Iraq 
regularly, as we need--as we need assistance in--their 
assistance, as well as law enforcement's assistance, in 
collecting evidence.
    Senator Feingold. It sounds, a little bit, that's case by 
case, rather than assigning somebody with this general 
responsibility. Wouldn't it be helpful to designate a person or 
persons with that particular responsibility?
    Ms. Mandelker. Well, we do have individuals who are 
designated with that responsibility here in the Criminal 
Division at the Department of Justice. We reach out to our 
colleagues in Iraq, as necessary, and they do provide us with a 
good deal of assistance in furthering these cases.
    Senator Feingold. Well, it sounds like it's particularly 
challenging to do it over there, so I think you may well need 
somebody over there who has that expertise.
    DOJ's second justification for not prosecuting certain 
offenses by contractors is the lack of jurisdiction. DOJ has 
declined to prosecute civilians who have allegedly abused 
detainees, in part because the Military Extraterritorial 
Jurisdiction Act, MEJA, does not provide jurisdiction over 
misdemeanor assault.
    But, MEJA is not the only statute that DOJ statute that DOJ 
can employ. There are other criminal statutes that apply on 
U.S. bases and other facilities within the special maritime 
territory jurisdiction of the United States, which would 
include U.S. bases and detention facilities abroad. For 
example, Section 113 of Title 18 of the U.S. Code provides for 
jurisdiction over simple assault in U.S. special maritime 
territory jurisdiction.
    In a letter to Senator Durbin regarding 20 cases of alleged 
detainee abuse that were referred to the Justice Department, 
the Department stated that, ``There may have been evidence of 
misdemeanor assaults.'' Why didn't you prosecute those 
individuals under section 113 of title 18?
    Ms. Mandelker. Senator, I can tell you that we do, in fact, 
have a conviction emanating out of a case in Afghanistan in 
which we did prosecute a CIA contractor for exactly the charge 
that you mentioned, which is assault. As for the other cases, 
we have a task force that's set up in the Eastern District of 
Virginia. That task force does not sit under me. And I am happy 
to get back to you with a response to your question.

    [The information referred to above was not available at 
press time.]

    Senator Feingold. Please do. And thank you.
    The Justice Department has also argued that MEJA doesn't 
apply to State Department contractors in Iraq. But, Ms. 
Mandelker, isn't it true that MEJA applies to anyone supporting 
a Defense Department mission, and that, in Iraq, the State 
Department and Defense Department have a joint mission?
    Ms. Mandelker. You are correct that MEJA provides for 
jurisdiction over non-DOD contractors whose employment is in 
the scope--is in support of the DOD mission. So, with respect 
to State Department contractors, we have to undertake an 
analysis on a case-by-case basis with respect to whether or not 
the contractor, the offender, the scope of his employment was, 
in fact, in support of the DOD mission.
    Senator Feingold. So, it is possible that it would be 
included----
    Ms. Mandelker. Yes----
    Senator Feingold [continuing]. And applicable to Iraq.
    Ms. Mandelker. That's right, it is possible.
    Senator Feingold. OK.
    Let's talk for a minute about the contractor's response to 
these allegations. There appear to be many cases where the 
contractor's response to these horrible events has been to 
ignore complaints, warn employees to keep quiet, or even fire 
them. To add insult to injury, KBR, Halliburton, and other 
companies have included mandatory arbitration clauses in their 
contracts with employees, which means that these victims cannot 
sue their employers in court, but, instead, must make use of an 
arbitration process that is stacked against the employee.
    Because arbitrations, unlike court proceedings, are not 
open to the press and the public, these mandatory arbitration 
clauses have the additional effect of limiting the information 
available to the public about what's happening with contractors 
in Iraq.
    The United States Government has an obligation to help 
these employees who undertake dangerous service in Iraq and 
elsewhere to vindicate their constitutional right to have a 
court consider their claims against their employers. Will the 
Defense and State Departments give serious consideration to 
requiring contractors to remove these mandatory arbitration 
provisions from their contracts with employees?
    And then, after that, Ms. Mandelker, do you see any legal 
difficulty with adding that requirement as a condition of the 
government contracts under which KBR, Halliburton, and others 
provide services to the United States?
    Mr. Reed.
    Mr. Reed. First of all, as to the arbitration clause and 
contractors, it's outside of my area of expertise, so I won't--
I won't attempt to address that, other than the fact that 
you've made your concern known, and we can take that back.
    I don't know, personally, whether or not the Department can 
demand certain contractual provisions within a civilian 
contract or not, so--but, you have made your--you've made 
your----
    Senator Feingold. Thank you.
    Mr. Reed [continuing]. Point known, and I think we'd--I'd 
have to leave it at that, from a personal----
    Senator Feingold. OK.
    Mr. Reed [continuing]. Perspective.
    Senator Feingold. Mr. Starr. State.
    Mr. Starr. Sir, I would have to do the same thing. I think 
I'd have to check with our procurement officials to make a 
determination whether we could require that in a contract.
    Senator Feingold. All right.
    Mr. Starr. We'd have to have a discussion within the 
Department about it.
    Senator Feingold. And then, let me ask DOJ, then. Ms. 
Mandelker, finally, again, Do you see any legal difficulty with 
adding that requirement as a condition of the government 
contracts?
    Ms. Mandelker. Senator, I, likewise, am not a procurement 
or contract lawyer, but I can say that there should be no 
circumstance under which a victim feels inhibited or hindered 
from reporting their crime to law enforcement. And we need to 
make sure that we create the environment under--by which they 
feel comfortable, again, to report their crimes to law 
enforcement. And we do so, and we will continue to do so. But, 
a lot of work needs to be done.
    Senator Feingold. Well, let me say, on that point, that 
that's a valid point, but this also has to do with the 
accountability and the public nature of proceedings and the 
need for the American public--I'll tell you, I do town meetings 
in every one of Wisconsin's 72 counties every year, and I've 
done 42 listening sessions this year in some weather you 
wouldn't--people in--well, Florida has other challenges, but it 
was cold, and everybody showed up at these listening sessions, 
that--I had so many listening sessions, people are saying, 
``What's going on with these contractors?'' And there's a lot 
of different issues. This one's going to upset people a lot. 
So, the issue of mandatory arbitration has to do with justice 
for the individuals, but it also has to do with accountability 
and--for the American people, as well.
    So, I would like a response, after the fact, from all of 
you, as you've all offered to do, particularly with regard to 
the legality of including that in contracts, but also with 
regard to the other departments.

    [The information referred to above was not available at 
press time.]

    Senator Feingold. And, Mr. Chairman, thank you so much for 
your kindness in letting me go, at this point.
    Senator Bill Nelson. I want you to know how much I 
appreciate you coming here and your interest in this subject. 
At the end of the day, we're trying to make the system work 
like it's supposed to, and something is not working.
    Senator Feingold. Thank you, Mr. Chairman.
    Senator Bill Nelson. I'm curious, Mr. Reed, why--where an 
incident occurred before 2006, as was the case here with Ms. 
Kineston in 2004, why is prosecution barred under the Uniform 
Code of Military Justice, which was amended in 2006, in an 2006 
law, if the case hasn't been prosecuted yet? Is there a statute 
of limitations problem?
    Mr. Reed. Well, statute of limitations would not normally 
be a problem. The general proposition is that both the person 
and the events need to be subject to the code at the time for 
UCMJ jurisdiction to be applicable. And so, even though the 
offense may have been a codal offense, the person, at the time 
that the crime was committed, was not a person subject to the 
code. And I think that would be the argument, if you will, or 
the position that people would take, that the person would not 
be prosecuted subsequently.
    Senator Bill Nelson. How about the third law, the maritime 
and territorial jurisdiction?
    Mr. Reed. That particular--was a Patriot Act amendment in 
2001 to address U.S. citizens--crimes committed by or against 
U.S. citizens on a military installation, I believe. I would 
primarily defer to Mr. Wiegmann on that. But, that is a 
separate--if the person and the offense otherwise qualified, it 
could be another basis for extraterritorial application of 
prosecution in Federal district court, but it is not a basis 
for prosecution under the UCMJ.
    Senator Bill Nelson. In fact, Mr. Wiegmann, didn't you have 
a CIA contractor convicted under that provision of law for the 
assault of a detainee in Afghanistan?

  STATEMENT OF JOHN B. WIEGMANN, ASSISTANT LEGAL ADVISOR FOR 
        MANAGEMENT, DEPARTMENT OF STATE, WASHINGTON, DC

    [The prepared statement of Mr. Wiegmann follows:]

Prepared Statement of J. Bradford Wiegmann, Assistant Legal Adviser for 
            Management, Department of State, Washington, DC

    Good morning Chairman Nelson and members of the subcommittee. I am 
pleased to be here today to discuss the legal framework under which the 
Department of State supports U.S. criminal investigations of violent 
crimes overseas.
    The President has long delegated to Chiefs of Mission his 
responsibility for the security of our missions abroad and of all U.S. 
Government personnel on official duty abroad, other than those under 
the protection of a U.S. area military commander. Likewise the Congress 
has by law vested in the Secretary of State the responsibility to 
develop and implement policies and programs to provide for the security 
of U.S. Government operations of a diplomatic nature, including 
protection of U.S. Government personnel on official duty abroad and 
establishment and operation of security functions at all U.S. 
Government missions abroad. Among the Secretary's specific security 
responsibilities in this regard is the conduct of investigations 
relating to employee security and the performance of other security and 
investigative matters as authorized by law. Finally, the Secretary may 
direct members of the Foreign Service to perform functions, including 
investigative functions, on behalf of other Federal law enforcement 
agencies requiring their services.
    Collectively, these authorities have been viewed as supporting the 
Deparment's role in investigating violent crimes committed by or 
against U.S. Government personnel operating overseas at U.S. diplomatic 
missions or otherwise related to the security of the mission. Such 
investigations are inherent in the responsibilities vested in the 
Secretary of State and in all Chiefs of Mission overseas to provide for 
the security of our missions and personnel abroad. Within the 
Department of State, the responsibility for conducting such 
investigations has been delegated to the Bureau of Diplomatic Security 
(DS), which in turn assigns that responsibility to Regional Security 
Offices that are staffed by DS Special Agents at posts all over the 
world. Of course, such investigations are only one of many tasks these 
agents perform for the Department overseas, including post security and 
protective functions, communications and information security, 
emergency planning, and conducting visa and passport fraud 
investigations.
    The Department of State's investigative functions in this regard 
are of course shared with the Department of Justice, and DS agents work 
closely with their counterparts at the FBI and other Federal law 
enforcement agencies on many of the investigative matters they 
undertake overseas related to the U.S. mission. As authorized by law 
and with respect for the sovereignty of the host country, DS agents 
overseas may also support and assist criminal investigations abroad 
undertaken by the Department of Justice or other law enforcement 
agencies, even where such investigations do not relate directly to the 
U.S. Mission or U.S. Government personnel abroad. DS agents also serve 
as a liaison with foreign government law enforcement authorities on 
many different matters. In places like Iraq and Afghanistan, with 
significant ongoing military operations, DS agents serve as the 
Embassy's principal law enforcement liaison with military investigative 
authorities in the country. Thus an Embassy Regional Security Office is 
one of several different entities that may potentially investigate a 
particular criminal incident abroad.
    In many cases, because Embassy officials are the primary 
representatives of the U.S. Government in the country, they may be the 
first to learn of, and respond to, criminal activity by or against a 
U.S. national overseas. Where appropriate, DS agents may take the lead 
on any subsequent U.S. investigation, particularly where the criminal 
activity involves the U.S. mission and its security. Alternatively, 
after an initial assessment of the facts, they may refer the matter to 
local authorities, the Department of Justice, or other Federal law 
enforcement agencies to investigate, particularly where a nexus to the 
U.S. mission is lacking. Of course, as I have said, DS can and does 
continue to provide support to such investigations where requested to 
do so.
    An important consideration in any U.S. investigation of criminal 
activities overseas is U.S. criminal jurisdiction. U.S. criminal laws 
generally apply only in the United States, unless Congress expressly 
provides otherwise or the courts infer extraterritorial application 
from the nature of the statute or its structure. Many crimes that are 
committed against U.S. citizens overseas are beyond U.S. criminal 
jurisdiction. There is no Federal statute, for example, that makes rape 
or sexual assault of a U.S. national a Federal offense worldwide. In 
most cases, only the local authorities have jurisdiction to prosecute 
the offense. Therefore, most crime against U.S. nationals overseas is 
investigated by local authorities and, if a perpetrator is identified, 
prosecuted within the local court system.
    However, there are of course circumstances where U.S. criminal 
jurisdiction does extend overseas: Under the U.S. Special Maritime and 
Territorial Jurisdiction, the U.S. Government can prosecute individuals 
for a broad range of felonies if they are committed by or against a 
U.S. national on the premises of U.S. diplomatic, consular, or military 
facilities overseas, or residences used by U.S. personnel assigned to 
those facilities. There is a number of specific criminal offenses under 
U.S. law that apply extraterritorially, such as certain offenses 
involving torture, war crimes, material support for terrorism, or drug 
offenses that impact the United States. Notably, there is a Federal 
statute that makes it a Federal offense for one U.S. national to murder 
another, anywhere in the world. Finally, under the Military 
Extraterritorial Jurisdiction Act (MEJA), the U.S. Government may 
prosecute, inter alia, DOD contractors for a broad range of felonies 
committed abroad, as well as non-DOD contractors to the extent that 
their employment relates to supporting the mission of the Department of 
Defense overseas.
    The administration is currently working with the Senate on 
legislation to expand the coverage of U.S. criminal laws in places like 
Iraq where we have ongoing military operations, to ensure that we have 
the tools we need to hold U.S. Government employees and contractors 
overseas accountable where appropriate.
    Thank you for the opportunity to address these issues today and I 
look forward to answering any questions the subcommittee may have.

    Mr. Wiegmann. I think--Ms. Mandelker can address that, but 
I think that is correct. It just depends on where the offense 
occurs under the special maritime territorial jurisdiction. As 
Mr. Reed said, it has to occur on diplomatic premises, military 
base, military installation. I'm not quite sure where exactly 
Ms. Kineston's offense occurred, but that would be the issue. 
If it did occur in one of those locations, it might be subject 
to U.S. jurisdiction.
    Senator Bill Nelson. OK.
    Let me go back to you, Mr. Reed. What kind of predeployment 
training on sexual harassment is required of DOD contractors?
    Mr. Reed. It is my understanding that there is--there are 
provisions which would indicate that contractors are required 
to abide by all the laws, regulations applicable--and 
regulations applicable during their contractual relationship 
with the Department. And I believe there is a reference to 
sexual harassment in a requirement that, prior to deployment, 
they be referred to the sexual harassment Web site to get 
information on that. But, that's really not--I think the best 
way I would like to answer that question for you is that we 
have recognized that we need to emphasize, with contractors, 
the requirement that they notify contractor employees that 
these various laws are applicable, including, you know, the 
laws applicable to sexual assault, and that they provide 
training to those contractors, predeployment, and making it 
available to them upon arrival in the deployed location, to 
take local conditions into consideration. We have taken a 
position to develop those. We are in that process right now. 
And the effort is to increase awareness and, therefore, enhance 
accountability, and ultimately, hopefully, deter this kind of 
misbehavior as employees under contracts to the Department of 
Defense. So, that is a Federal acquisition regulation-type of 
procedure required in order to place the requirement on that.
    Now, we have also, in the interim, publicized the 
applicability of the DOD rules and regulations regarding 
prohibited sexual harassment and sexual assault. They have been 
implemented in the Army as of March 18, 2008, in the regulation 
that further implemented the DOD implementation. And it's my 
understanding that Multi National Forces Iraq (MNFI), in Iraq, 
has made that a requirement within the AOR, and that 
notifications be publicized in public places as to where 
persons who become aware of, or may be subjected to, sexual 
harassment and sexual assault can go for help, as well as where 
to report incidents of that nature.
    So, to fully answer your question, we have a program 
ongoing right now, and we anticipate that it will expand the 
awareness and the knowledge of all folks who join the Armed 
Forces.
    Senator Bill Nelson. Certainly, the deficiencies that have 
been brought out--and let me amend your last statement, there, 
to ``make aware members of the Armed Forces.'' We're talking 
about making aware civilian contractors----
    Mr. Reed. Right.
    Senator Bill Nelson [continuing]. As well, who are there as 
a result of the United States Armed Forces.
    Mr. Reed. I should have said ``total forces''----
    Senator Bill Nelson. Yes.
    Mr. Reed [continuing]. Because total forces include our 
civilian----
    Senator Bill Nelson. Right.
    Mr. Reed [continuing]. Employees and our civilian 
contractors, as well as the members of the Armed Forces, that 
we bring to the fight, so to speak.
    Senator Bill Nelson. OK.
    Now, I think what you've said is certainly a step in the 
right direction, but isn't the question so obvious? We're in 
the fifth year of a war. Why wouldn't we have made sure that 
every member of the total Armed Forces was aware of what they 
need to do about these assaults?
    Let me ask you this. Is there a requirement in the 
contracts that requires contractors to provide training on how 
to report and handle sexual assaults while they are deployed?
    Mr. Reed. I don't believe there currently is, although, as 
I mentioned, the Department has--is in--is pursuing that to put 
it in a Federal acquisition regulation system in order to make 
that a requirement, and the Department stands ready to assist 
the contractors in the formulation of what that training ought 
to consist of.
    Senator Bill Nelson. Well, you're the Office of Legal 
Counsel. It seems like, to me, as a result of what you might 
have learned today, that might be something you want to insert 
in your contracts.
    Mr. Reed. We are pursuing that, Senator. Thank you.
    Senator Bill Nelson. I don't want to be a cynic and respond 
to you by saying ``5 years later.''
    Let me ask you this. In one of the reported cases--this is 
one of the reported cases in the news--the alleged victim had a 
rape kit that was completed by an Army medical officer shortly 
after the rape. And then, the rape kit was turned over, 
allegedly, to KBR. My question to you is, What criteria guide 
the decision by which the investigative authorities in Iraq and 
Afghanistan, or any other forward-deployed locations, turn 
cases over to the victim's employer for further identification? 
When the military has the evidence, doesn't the military have a 
responsibility to keep that evidence?
    Mr. Reed. Well, I can't respond to that particular point in 
time, but, yes, the position ought to be that when the military 
provides treatment that results in forensic evidence of a crime 
that was committed, that they ought to have the evidence turned 
over to the military criminal investigative organization that's 
available until such time as the facts and circumstances of the 
alleged perpetrator and the jurisdiction of the case is sorted 
out, and then hand it over to the appropriate authorities for 
purposes of doing that.
    Whether or not such were available at the specific time in 
question, I can't answer that.
    Senator Bill Nelson. Well, of course you can't. No; I'm 
trying to get to the bottom----
    Mr. Reed. Right. But----
    Senator Bill Nelson [continuing]. Of this whole thing.
    Let me give you another one. For example--now, where the 
military has the evidence and they turn it over to contractor 
security control, shouldn't you have a formalized system in 
place in order to ensure the integrity of the evidence and the 
followup on these cases?
    Mr. Reed. I don't believe it's protocol to turn them over 
to non-law-enforcement officials.
    Senator Bill Nelson. I would agree with that.
    Mr. Reed. And I also don't----
    Senator Bill Nelson. But, in this case, it did happen.
    Mr. Reed. And I also don't believe that the military 
criminal investigative agencies who obtain evidence under chain 
of custody would not turn it over to somebody under chain-of-
custody procedures. And I'm not aware that that occurred in 
this case, or not.
    Senator Bill Nelson. That's one of the cases that I cited, 
at the outset, in my remarks.
    Well, let me ask you this. If there's evidence suggesting 
that a U.S. member of the Armed Forces sexually assaulted a 
civilian contractor, and that evidence is told to another U.S. 
serviceman, what should be the process by which--point by 
point, step by step, that the evidence would be protected? 
You're the legal counsel.
    Mr. Reed. It depends on the capabilities and qualifications 
of the soldier--or military members you're talking about. But, 
if you get a military law enforcement or official involved in 
that process, if they are such, then they should take the 
evidence under chain-of-custody purposes, preserve it, protect 
it, secure it, and turn it over to appropriate authorities for 
consideration of prosecution. If they are just a soldier or an 
airman or sailor who have no training or experience in 
evidence-collecting and/or forensics, that could be 
problematic. So, the answer depends on who those military 
members are, and their backgrounds and experience and 
responsibilities. But, once it's in the hands of a law 
enforcement community official, then they should be taking such 
evidence under chain of custody and preserving it for possible 
prosecution down the road.
    Senator Bill Nelson. OK. Now, Mr. Reed, this is your chart.
    Mr. Reed. No; it's not. That's the IG's chart.
    Senator Bill Nelson. Well, it's the Department of Defense 
chart.
    Mr. Reed. Oh. OK.
    Senator Bill Nelson. You're here as a representative of the 
Department of Defense.
    Mr. Reed. All right.
    Senator Bill Nelson. And this is the inspector general of 
the Department of Defense.
    Now, you say, of--the victim being a U.S. civilian, that of 
those 26 sexual assault cases, you know of no convictions on 
there.
    Mr. Reed. Sir, that list is by victim status. Whether or 
not a person is prosecuted is determined by the offender's 
status. So, I don't know. You have a lot of U.S. civilian 
victims there, but I don't know whether the perpetrator of the 
offense is a military member, a DOD civilian, a non-DOD 
civilian, a contractor, a non-DOD contractor, or whatever, and 
it's that factor that is determinative as to whether or not 
there is jurisdiction under the Federal Code and the UCMJ Code. 
The status of the victim does not determine the jurisdiction.
    Senator Bill Nelson. Well, your inspector general in the 
Department of Defense argues that these are the ones that would 
have had the connection with the military, and we're just 
trying to get some action, here.
    Mr. Reed. I understand, sir. And I don't disagree with you. 
I believe that it--based upon the IG's information as to the 
victim status, he's telling you that they had investigations 
that involved these victims in that status. What it doesn't 
tell you is what the status is of the alleged offender, which 
is what you would use to determine the jurisdiction of those 
cases. Many of the cases that are ``no action'' might be 
because the individual was not subject to U.S. laws and was not 
subject to the UCMJ. I can't answer that question. It could 
have been a foreign national that was the perpetrator. So, the 
information tells you of the number of cases that the military 
criminal investigators ran that involved a victim of sexual 
assault--by the military criminal investigative organizations 
in those two locations--but, it doesn't specifically identify 
the basis, in personam jurisdiction over the individual.
    Senator Bill Nelson. Do you see the bottom of that chart? 
It says ``Investigated Subjects by Affiliation.''
    Mr. Reed. I see that.
    Senator Bill Nelson. Can you move that chair? Yeah, just 
put it up. Does that answer your question?
    Mr. Reed. It depends on--I don't--I assume--I have to 
assume that they correspond with--up in--in table No. 1, but I 
don't know for sure, and I don't know which cases they latch up 
to.
    Senator Bill Nelson. All right. But, you know----
    Mr. Reed. But those----
    Senator Bill Nelson. You know what I'm getting at.
    Mr. Reed. But, those are categories----
    Senator Bill Nelson. All right, let's just get----
    Mr. Reed. But, those are categories of----
    Senator Bill Nelson [continuing]. Let's get----
    Mr. Reed [continuing]. Of jurisdiction, U.S. civilian, if 
they're subject to MEJA, and U.S. military, if they're subject 
to UCMJ.
    Senator Bill Nelson. All right.
    Mr. Reed. Or MEJA.
    Senator Bill Nelson. Ms. Mandelker.
    Ms. Mandelker. Yes.
    Senator Bill Nelson. With regard to your Department of 
Justice, how many people has Justice successfully prosecuted 
for sexually assaulting a U.S. civilian contractor in Iraq or 
Afghanistan?
    Ms. Mandelker. For sexual assault? Senator, we--I don't 
know of any convictions. I do know that we have active 
investigations.
    Senator Bill Nelson. And how many of those are active 
investigations?
    Ms. Mandelker. Well, it's upward of about--somewhere of 
about--somewhere between four and six, I believe is the number.
    Senator Bill Nelson. And, as a result of today, you say 
that Mrs. Kineston's is one of those?
    Ms. Mandelker. Again, Senator, today is the first day that 
we--Mrs. Kineston's testimony is the first time that we've 
heard of such a case. We will absolutely reach out to Mrs. 
Kineston. We, in fact, had a good discussion with her lawyer, 
in the recess. And I can give you my word that as--across the 
board, we remain very committed to investigating these cases 
and to prosecuting these cases.
    I would like to point out one very important----
    Senator Bill Nelson. Let me ask you about Mrs. Leamon 
before you go on. What about her?
    Ms. Mandelker. We do have an active investigation of that 
case. As you know, it just recently came to light, but we do 
have an active investigation.
    Senator Bill Nelson. OK. And, of course, you can't comment 
on the investigation. But, that's--well, that's news. You do 
have an investigation going on, on--the Department of Justice--
on Mrs. Leamon's case.
    Ms. Mandelker. That is correct.
    Senator Bill Nelson. Let me ask you--you were going to say 
something, and I interrupted you.
    Ms. Mandelker. Well, I would just want to point out, 
because I think it's a--it's very important to note, as Mr. 
Starr noted at the outset, these cases are very important 
cases. The allegations are very serious. At the same time, it 
can be extremely difficult to investigate these cases. As you 
heard today, it is an unfortunate fact that these crimes occur 
in a war zone. And there are numerous difficulties, of course, 
with investigating cases, when the conduct occurred in a war 
zone. These are dangerous areas.
    We do make--we do send our investigators out to investigate 
these cases. I've personally been involved in the decision to 
send our agents out to investigate these cases, to collect 
evidence. It's very important to--that we do so. But, we should 
applaud the men and women who take on this--take on these 
investigations, because--I can tell you that we send them out, 
they do great work. We worry about them when they're out there. 
And it needs to be recognized that, you know, time is, 
unfortunately, not on our side, when you're talking about a 
sexual assault case, but we face some very difficult obstacles, 
and it is also unfortunate that we don't control the timetable 
by which we go and investigate these cases.
    Senator Bill Nelson. Well, of the four to six cases that 
you say that are open investigations, how old are these 
investigations?
    Ms. Mandelker. Senator, I'm simply not at liberty to 
discuss pending investigations.
    Senator Bill Nelson. Well, of course, the concern would be 
that they've been going on for years, and the perpetrators, of 
course, would not be brought to justice, if they are 
responsible.
    Well, knowing that the evidence is so difficult to collect 
and to preserve, why is there no office from the Department of 
Justice deployed to the theater?
    Ms. Mandelker. We do, in fact, have both prosecutors and 
agents in theater. We have prosecutors here at home who are 
working on these cases. So, I can't tell you that the 
individuals who are in-theater are only dedicated to MEJA 
cases, but we do enlist their help and their support, and they 
have provided us with a great deal of support.
    Senator Bill Nelson. I can tell you that I think that I 
speak for the committee, that that's not good enough. In a war 
zone, where evidence is hard to collect and it has a way of 
disappearing, and the preservation of that evidence is 
necessary, I think you all ought to consider putting an office 
forward in the theater.
    Ms. Mandelker. Let me say, of course, it's very often the 
case that the law enforcement--it's always the case, I should 
say, that the principal law enforcement agents that respond to 
the scene are either in the military or at the State 
Department, and they, as well, have a number of dedicated 
agents in the field who are working on these cases. So, there 
are a--there's a good deal of resources available in-theater in 
Iraq to handle these investigations.
    Senator Bill Nelson. I would beg to differ with you, on the 
basis of the testimony that we received this morning.
    Let me ask you about your coordination with the Department 
of Defense and the Department of State. Now, this is a response 
I got from your Department last night, ``We coordinate closely 
with the referring agencies, and in most instances, the 
referring agencies play a significant role in the investigation 
in any prosecution. The Department''--in this case, of 
Justice--``is aware of the small number of allegations of 
sexual assault cases by women who worked as government 
contractors in Iraq.''
    So, you consider 26 cases as a small number.
    Ms. Mandelker. Again, I think, Senator, that you heard from 
the other Departments the number of referrals that have been 
made to the Department of Justice with respect to sexual 
assaults in Iraq. I think most of those cases are--have to do, 
in fact, with the military, and I don't know if those cases 
reflect cases, again, where we would have jurisdiction to 
prosecute.
    Senator Bill Nelson. Well, in your testimony, you state 
that MEJA contains a number of important restrictions. Has the 
Department of Justice sought legislation to alleviate any of 
those restrictions?
    Ms. Mandelker. We have--we do support legislative efforts 
to provide greater accountability for unlawful acts committed 
by contractors in Iraq. We are working with the Congress, and 
we will continue to work with the Congress on such efforts.
    Senator Bill Nelson. Are there any other restrictions in 
your testimony this morning, in your written testimony, that 
you want to change, or do you support those restrictions?
    Ms. Mandelker. Well, again, Senator, we are working with 
the Congress on legislative efforts to amend MEJA to ensure 
that more contractors are accountable in Iraq.
    Senator Bill Nelson. It's my understanding that, in one of 
these cases, that your Department instructed the State 
Department, upon referral of a potential MEJA case, to cease 
any further investigation in that case, and you prohibited the 
State Department from discussing the matter with anyone. Is 
that true?
    Ms. Mandelker. Again, Senator, I don't have that 
information, and I'm----
    Senator Bill Nelson. You don't know.
    Well, then I would like to keep it open for the record for 
you to answer that and give, if that was true, any 
justification for stopping any further action by the Department 
of State. If you will respond in writing to the committee.

    [The information referred to above was not available at 
press time.]

    Senator Bill Nelson. Your testimony describes MEJA cases in 
which convictions have been obtained or charges brought, but 
every one of those involves charges other than crimes, such as 
the possession of child pornography or sexually abusive 
contact. And I want to applaud you to enforce the law in those 
cases.
    But, that's not why we're here today. We're here for the 
sexual assault cases. And, thus far, you've told us, now, that 
there has not been one conviction under MEJA which you have, 
and you just told us that you have one open investigation on 
this case that was presented to us today.
    If you will, take from this hearing the fact that the 
Department of Defense inspector general has identified those 26 
sexual assault cases involving U.S. civilian women between 2002 
and 2008, and not one of them appears to be have been 
prosecuted.
    So, is there anything more that you want to add about the 
lack of a prosecution in any of those cases?
    Ms. Mandelker. Again, I am not familiar with the cases that 
are represented on the chart. I am only familiar with cases 
that have been specifically referred to the Department of 
Justice.
    I want to assure you that, when we get such a--referrals, 
we take those referrals very seriously. We undertake active 
investigations. As I already mentioned, it can be extremely 
difficult to conduct an investigation in a war zone, but we are 
committed to taking those cases. The Department, in fact, has a 
long history of success when we're talking about prosecuting 
sexual offenders. We have a long history of success, both 
domestically and abroad. We prosecute numerous child offenders. 
We have, in fact, under MEJA. We prosecute sex traffickers. We 
prosecute sex tourists. We take sex offenses very seriously, 
and there's no exception when it comes to sexual assaults of 
contractors or civilians in Iraq.
    Senator Bill Nelson. Well, one of the reasons of this 
hearing was to make you aware. And you now are aware. And this 
is an inspector general report from the Department of Defense 
dated April the 3rd in a letter to me. So, I would suggest to 
you, in our capacity of oversight of the executive branch of 
government, that you coordinate with the Department of Defense 
and the Department of State as to whether or not some of these 
cases have fallen through the cracks.
    For me to say anything more would be superfluous. You know 
what the problem is. Let's get it solved.
    Thank you.
    And the meeting is adjourned.
    [Whereupon, at 12:17 p.m., the hearing was adjourned.]
                              ----------                              


              Additional Material Submitted for the Record


 Response to An Additional Question Submitted for the Record to Acting 
         Assistant Secretary Gregory Starr by Senator Feingold


    Question. I understand that the bilateral security agreement 
between the United States and Iraq that is currently under negotiation 
is likely to provide immunity for U.S. contractors. Given the U.S. 
Government's failure to establish a meaningful oversight regime, do you 
think it makes sense to deny the Iraqis the authority to prosecute 
contractors? Why don't we, at a minimum, provide for Iraqi jurisdiction 
where the United States declines to exercise its jurisdiction? What is 
the precedent for a blanket grant of immunity to contractors where no 
jurisdiction exists under local law?

    Answer. Contractor support is critical to the U.S. Mission in Iraq. 
The status of contractors is an issue of concern to both the United 
States and Iraq. Contractors working on behalf of the U.S. government 
in Iraq currently possess immunity from Iraqi legal process for their 
contractual acts under a CPA Order (now part of Iraqi domestic law), 
which is tied to the presence of the Multinational Force in Iraq and 
its UN Chapter VII mandate. As we negotiate a new strategic and 
security relationship with Iraq, we have stressed our respect for Iraqi 
sovereignty, and Iraq has emphasized the importance they place on 
effective accountability for USG contractors in Iraq. We seek an 
outcome that will ensure our ability to maintain an effective 
contractor presence in Iraq.
    Our negotiations with the Iraqi government are still ongoing; so we 
cannot comment on any specific provisions until those negotiations 
conclude.
    I must register disagreement, however, with the premise that the 
United States government has failed to establish a meaningful oversight 
regime for contractors. While it is well understood that conducting 
investigations of critical incidents in a war zone poses many difficult 
challenges, there have been investigations concerning conduct by U.S. 
government contractors in Iraq, and, where appropriate, referrals to 
U.S. law enforcement entities have been made. With regard specifically 
to private security contractors, the U.S. government has made 
significant efforts to improve its oversight and accountability in the 
last several months.
    Moreover, the Department of State strongly supports efforts to 
provide greater legal accountability for unlawful acts its contractors 
may commit in Iraq or other areas of combat operations. The 
Administration has been working closely with the Senate on legislative 
amendments that would increase our ability to hold U.S. contractors 
overseas accountable under federal law. We have supported those efforts 
and would very much like to see appropriate legislation on this issue 
enacted as soon as possible.


                                 ______
                                 

 Responses to Additional Questions Submitted for the Record to Robert 
Reed, Associate Deputy General Counsel, Military Justice and Personnel 
   Policy, Office of the General Counsel, Department of Defense, by 
                            Senator Feingold

Leamon Case


    Question. During the hearing, you testified that in Ms. Leamon's 
case, Ms. Leamon ``appeared to be pleased with .  .  . the 
responsiveness of the CID once they were notified of the situation,'' 
and that agents of the Criminal Investigative Division (CID) appeared 
to have ``responded appropriately under the circumstances.''


    a. Ms. Leamon testified that, at CID, ``I was interrogated from 2 
p.m. until midnight by two special agents. I advised them that I had an 
attorney, and they convinced me to sign a waiver of my rights. The 
agents were very intimidating and their questions and demeanor 
suggested strongly that they thought I was lying about the rape.'' Does 
this testimony indicate to you that Ms. Leamon was ``pleased'' with 
CID's ``responsiveness?'' Do you consider the behavior she described to 
be appropriate?


    b. Ms. Leamon testified that CID did not detain her assailants or 
restrict their movements, instead requiring her to be accompanied by 
CID military personnel as she moved about the base. Is it your position 
that it was not appropriate under the circumstances to detain her 
assailants? If so, was it inappropriate in your view for the military 
police to arrest Ms. Kineston's assailant?


    c. Ms. Kineston testified that the Judge Advocate General she spoke 
with regarding sexual harassment on the base told her he could not 
assist her. Was this an appropriate response?

    Answer.


          Does Ms Leamon's testimony indicate to you that Ms. Leamon 
        was pleased with CID's ``responsiveness?'' Do you consider the 
        (CID) behavior she described to be appropriate?

    a. The question now presented to me is an inaccurate reflection of 
the dialogue between me and Senator Nelson at the hearing on April 9, 
2008, about the content of the testimony of another witness, Ms. 
Leamon. In order to understand the response I provided, in context, an 
understanding of the previous testimony at the hearing is required as 
background.
    Ms. Leamon's testimony begins on page 41\1\ of the Congressional 
Transcript of the hearing, in which she testified that she had not seen 
a doctor until she had left Camp Cedar and arrived at Camp Adder, where 
she was seen and examined by a military doctor at the Combat Support 
Hospital. Ms. Leamon stated, ``The physician brought me into the 
clinic. We spent a great deal of time talking. She was very kind. She 
asked me to describe what happened. And she spent a lot of time telling 
me that, from what I could describe to her, that it sounded like I had 
been drugged and that I was raped.'' On page 42, Ms. Leamon's testimony 
goes further in describing her treatment by the military physician and 
states, ``She's--she was very, very supportive of my situation. She 
encouraged me at that time, to report it, as well, further. She asked 
if I would see the combat stress personnel. And she did her exam and 
collected her samples.'' She testified that she followed the advice 
given, stating, ``I did see combat stress psychiatrist, who prescribed 
four tablets, for me to sleep that night.'' This testimony was in 
contrast to the treatment she received by Kellogg Brown and Root (KBR) 
personnel and Global Investigations personnel, which is also a part of 
KBR, while still at Camp Cedar.
---------------------------------------------------------------------------
    \1\ The page numbers mentioned in Mr. Reed's response refer to the 
page numbers of the unedited transcript of the hearing, not this print.
---------------------------------------------------------------------------
    On page 43, when Senator Nelson first asked Ms. Leamon about her 
signed statement in which she stated, ``When I got to Adder, I was 
taken to CID (Criminal Investigation Division) where I was interrogated 
from 2:00 p.m. until midnight by two special agents,'' Ms. Leamon 
responded, ``Correct. That was not that day. This was Global 
Investigations, which is KBR's investigators, that arranged the stay of 
interrogation.'' Ms. Leamon's testimony then went on to discuss events 
involving Global Investigations. Although Ms. Leamon again verified, on 
pages 45-46, what she said in her written statement, on page 46, Ms. 
Leamon also testified that the CID special agents took her to a room in 
the military housing area and put her in a room for the night between 
the two special agents for her protection and was given further advice 
for her protection when she wanted to leave the room to smoke a 
cigarette. Ms. Leamon had previously testified about her concern for 
her safety and criticism of KBR treatment and the fact that her alleged 
assailants were still present where she had to work at Camp Cedar. Ms. 
Leamon's testimony on page 46 continued, in which she stated she was 
picked up the following morning, as scheduled, and went back to the CID 
office where they reviewed her 14-page statement, asked her more 
questions, and asked her to handwrite a narrative. Once completed, she 
was taken back to Camp Cedar.
    The relevant dialogue referenced between Senator Nelson and me is 
on pages 72-73 of the Congressional Transcript. Senator Nelson's 
question to me was, ``Likewise, you must have been warmed to hear, as 
Ms. Leamon was shuffled around, that it wasn't until she got into the 
hands of the military, the Criminal Investigative Division and, even 
more specifically, until she got to the military doctor, that she 
started getting some attention.'' (Emphasis added.) I answered the 
question as more specifically presented, ``That was her testimony, and, 
taking it as it is, she appeared to be pleased with the care that she 
received from the hospital physician that treated her, and generally, 
the responsiveness of the CID, once they were notified of the 
situation.'' (Emphasis added.) My response then stated, ``I--so, I 
guess the answer is, it would appear that they responded appropriately 
under the circumstances.'' (Emphasis added.) In summary, my response to 
the question regarding the CID involvement was on the issue of their 
responsiveness to Ms. Leamon's request for medical and CID assistance, 
not all aspects of CID's involvement, although providing her security 
and security advice and allowing her time to review and amend her 
statement were additional indicia of assistance she was provided. As to 
whether the length of time attributed to ``interrogation'' is accurate 
or appropriate under the circumstances, that issue is a matter best 
addressed to CID officials familiar with procedures and the case in 
question. My response to Senator Nelson's question was not addressing 
this aspect of Ms. Leamon's testimony--it was only addressing what 
Senator Nelson's question appeared to be actually asking about--CID's 
responsiveness to her request for assistance.
    Ms. Leamon's hearing testimony on page 45 of the Congressional 
Transcript was unspecific about what rights (as a victim of a crime) 
she was asked to waive, or even explain why (as a victim of a crime) 
she would be asserting she had an attorney and, therefore, would be 
reluctant to cooperate with CID as a law enforcement organization 
attempting to investigate her complaint. Similarly, she did not explain 
what she meant by "the agents were very intimidating." It is not 
uncommon for investigators to challenge a complainant's complaint in 
order to determine what occurred without the added possibility of self-
serving embellishments or generalizations. However, since there is no 
further explanation provided, I cannot comment on such statements when 
presented in a vacuum.


          Is it your position that it was not appropriate under the 
        circumstances to detain her assailants? If so, was it 
        inappropriate in your view for the military police to arrest 
        Ms. Kineston's assailant?

    b. Ms. Leamon's complaint apparently involved a fellow KBR 
contractor civilian employee and a military member only identified as 
``Jason'' (pages 30 and 34, Congressional Transcript). CID was 
initiating an investigation based on Ms. Leamon's complaint. On a 
military installation, such as Camp Cedar, authority to "arrest" and 
``detain'' (in the context of putting someone in jail) is limited by 
the circumstances, and the standards applicable to pretrial 
confinement. Generally, persons are not placed in military confinement 
based solely upon being accused of committing a crime. In this case, 
CID provided Ms. Leamon protection from her alleged assailants, as she 
testified. In Ms. Kineston's testimony she stated that the military 
police ``dragged him out of the truck, put handcuffs on him, and took 
him to jail.'' I cannot confirm or deny what Ms. Kineston stated took 
place regarding this 2004 incident and would question whether this 
person was ever ``jailed'' as testified. Ms. Kineston later testified 
on page 18 of the Congressional transcript that she was told by the 
military police that "because he was a contractor, that they had the 
right to kick off--anybody off the base immediately, and that's what 
their--that's what they were going to do.'' This latter procedure of 
``kicking the person of base'' is what is ordinarily referred to as 
being ``barred from the installation'' under the installation 
commander's authority. As a general rule, military law enforcement 
officials only temporarily detain, without ``jailing,'' civilians until 
such time as the civilian in question can be turned over to civilian 
law enforcement authorities, if available. If civilian authorities are 
not available to assume custody of the individual, or are without 
authority to do so, the person is normally removed and barred from the 
installation. This appears to be what Ms. Kineston stated had occurred 
regarding her alleged assailant.
    DoD's regulations implementing the Military Extraterritorial 
Jurisdiction Act (MEJA; 18 U.S.C. Sec. 3261 et seq.), Department of 
Defense Instruction 5525.11 (March 3, 2005), now authorize military law 
enforcement officials outside the United States to arrest persons based 
on probable cause who are believed to have violated the Military 
Extraterritorial Jurisdiction Act (MEJA; 18 U.S.C. Sec. 3261 et seq.). 
This action is only to be taken with a view toward MEJA prosecution in 
Federal district court. The MEJA limitations against the removal of the 
person from the foreign country (18 U.S.C. Sec. 3264), the initial 
proceedings required by 18 U.S.C. Sec. 3265, and procedural 
requirements of DODI 5525.11 will apply. The temporary detention in a 
military detention facility of a person charged with a MEJA offense may 
only be pursuant to the order of the Commander of the Combatant Command 
or designee. The decision is made on a case-by-case basis and temporary 
detention in a military detention facility should be ordered only when 
a serious risk is believed to exist that the person shall flee and not 
appear, as required, for any pretrial investigation, pretrial hearing, 
or trial proceedings, or the person may engage in serious criminal 
misconduct (e.g., the intimidation of witnesses or other obstructions 
of justice, causing injury to others, or committing other offenses that 
pose a threat to the safety of the community or to the national 
security of the United States). Paragraph 6.2.5, DODI 5525.11. Since 
October 2006, persons serving with or accompanying the armed forces 
during a contingency operation conducted for the purpose of engaging 
the enemy or hostile forces would be subject to military jurisdiction 
under the Uniform Code of Military Justice (UCMJ; chapter 47 of title 
10, United States Code). As such, a person subject to the UCMJ can be 
apprehended and placed in pretrial confinement based on probable cause 
and when a lesser form of restraint is determined to be inadequate to 
ensure the person's continued presence for any court-martial 
proceedings or to prevent the person from committing additional 
offenses or being a threat to the safety of others.


          Ms. Kineston testified that the Judge Advocate General she 
        spoke with regarding sexual harassment on the base told her he 
        could not assist her. Was this an appropriate response?

    c. As to the question regarding Ms. Kineston's testimony that she 
was denied judge advocate assistance regarding her request for legal 
assistance for being sexually harassed, Ms. Kineston's testimony is on 
pages 19-20 of the Congressional Transcript. As I understood her to 
testify and I read the transcript of her testimony, Ms. Kineston sought 
assistance under the military Legal Assistance Program, as then-
provided in 2004 at Anaconda, the KBR camp at Balad Air Base, Iraq. In 
her testimony, Ms. Kineston, a civilian contractor employee, stated to 
Senator Nelson that it was correct that she was told she wasn't 
provided such legal services because the JAG office ``didn't support 
civilians on the base'' and she explained her situation involving her 
civilian assailant and how she had been subjected to sexual harassment 
and inappropriate behavior by her fellow KBR civilian contractor 
employees and supervisors. She was advised that she could contact a 
civilian attorney in Baghdad.
    Paragraph 2-5, Army Regulation 27-3, ``The Army Legal Assistance 
Program,'' defines those persons eligible to receive legal assistance 
(and, where noted, within the limitations described. Subparagraph (a) 
(7) states that civilian contractors accompanying the Armed Forces of 
the United States outside the United States are persons eligible to 
receive legal assistance, when DOD is contractually obligated to 
provide this assistance to such personnel as part of their logistical 
support and (a) the legal assistance provided must be in accordance 
with--and not prohibited by--applicable international agreement, or 
approved by the host-nation government in some way, and (b) legal 
assistance is limited to ministerial services (for example, notarial 
services), legal counseling (to include the review and discussion of 
legal correspondence and documents), legal document preparation 
(limited to powers of attorney and advanced medical directives, and 
help on retaining civilian lawyers. Subparagraph (a)(7) goes on to 
state that Staff Judge Advocates (SJAs) should recommend elimination of 
such contractual obligations whenever these contracts are reviewed or 
renegotiated. As previously stated, Ms. Kineston was told that she 
wasn't eligible for legal assistance concerning her concerns and 
complaints about her civilian supervisors and co-workers and that she 
could seek assistance from a civilian attorney in Baghdad.
    Army Regulation 27-3, also authorizes a commander responsible for 
legal assistance services to limit legal assistance when the space, 
facilities, or legal and supporting staff are unavailable to provide 
full legal assistance services. There is similar authority to limit the 
legal assistance services provided to one or more categories of persons 
who otherwise would be eligible to legal assistance. A request for a 
more specific and detailed response regarding the eligibility of 
civilian contractor employees at Camps Cedar or Adder, Iraq, at that 
time, should be addressed to the Judge Advocate General of the 
Department of the Army.

Use-of-Force Incidents


    Question. How many investigations of use-of-force incidents 
involving contractors off of U.S. bases in Iraq have been conducted by 
the Army Criminal Investigative Division or other military law 
enforcement agencies? What was the outcome of these investigations?

    Answer. Questions 2 through 5 presented to Mr. Reed involve 
investigative procedures and unrelated investigation cases. Those 
questions are beyond Mr. Reed's knowledge and the information he 
possesses. Those questions should be addressed to the Office of 
Investigative Policy and Oversight, Office of the Inspector General, 
Department of Defense.
Referral of Contractor Personnel for Investigation


    Question. How many incidents have been referred by the agencies 
that hire and oversee contract personnel, such as the Army Corps of 
Engineers, to the criminal investigative agencies?

    Answer. Questions 2 through 5 presented to Mr. Reed involve 
investigative procedures and unrelated investigation cases. Those 
questions are beyond Mr. Reed's knowledge and the information he 
possesses. Those questions should be addressed to the Office of 
Investigative Policy and Oversight, Office of the Inspector General, 
Department of Defense.
Review of All Defense Contractor Weapons Discharges


    Question. The 2008 defense authorization legislation required the 
Defense Department to review all discharges of weapons by its 
contractors and to investigate these incidents when appropriate. The 
Washington Post reported in October 2007 that Maj. Kent Lightner, head 
of the Reconstruction Operations Center and the individual charged with 
oversight of Army Corps of Engineer contractors, usually accepted the 
companies' version of events when he learned of a shooting incident. He 
said, ``If [a contractor] sends me a report and says, `Bad guys shot at 
us, we shot back and dropped two of them,' I'm not going to 
investigate.'' This suggests that the Army's investigative system may 
be overly passive.

    a. What are the criteria for determining whether an investigation 
is needed?

    b. What do you consider to constitute an investigation for purposes 
of complying with the 2008 defense authorization? Does it include an 
effort to speak to witnesses and collect evidence?

    c. At what point must an incident be referred to a law enforcement 
agency?

    Answer. Questions 2 through 5 presented to Mr. Reed involve 
investigative procedures and unrelated investigation cases. Those 
questions are beyond Mr. Reed's knowledge and the information he 
possesses. Those questions should be addressed to the Office of 
Investigative Policy and Oversight, Office of the Inspector General, 
Department of Defense.

Washington Post Article on Triple Canopy


    Question. Last year, the Washington Post reported that former U.S. 
servicemembers Shane Schmidt and Charles Sheppard alleged that, while 
working for Triple Canopy, another employee, also a former U.S. 
servicemember, fired deliberately at Iraqi vehicles and civilians. Has 
the Defense Department interviewed these witnesses (Mr. Schmidt and Mr. 
Shane)? Has it conducted an investigation? What was the result of this 
investigation?

    Answer. Questions 2 through 5 presented to Mr. Reed involve 
investigative procedures and unrelated investigation cases. Those 
questions are beyond Mr. Reed's knowledge and the information he 
possesses. Those questions should be addressed to the Office of 
Investigative Policy and Oversight, Office of the Inspector General, 
Department of Defense.


                                 ______
                                 

               Prepared Statement of Hon. Barack Obama, 
                       U.S. Senator From Illinois

    Mr. Chairman, thank you for holding this hearing on closing legal 
loopholes to ensure the prosecution of sexual assaults and other 
violent crimes committed overseas by American civilians operating in 
war zones. I also appreciate the courage of the witnesses who are 
testifying about their experiences in the hope that their efforts will 
prevent similar crimes against others and bring perpetrators to 
justice.
    I am deeply disturbed by the pattern of sexual assaults taking 
place in war zones and the apparent inability of the Federal Government 
to deter these crimes or hold perpetrators accountable. Press reports 
have described the accounts of a number of women who have been victims 
of sexual assault. These victims have described an unacceptable pattern 
of intimidation and obstruction in their pursuit of justice and 
assistance.
    We need immediate action to ensure that cases like these are 
investigated and prosecuted aggressively. Last December, I joined with 
Senators Daniel Akaka and Jon Tester in sending letters to the Attorney 
General and the inspectors general of the Departments of Defense and 
State seeking information about their apparent failure to investigate 
allegations made by former Halliburton/KBR administrative assistant 
Jamie Leigh Jones that she was drugged and raped by several coworkers 
while employed at Camp Hope in Baghdad.
    With approximately 180,000 contractors working in Iraq, we also 
need to address the broader challenge of ensuring that we have adequate 
legal mechanisms and adequate enforcement resources to deter and 
prosecute violent crimes committed in Iraq. In February 2007, I 
introduced the Transparency and Accountability in Military and Security 
Contracting Act to require accountability and enhanced congressional 
oversight for contractors operating in war zones. Components of this 
bill that require new reporting on the role of contractors operating in 
Iraq and new regulations on selection, training, and equipping of 
security contractors were signed into law as part of the FY08 National 
Defense Authorization Act. I am working with Senate colleagues to pass 
other components of the bill to increase accountability of contractors 
operating in war zones by ensuring that they are subject to U.S. 
criminal law.
    I will continue to work with this committee and other Senate 
colleagues to ensure that contractors are held accountable for their 
actions and that we take all appropriate steps to prevent the types of 
crimes that are the subject of today's hearing.
                                 ______
                                 

                Prepared Statement of Jamie Leigh Jones

    Good Afternoon, Mr. Chairman and members of the committee. First 
and foremost, I would like to thank all the members of the Senate and 
Congress who have united together in support of holding military and 
State Department contractors accountable under enforceable law.
    My name is Jamie Leigh Jones and I am the President of ``The Jamie 
Leigh Foundation'' which is a nonprofit organization dedicated to 
helping United States citizens and legal residents who are victims of 
crime while working abroad for government contractors and 
subcontractors. We demand government contract corporations and 
government entities act responsibly, and are held accountable to 
provide a work environment free of sexual harassment, and limit the 
potential for abuse. We work toward the day when all U.S. citizen 
contractors will be able to work without fear, consternation, and 
safety concerns. I am submitting this written testimony to share with 
you a personal but not isolated tragedy that affects our fellow women 
who go overseas to fight for our shadow army, the United States 
contractors.
    I went to Camp Hope, located in the ``Green Zone,'' Baghdad, Iraq, 
on July 25, 2005, in support of Operation Iraqi Freedom. Halliburton/
KBR, my employer, prior to leaving the U.S., promised me that I would 
live in a trailer equipped to house two women, with a shared bathroom. 
This is an actual photograph I was shown prior to leaving Texas:



    Upon arrival at Camp Hope, I was assigned to a predominantly all-
male barrack. According to documents provided by Halliburton/KBR in 
response to my EEOC complaint, approximately 25 women to more than 400 
men were documented to be housed. I never saw a woman at the barrack. I 
did find myself subject to repeated ``cat-calls'' and men who were 
partially dressed in their underwear while I was walking to the 
restroom, on a separate floor from me. The EEOC credited my testimony 
with respect to this matter. That Determination Letter is attached to 
this statement as an Exhibit.
    I complained about my living conditions to Halliburton/KBR 
management and asked to be moved into my promised living quarters. 
These repeated requests were denied.
    On the fourth day in Iraq, I received a call on my cell phone. The 
reception in the barracks was bad, so I stepped outside to take the 
call. Afterward, I noticed that the woman I was replacing (her contract 
had expired and she was returning back to the U.S.) and several others 
were outside. They called me over and invited me to come and sit with 
them. When I did, I was offered a drink. The men (identified only as 
Halliburton/KBR firefighters) told me that one of them could make a 
really good drink and so I accepted. When he handed it to me, he told 
me, ``Don't worry, I saved all my Rufies for Dubai,'' or words very 
similar to that. I thought that he was joking, and felt safe with my 
coworkers. I was naive in that I believed that we were all on the same 
team. I took two sips or so from the drink.
    When I awoke the next morning, I was extremely sore between my 
legs, and in my chest. I was groggy and confused, but did not know why 
at that time. I tried to go to the restroom, and while there I realized 
that I had many bruises between my legs and on my wrists. I was 
bleeding between my legs. At that point in time, I suspected I had been 
raped or violated in some way. When I returned to my room, a man was 
laying in the bottom bunk of my bed.



    I asked him if he 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. I dressed and left for help.
    I reported this incident to an Operations coordinator, who took me 
to the KBR clinic. The clinic then called KBR security to escort me to 
the Army CASH (Combat Army Support Hospital). Army doctor, Jodi 
Schultz, M.D., performed a rape kit.
    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 damage to my genitalia, that it was apparent 
that I had been raped. Dr. Schultz took photographs, and completed a 
form that indicated the bruising on my inner thighs and stomach, and on 
my wrists. She also took swabs, vaginal combings, and scrapings from 
under my fingernails (on a blue sheet) as well as my panties and bra, 
and then 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.
    The KBR security men then took me to a trailer and locked me in. 
Two armed guards (Ghurka's) were stationed outside my door. I was 
placed inside and not allowed to leave. I had my cell phone, but it 
would not call outside of Baghdad. I asked for a phone to contact my 
father, and this was denied. I was not provided food or drink (although 
there was a sink, I did not trust it to drink from), until after I had 
been there for quite some time (approximately a day).
    I begged and pleaded with one of the Ghurka guards until he was 
finally willing to share his cell phone with me so that I could call my 
father, back in Texas. I had begged him until he finally agreed. My 
father then contacted my Congressman, Ted Poe. Congressman Poe then 
took actions to get me out of Iraq.
    Once State Department officials (Matthew McCormick and Heidi 
McMichael) saved me from the container I was placed in--a ``safe'' 
trailer--and I requested that Heidi stay with me. She did.
    The following day, Heidi took me to Saddam's palace to meet with a 
psychiatrist. I did not feel comfortable speaking with a man, alone, at 
that point in time. The psychiatrist was insensitive and not 
compassionate.
    I was later interviewed by Halliburton/KBR supervisors, and it was 
made clear to me that I had essentially two choices: (1) ``Stay and get 
over it,'' or (2) go home with ``no guarantee of a job,'' either in 
Iraq or back in Houston. Because of the severity of my injuries, I 
elected to go home, despite the obvious threat of termination.
    Once I returned home, I sought medical attention for both 
psychiatric and physical evaluation. 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.
    My mother found a therapist (Dawn Nelson) who agreed to treat me, 
and did so until I moved from Texas. I was diagnosed with PTSD.
    I also saw Sabrina Lahiri, M.D., who found that my breasts were 
asymmetrically disfigured, and that my pectoral muscles had been torn 
from the brutal rape. She wanted to do reconstructive surgery, so I 
sought ``second opinions'' from several surgeons regarding that 
surgery. Even the doctor Halliburton forced me to see, reviewed my 
injuries and agreed that they were due to forced trauma. He expressed 
anger and disgust. Dr. Ciaravino performed my first reconstructive 
surgery.
    Shortly after returning to Texas, I was contacted by a State 
Department Diplomatic Security Special Agent, Lynn Falanga. During our 
initial conversation she seemed very nice and compassionate. She 
appeared to be angry and driven by what happened to me. However, I did 
not hear from her for months at a time. My attorney, Stephanie Morris, 
spoke to a State Department attorney, Jenna Lipinski, several times 
from January 2007 through to May 2007. During the initial call in 
January, Lipinski stated the forensic evidence in the case had been 
processed back in the fall of 2006. Then, Ms. Lapinski refused to 
identify any AUSA assigned to my case.
    Some time around May 2007, Lynn Falanga indicated during a 
conversation that she was not aware of a rape kit's existence or of any 
pictures of my injuries. I insisted the rape kit existed and forwarded 
a copy of KBR's EEOC response to prove that the doctor had 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 Falanga stating she had 
found the rape kit, however, the pictures and the doctor's notes that 
were originally attached to the top of the rape kit were still missing.
    In October 2007, Lynn Falanga called to ask if I had spoken with 
ABC for a
20/20 segment. I informed her that I had and that it was expected to 
air in October 2007. A couple days later Falanga called with flight 
information to meet with the assistant U.S. attorney assigned to my 
case. I was flown to Florida to meet with an assistant U.S. attorney 
(Tiffany Eggers) in Florida--who asked me about the rape almost 2\1/2\ 
years earlier. I asked Eggers where I should refer victims who 
contacted me through the Jamie Leigh Foundation and she responded 
``Don't refer them to me or my office, but you may want to refer them 
to the Office of Victims of Crime.''
    Since that time, a grand jury was convened and I presented a grand 
jury testimony at the end of January 2008, which was 2\1/2\ years after 
my sexual assault. Before the hearing, I was told by the AUSA that all 
parts of my rape kit had been located and were in my case file. I have 
not received any results from the grand jury hearing, to date. 
Currently there has not even been an indictment filed in my case.
    I still require additional medical treatment, including another 
reconstructive surgery, and I continue to go to counseling 2 times per 
week.
    I turned to the civil court for justice, in part, because the 
criminal courts have failed to even file an indictment at this point. 
Currently there are approximately 180,000 military contractors in Iraq. 
Approximately 20,000 of those contractors are females. Fifty percent of 
Americans on military bases in Iraq are contractors. Contractors have 
been immune from both Iraqi law and the Uniformed Code of Military 
Justice therefore they are hired to work in a legal vacuum, beyond 
adequate jurisdiction. There has not been a single complete prosecution 
of a criminal contractor to date.
    When I decided to pursue a civil suit, I was informed that within 
my 13-page employment contract that had an additional 5 pages attached, 
included an arbitration clause. At this point in my life I had no idea 
what an arbitration was other than a tiny paragraph included in the 
lengthy document that mandated that I could not get justice from the 
civil court system. I learned that I had signed away my right to a 
trial by jury. I thought this right was guaranteed by the seventh 
amendment to the United States Constitution that specifically states, 
``In Suits at common law, where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall be preserved.'' When 
there are no laws to protect army contractors who are working abroad 
(from violent crimes), what is to stop people from taking the law into 
their own hands? The arena harbors a sense of lawlessness. The forced 
arbitration clause in army contractor's contracts, prove to protect the 
criminals of violent crimes, rather than enforce they be held 
accountable by a judge and jury.
    Victims of crime perpetrated by employees of taxpayer-funded 
government contracts in Iraq deserve the same standard of treatment and 
protection governed by the same laws whether they are working in the 
U.S. or abroad.
    Military contracting corporations harbor and ignore criminal 
activities in Iraq, which under the arbitration clause agreement, 
protects them and does not hold corporate accountability when a crime 
has been committed. This clause also paves the way for corporations to 
not be held accountable under criminal law. My case wasn't an isolated 
incident. Since no actions of law could help other victims at this 
point, I started ``The Jamie Leigh Foundation'' 
www.jamiesfoundation.org. This problem goes beyond just me. Through the 
Jamie Leigh Foundation, I have become aware of numerous other women who 
were assaulted and raped and were then retaliated against for having 
reported those attacks. To date, 40 women have come forward through my 
foundation. A number of them shared their tragedies in confidence 
because they were silenced by provisions of their arbitration 
agreements.
    The arbitration proceeding is private and discrete and the outcome 
of arbitration cannot be disclosed to the public. Unfortunately, 
arbitration is stacked in favor of businesses, making it harder for 
individuals to prevail in a dispute and that is not just, and unfair to 
the patriotic hard-working employees.
    How can this country not protect us contractors, who have left our 
families to help our country in an effort to build democracy overseas, 
when we are victimized criminally? The United States military and its 
supporting contractors are in Iraq to create a democratic society. 
Within this democratic society, our military is teaching Iraq and 
Afghanistan the values and importance of the rules of law. Why teach 
other nations democracy and the importance of enforceable law when the 
U.S. hires civilians to work in Iraq with full blown immunity to all 
laws? To not provide adequate laws to umbrella contractors in Iraq 
undermines this mission's credibility.
    My goal is to ensure all American civilians who become victim of 
violent crimes while abroad, have the right to justice before a judge 
and jury no matter what the case--civil or criminal.
    The United States Government needs to provide people with their day 
in court when they have been raped and assaulted by other American 
citizens. There has been no prosecution after 2\1/2\ years in my case. 
Hopefully the next victim will not have to wait so long.
                                 ______
                                 
                                 
                                 
                                 ______
                                 

                  Prepared Statement of Hon. Ted Poe, 
                     U.S. Representative From Texas

    I thank the Senate Committee on Foreign Relations for holding this 
important hearing on how to prosecute crimes committed overseas by 
American civilian contractors. I became involved in this issue nearly 3 
years ago when my constituent called me asking for help for his 
daughter, Jamie Leigh Jones. He said that his daughter was drugged, 
gang-raped, and being held against her will in a shipping container 
only 4 days after she arrived to work at Camp Hope in Baghdad. 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 U.S. Embassy in Baghdad, rescued Jamie, 
and brought her back home to the United States.
    The United States Government has a responsibility to protect 
American civilians who work in support of an American military mission 
overseas. The Government affords these protections to American citizens 
on American soil and to American soldiers in combat, but the Government 
doesn't know how to react when the crime involves contractors. This is 
unacceptable.
    It's been nearly 3 years since Jamie was assaulted, but still she 
has not seen justice. Although an Assistant U.S. Attorney interviewed 
Jamie and a State Department Special Agent investigated her case, Jamie 
was left in the dark about the status of her case for long periods of 
time. After 2\1/2\ years, Jamie wanted answers, so she decided to go 
public with her case. It was only after appearing on 20/20 that the 
Department of Justice began to communicate more frequently with Jamie.
    Since Jamie has gone public with her experience, my office has 
heard from several other women who are all former contractors and 
allege similar assaults. Unfortunately, we've learned that Jamie's case 
is not unique. I've met with Department of State employees, who 
explained who is responsible for investigating crimes committed against 
contractors, how the Department of State conducts investigations, and 
when a case is turned over to the Department of Justice for possible 
prosecution. Since civilian contractors work under one government 
agency, the other agencies refuse to take responsibility when a crime 
occurs and pass the buck to another agency. My repeated inquiries to 
the Department of Justice have received generic responses, all 
providing already known information. In January, I sent a letter to 
Secretary of State Condoleezza Rice and Secretary of Defense Robert 
Gates along with 110 Members of Congress, requesting detailed 
information on the policies, procedures, and protocol that exist to 
prevent and respond to sexual assaults on contractors in Iraq. In his 
response, Secretary Gates informed me that he called for the Department 
of Defense inspector general to conduct a review of the Department's 
policies and procedures regarding crimes committed against civilian 
contractors in Iraq and for possible recommendations. I look forward to 
the conclusions and recommendations, but in the interim, we must not 
forget the women victimized in Iraq and further victimized by the 
system that is set up to deliver justice.
    While the Federal Government figures out who is responsible and who 
has jurisdiction, the assailants remain free and unaccountable for 
their crimes. Americans cannot go abroad and commit attacks on fellow 
Americans without the long arm of the law holding them accountable. 
Jamie deserves justice; the other victims deserve justice; and justice 
is what we do in America. And that's just the way it is.

                                 ______
                                 


            Prepared Statement of Hon. Louise M. Slaughter, 
                   U.S. Representative From New York

    Thank you, Chairman Nelson and the Senate Committee on Foreign 
Affairs, for holding a hearing on the disturbing and critical issue of 
sexual assault committed overseas by American civilians in combat 
environments.
    American citizen Jamie Leigh Jones, while employed in Baghdad, 
Iraq, by KBR, a former subsidiary of Halliburton, alleged that she was 
drugged, assaulted, and viciously gang-raped by her coworkers. 
Following the attack, Army doctors performed a medical examination on 
Ms. Jones, showing evidence of vaginal and anal rape. However, the 
results of the rape kit were turned over to KBR, Ms. Jones' employer. 
She would later discover that portions of that kit had mysteriously 
disappeared. According to Ms. Jones, she was then held captive under 
armed guard and deprived of food and water for 24 hours. State 
Department agents in the U.S. Embassy at Baghdad facilitated Ms. Jones' 
release. Over 2\1/2\ years later, Jamie's assailants have yet to be 
indicted, and she has yet to receive justice.
    We would like to believe this is an isolated horrifying incident.
    But Jamie Leigh is far from alone.
    The affidavits filed in the case of Jamie Leigh Jones show an 
alarming pattern of widespread sexual assault and harassment among 
government-contracted employees, environments that condone and support 
such behavior, and retaliation against victims who come forward 
regarding these crimes. Indeed it seems contractors prefer to sweep 
allegations under the rug and out of the public view because billions 
of dollars, taxpayer dollars, are at stake.
    This week, The Nation published the harrowing story of ``Lisa 
Smith'' another KBR-contracted employee raped while working in Iraq. I 
have been advocating against sexual violence for many years, and this 
was one the most disturbing cases that I have ever come across. I am 
impressed with her strength to come here today to testify before this 
committee and share her story. KBR discouraged Lisa repeatedly from 
reporting her assault, warning that doing so would put her in danger. 
Well, we stand here with her today to say Lisa Smith deserves justice.
    In January of this year, I was joined by 110 Members of Congress in 
sending letters to the Departments of Defense and State making it clear 
that we will not rest until criminal offenders are punished to the 
letter of the law, victims are treated with respect and receive needed 
services and contractors paid for by the American taxpayer, are held to 
account. I would like to submit a copy of this letter for the record.
    Let today's hearing be a wakeup call to the Departments of Defense 
and State. As they dole out massive government contracts with taxpayer 
dollars, they have an obligation to make clear exactly what steps they 
are taking to ensure that what happened to Jamie Leigh Jones, Lisa 
Smith, and others like them will never happen again. There is no excuse 
but to afford Americans living at home or abroad the same rights to 
treatment, services, and proper legal recourse when they are victims of 
a violent crime.



Attachments:


                             Congress of the United States,
                                  Washington, DC, January 24, 2008.
Hon. Robert M. Gates,
Secretary of Defense,
Washington, DC.
    Dear Mr. Secretary: We are concerned about the Department of 
Defense's efforts to protect Americans employed by government 
contractors in Iraq from violent crime and to ensure the needs of 
victims are met. DOD employees who commit crimes are accountable for 
those crimes under U.S. law.
    American citizen Jamie Leigh Jones, while employed in Baghdad by 
KBR, a former subsidiary of Halliburton, alleged that she was assaulted 
and gang raped by fellow employees. Afterwards, Army doctors performed 
a medical examination on Ms. Jones. However, the results of the rape 
kit were turned over to KBR, Ms. Jones' employer. Portions of the rape 
kit are now missing. According to Ms. Jones, she was then held captive 
under armed guard for 24 hours without food or water. State Department 
agents in the U.S. Embassy at Baghdad facilitated Ms. Jones' release.
    In another case, American citizen Tracy Barker, while employed by 
KBR, alleged that she was sexually assaulted by a State Department 
employee. Her alleged assaulter continues to work for the State 
Department today.
    Unfortunately, these are not isolated incidents. Many other women 
have reported sexual assault and harassment while working for 
government contractors. Ms. Jones and Ms. Barker's harrowing 
experiences prompt us to pose questions regarding the DOD's overall 
efforts to address crimes against individuals in similar situations.
Prevention and Assistance
    How does the DOD assist American civilians living and working in 
Iraq who are victims of crime? Does the DOD include language in 
contracts requiring contractors to ensure their employees live and work 
in non-hostile/non-violent environments? Does the DOD provide 
government contracted employees with sexual assault and sexual 
harassment training? If so, how and when is this training implemented? 
Does the DOD provide such employees--American citizens--with 
information regarding their rights as crime victims? Does the DOD have 
available resources for dealing with the aftermath of victimization?
Investigations
    What is the DOD's protocol on rape and sexual assault 
investigations of government contract employees abroad? Does the DOD 
send information regarding allegations of sexual assault to the 
Department of Justice for possible criminal investigations? Who 
provides the forensic examinations and what is the protocol to ensure 
that the exams and evidence are appropriately maintained and a chain of 
custody is in place? 
Accountability
    What types of control and enforcement power does the DOD have over 
civilian contracting companies when their employees commit violent 
crimes? What is the procedure for receiving complaints from American 
civilian contractors? If a complaint is received, what repercussions 
exist, including contractual repercussions, for the contracting 
company? Have there been any contractual repercussions for KBR 
following Ms. Jones' accusations? What was the rationale of the Army 
Doctor that turned Ms. Jones' rape kit to KBR? Who is responsible for 
receiving rape kits turned over by Army doctors? After receiving a rape 
kit, who safeguards it and ensures that the chain of custody is not 
tampered?
Offenders
    What policies exist for addressing American civilian contractors, 
who are alleged or accused of committing crimes while in Iraq? What 
safety mechanisms are put in place after a report of sexual assault to 
ensure the safety of the victim and other potential victims? Are the 
alleged offenders removed from their position? Are contractors required 
to terminate the employment of alleged offenders of violent crime 
during investigations?
Reporting
    Does the DOD collect data on the number of reported cases of sexual 
assault and other violent crimes among American civilian contractors or 
government contracted employees? If so, how is that data collected and 
where is that data published?
    Victims of crime perpetrated by employees of taxpayer funded 
government contracts in Iraq deserve the same standard of treatment 
they have a right to at home. We hope the DOD is working to prevent 
crime, protect victims, and hold contract employees accountable. Thank 
you for your consideration. Because of the urgent nature of this 
matter, we request a response by February 24, 2008.
            Sincerely,

Signed by the following Members of Congress:

Louise M. Slaughter; Ted Poe; Jan Schakowsky; Henry Waxman; Tom Lantos; 
Susan Davis; Gary Ackerman; Loretta Sanchez; Jane Harman; Zoe Lofgren; 
James R. Langevin; Lloyd Doggett; Robert Brady; Joe Courtney; Doris 
Matsui; Pete Stark; Kathy Castor; John Lewis; Shelley Berkley; Ginny 
Brown-Waite; Allyson Schwartz; Madeleine Bordallo; Brian Higgins; James 
McGovern; Steve Cohen; John Larson; Jim McDermott; Lois Capps; Phil 
Hare; Christopher Shays; Tom Allen; Sam Farr; Linda Sanchez; Mazie K. 
Hirono; Sander Levin; Jim Costa; Vic Snyder; Tim Ryan; Leonard Boswell; 
Raul Grijalva; Neil Abercrombie; Dave Loebsack, Bob Etheridge; Grace 
Napolitano; Chris Van Hollen; Nancy Boyda; Michael Honda; Betty 
McCollum; Betty Sutton; Michael Michaud; Dennis Moore; Solomon Ortiz; 
Eleanor Norton; Danny Davis; David Price; George Miller; Donald Payne; 
Howard Berman; Rosa DeLauro; Lynn Woolsey; Carolyn Cheeks Kilpatrick; 
Earl Blumenauer; Chaka Fattah; Steve Rothman; Carolyn Maloney; Jerrold 
Nadler; Gene Green; Jim Moran; Maxine Waters; Adam Smith; Joseph 
Crowley; Bob Filner; Maurice Hinchey; Silvestre Reyes; Dennis Kucinich; 
Tammy Baldwin; William Delahunt; Ellen Tauscher; Nydia Velazquez; 
Norman Dicks; Albert Wynn; Bobby Scott; Joe Sestak; Corrine Brown; 
Debbie Wasserman Schultz; Sheila Jackson Lee; Alcee Hastings; Keith 
Ellison; Michael Capuano; Adam Schiff; Henry Johnson; Patrick Kennedy; 
Lucille Roybal-Allard; Al Green; Edolphus Towns; Chris Murphy; John 
Tierney; Collin Peterson; Brad Miller; Bruce Braley; Ed Marky; Carol 
Shea-Porter; Peter DeFazio; Darlene Hooley; Michael McNulty; Jay 
Inslee; Gabrielle Giffords; John Hall; Hilda Solis; Joe Baca; and 
Elijah Cumming.
                                 ______
                                 
                             Congress of the United States,
                                  Washington, DC, January 24, 2008.
Hon. Condoleezza Rice,
Secretary of State,
Washington, DC.
    Dear Madam Secretary: We are concerned about the State Department's 
efforts to protect Americans employed by government contractors in Iraq 
from violent crime and to ensure the needs of victims are met. We 
believe the State Department should play a role particularly when such 
crimes occur within the State Department's territory.
    American citizen Jamie Leigh Jones, while employed in Baghdad by 
KBR, a former subsidiary of Halliburton, alleged that she was assaulted 
and gang raped by fellow employees. Afterwards, Army doctors performed 
a medical examination on Ms. Jones. However, the results of the rape 
kit were turned over to KBR, Ms. Jones' employer. Portions of the rape 
kit are now missing. According to Ms. Jones, she was then held captive 
under armed guard for 24 hours without food or water. State Department 
agents in the U.S. Embassy at Baghdad facilitated Ms. Jones' release.
    In another case, American citizen Tracy Barker, while employed by 
KBR, alleged she was sexually assaulted by a State Department employee. 
Her alleged assaulter continues to work for the State Department today.
    Unfortunately, these are not isolated incidents. Many other women 
have reported sexual assault and harassment while working for 
government contractors. Ms. Jones and Ms. Barker's harrowing 
experiences prompt us to pose questions regarding the State 
Department's overall efforts to address crimes against individuals in 
similar situations.

Prevention and Assistance
    How does the State Department assist Americans living and working 
in Iraq that are victims of crime? What efforts has the State 
Department undertaken to ensure that Americans employed by government 
contractors are living and working in non-hostile/non-violent 
environments? Has the State Department provided government contracted 
employees with sexual assault and sexual harassment training? If so, 
when is this training provided and what personnel provide that 
training? Has the State Department provided such employees--American 
citizens--with information regarding their rights as crime victims and 
available resources for dealing with the aftermath of victimization?

Investigations
    What is the State Department's protocol on rape and sexual assault 
investigations abroad? Does the Department send information regarding 
allegations of sexual assault and other violent crimes to the 
Department of Justice for possible criminal investigations? Who is 
responsible for conducting sexual assault forensic examinations on 
victims? What is the protocol to ensure that the exams and evidence are 
appropriately maintained and a chain of custody is in place?

Offenders
    What is the State Department's policy for addressing American 
civilian contractors who are accused of committing crimes? What safety 
mechanisms are put in place after a report of sexual assault to ensure 
the safety of the victim and other potential victims? What is the 
policy for removing alleged offenders from their position following an 
allegation?

Reporting
    Does the State Department collect data on the number of reported 
cases of sexual assault collected among government contracted 
employees? If so, how is this data collected and where is that data 
published?
    Victims of crime perpetrated by employees of taxpayer funded 
government contracts in Iraq deserve the same standard of treatment 
they have a right to at home. We hope the State Department is working 
to prevent crime and protect victims. Thank you for your consideration. 
Because of the urgent nature of this matter, we request a response by 
February 24, 2008.
            Sincerely,

[Signed by the same 111 Representatives listed in the letter to DOD 
above.]