    [Senate Hearing 112-937]
    [From the U.S. Government Publishing Office]

                                                           S. Hrg. 112-937

       HOLDING CRIMINALS ACCOUNTABLE: EXTENDING CRIMINAL JURISDICTION TO
                  GOVERNMENT  CONTRACTORS AND EMPLOYEES ABROAD

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

                                    HEARING

                                   BEFORE THE

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                          ONE HUNDRED TWELFTH CONGRESS

                                 FIRST SESSION

                                   __________

                                  MAY 25, 2011

                                   __________

                               Serial No. J-112-24

                                   __________

             Printed for the use of the Committee on the Judiciary

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                              U.S. GOVERNMENT PUBLISHING OFFICE
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                           COMMITTEE ON THE JUDICIARY

                      PATRICK J. LEAHY, Vermont, Chairman
    HERB KOHL, Wisconsin                 CHUCK GRASSLEY, Iowa, Ranking
    DIANNE FEINSTEIN, California             Member
    CHUCK SCHUMER, New York              ORRIN G. HATCH, Utah
    DICK DURBIN, Illinois                JON KYL, Arizona
    SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
    AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
    AL FRANKEN, Minnesota                JOHN CORNYN, Texas
    CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
    RICHARD BLUMENTHAL, Connecticut      TOM COBURN, Oklahoma
                Bruce A. Cohen, Chief Counsel and Staff Director
            Kolan Davis, Republican Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

                            MAY 25, 2011, 10:04 A.M.

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     3
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
        prepared statement...........................................   106

                                   WITNESSES

    Witness List.....................................................    29
    Breuer, Hon. Lanny A., Assistant Attorney General, Criminal
      Division, U.S. Department of Justice, Washington, DC...........    21
        prepared statement...........................................    30
    Corn, Prof. Geoffrey S., Associate Professor of Law, South Texas
      College of Law, Houston, Texas; Lieutenant Colonel, USA,
      Retired........................................................     7
        prepared statement...........................................    38
        attachment to prepared statement.............................    42
    Edney, Michael J., Of Counsel, Gibson, Dunn & Crutcher LLP,
      Washington, DC.................................................     9
        prepared statement...........................................    92
    Lee, Tara, Partner and Global Co-Chair, Transnational Litigation,
      DLA Piper LLP (US), Washington, DC.............................     5
        prepared statement...........................................   102

                                   QUESTIONS

    Questions submitted to Hon. Lanny A. Breuer by Senator Grassley..   109
    Questions submitted to Michael J. Edney by Senator Grassley......   108

                                    ANSWERS

    Responses of Hon. Lanny A. Breuer to questions submitted by
      Senator Grassley...............................................   112
    [Note: At the time of printing, the Committee had not received
      responses from Michael J. Edney.]

                    MISCELLANEOUS SUBMISSIONS FOR THE RECORD

    Aegis LLC, Kristi Rogers, Chief Executive Officer, Arlington,
      Virginia, statement............................................   116
    Balderas, Ignacio, Chief Executive Officer, Triple Canopy, Inc.,
      Reston,
      Virginia, May 24, 2011, letter and online editorial post.......   124
    Commission on Wartime Contracting in Iraq and Afghanistan,
      Michael J. Thibault, Co-Chair, Commissioner, and Christopher
      Shays, Co-Chair, Commissioner, May 24, 2011, letter............   128
    Franken, Hon. Al, a U.S. Senator from the State of Minnesota, and
      Ranking Member Chuck Grassley, a U.S. Senator from the State of
      Iowa, letter to Hon. Gene L. Dodaro, Acting Comptroller
      General, U.S. Government Accountability Office, Washington, DC,
      May 26, 2011...................................................   131
    Huffington Post, The, Op-Ed, ``Laying Down the Rules for Private
      Security Contractors,'' Ignacio Balderas, Chief Executive
      Officer, Triple Canopy, Inc., May 24, 2011.....................   135
    Triple Canopy, Inc., Ignacio Balderas, Chief Executive Officer,
      Reston,
      Virginia, May 24, 2011, letter.................................   133

       HOLDING CRIMINALS ACCOUNTABLE: EXTENDING CRIMINAL JURISDICTION TO
                  GOVERNMENT CONTRACTORS AND EMPLOYEES ABROAD

                                  ----------

                            WEDNESDAY, MAY 25, 2011

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:04 a.m., in
    Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
    Leahy, Chairman of the Committee, presiding.
        Present: Senators Leahy, Whitehouse, Franken, Blumenthal,
    and Grassley.

              OPENING STATEMENT OF HON. PATRICK J. LEAHY,
                A U.S. SENATOR FROM THE STATE OF VERMONT

        Chairman Leahy. I know Senator Grassley is on his way, but
    we have Senators who have to be going in and out with all the
    other hearings. I will start.
        What I want to do in this hearing is to consider the need
    to ensure accountability for crimes committed by Government
    contractors and employees abroad. President Obama has been
    working hard to improve America's credibility in the world, our
    reputation for justice, and our commitment to the rule of law.
    But a key component of that important mission is ensuring
    accountability for those who represent us overseas.
    Accountability is crucial, not just for our image abroad and
    our diplomatic relations, but for ensuring our national
    security.
        To promote accountability, Congress must make sure that our
    criminal laws reach serious misconduct by American Government
    employees and contractors wherever they act. I introduced in
    the last Congress the Civilian Extraterritorial Jurisdiction
    Act, and I will be introducing similar legislation this year.
        Tragic events in Iraq in 2007 made clear the need to
    strengthen the laws providing for jurisdiction over American
    Government employees and contractors working abroad. In
    September 2007, Blackwater security contractors working for the
    State Department shot more than 20 unarmed civilians on the
    streets of Baghdad, killing at least 14 of them, and caused the
    obvious rift in our relations with the Iraqi Government.
        Efforts to prosecute those responsible for these shootings
    have been fraught with difficulties. Our ability to hold the
    wrongdoers in this case accountable remains in doubt. Had
    jurisdiction for these offenses been clear, FBI agents likely
    would have been on the scene immediately, which could well have
    prevented the problems that have plagued the case.
        Other incidents have shown that this Blackwater case was
    not an isolated incident. Private security contractors have
    been involved in violent incidents and serious misconduct in
    Iraq and Afghanistan, including other shooting incidents in
    which civilians have been seriously injured or killed. In these
    cases, too, there have not been prosecutions.
        In the last Congress, the Senate Judiciary Committee heard
    testimony from Jamie Leigh Jones, a young woman from Texas who
    took a job with Halliburton in Iraq in 2005 when she was 20
    years old. In her first week on the job, she was drugged and
    then she was gang-raped by co-workers. Remember, 20 years old.
    When she reported this assault, her employers moved her to a
    locked trailer, where she was kept by armed guards and freed
    only when the State Department intervened.
        Ms. Jones testified about the arbitration clause in her
    contract that prevented her from suing Halliburton for this
    outrageous conduct, and Congress has moved to change the civil
    law to prevent that kind of injustice. Criminal jurisdiction
    over these kinds of atrocious crimes abroad, however, remains
    complicated, depending too greatly on the specific location of
    the crime, making prosecutions inconsistent and sometimes
    impossible. In this case of this gang rape, the only person who
    got locked up was the woman who got raped. We must fix the law
    to help avoid arbitrary injustice and ensure that victims will
    not see their attackers escape accountability.
        I worked with Senator Sessions and others in 2000 to pass
    the Military Extraterritorial Jurisdiction Act and then again
    to amend it in 2004 so that U.S. criminal laws would extend to
    members of the U.S. military, to those who accompany them, and
    to contractors who work with the military.
        The next step is to establish clearly that all U.S.
    Government employees and contractors who commit crimes while
    working abroad--whether they work with the military or not--can
    be charged and tried in the United States. As the military
    withdraws from Iraq and Afghanistan, the American presence in
    those countries will consist largely of civilian employees and
    contractors. There has to be accountability. If they are going
    to represent our Government overseas, then they ought to be
    bound by the same laws that you and I everybody in this room
    are bound by. And in those instances where the local justice
    system may be less fair, this explicit jurisdiction will also
    protect Americans by providing the option of prosecuting them
    in the United States rather than to be in hostile local court.
        So we have to ensure criminal accountability to improve our
    national security. Our allies, including those countries most
    essential to our counterterrorism and national security
    efforts, have to work with us. Moreover, the talented men and
    women we need to advance our national security efforts will be
    more likely to step forward and serve if we stamp out the
    lawless atmosphere that we see in places like Iraq and
    Afghanistan. That is why the Civilian Extraterritorial
    Jurisdiction Act is supported by people like Ignacio Balderas,
    CEO of security contractor Triple Canopy.
        In the past, legislation in this area has been bipartisan.
    I hope it will be again. I have been working with the Justice
    Department to make this legislation better, and I hope we can
    move forward with it.
        [The prepared statement of Chairman Leahy appears as a
    submission for the record.]
        We have been joined by Senator Grassley, and I will yield
    to him.

               OPENING STATEMENT OF HON. CHUCK GRASSLEY,
                 A U.S. SENATOR FROM THE STATE OF IOWA

        Senator Grassley. Thank you, Mr. Chairman. This is a very
    important hearing. I am glad you are having it. And without a
    doubt, extending criminal law to Government contractors and
    employees serving overseas is something that we ought to keep
    on top of.
        It is an important topic given the increased use of
    Government contractors by Federal agencies in overseas
    operations. Particularly it has been highlighted in Afghanistan
    and Iraq, although it would not be limited to those two
    countries. Holding any individual accountable for crime is an
    important part of our Committee's jurisdiction. I think we all
    would agree that anyone who commits a crime should be held
    accountable and that bringing criminals to justice is one of
    the most important roles of our Government. However, extending
    the long arm of American criminal law is an issue that should
    not be done without significant consideration and caution.
        Now, Chairman Leahy and I have worked together in the past
    to ensure that Government contractors are not given a free pass
    to commit crimes or to defraud the Government through resources
    that are entrusted to our country by other Nations because we
    worked together in 2008 on the Wartime Enforcement of Fraud Act
    that would have tolled the statute of limitations on fraud
    offenses that occurred in a war zone. We also worked together
    to amend the False Claims Act to ensure that funds that were
    under the trust and administration of our own Government were
    protected from fraud and abuse. That fix was necessary to
    address a loophole created by the courts in the Custer Battles
    decision where Iraqi funds administered by the U.S. Government
    were subject to fraud. This was a damaging loophole because it
    essentially said that contractors were free to defraud the
    Government as long as the money was from a foreign country that
    entrusted the U.S. Government to administer it. Ultimately, we
    closed that loophole in the Fraud Enforcement and Recovery Act,
    which was signed into law by President Obama.
        Today's hearing is no less important because criminal acts
    committed by U.S. citizens and contractors abroad could
    threaten our foreign relations. As such, it is right for us to
    examine the ways we can bring these criminals within the reach
    of our law. Legislation extending the reach of U.S. criminal
    law to contractors was introduced in the last two Congresses.
    Both times that legislation failed to clear both chambers and
    was never signed into law.
        Chief among the concerns at that time was the lack of clear
    exception for contractors that were employed by the
    intelligence community. In 2007, President Bush issued a
    statement of administration policy citing concerns with
    legislation expanding extraterritorial jurisdiction over
    contractors and citing concerns with the impact on national
    security activities and operations. Similar concerns held up
    legislation in the last Congress.
        I think there is a lot of merit to extending our criminal
    law to civilian contractors and employees abroad. However, we
    must make sure that this is done in a manner that is narrowly
    tailored to specific problems and is not overly broad. Further,
    we must ensure that we do not harm critical national security
    and intelligence operations.
        Those concerns should be addressed in a proper forum and
    not necessarily aired in public. However, in the limited scope
    that we can address that topic in this public forum, I intend
    to ask some questions about what a carve-out for the
    intelligence community would look like. I also want to know
    about how many new resources the Department of Justice will
    require to implement investigations and prosecutions under a
    proposed expansion of extraterritorial jurisdiction.
        Given the current fiscal situation of the Federal
    Government, I am concerned that reallocating resources from one
    side of Justice to another could limit other investigations and
    prosecutions.
        I look forward to the hearing today and, most importantly,
    I look forward to continuing my working relationship with the
    Chairman on this very important topic. And I wanted to inform
    the Chairman that at 11:10 I have an opportunity to speak on
    the floor, so I will probably miss in part or maybe the rest of
    this Committee hearing.
        Chairman Leahy. Thank you. There is a lot of that going on
    today, as you know. I appreciate it. I share your concern about
    resources, but I also share your concerns about how we define
    somebody. I would hate to think we would set up a thing where
    the people who--the gang rape I referred to could say, well,
    part of our duty is to guard some part of the intelligence
    service here and escape a crime like that.
        Senator Grassley. Sure.
        Chairman Leahy. But we can write that.
        Our first witness is Tara Lee, co-chair of DLA Piper's
    global transnational litigation practices focusing on cross-
    border disputes. She has worked extensively in defense and
    Government contract issues abroad, has argued a variety of
    related cases in both State and Federal court. A former
    military lawyer, taught battlefield accountability at the U.S.
    Naval Academy. A member of the International Stability
    Operation Association, served on several committees of the ABA,
    addressing the expansion of the Uniform Code of Military
    Justice and the Military Extraterritorial Jurisdiction Act to
    cover contracts on the battlefield. Received her bachelor's
    degree from the U.S. Naval Academy and her law degree from the
    University of San Diego School of Law.
        Ms. Lee, please go ahead. We will put your full statement
    in the record, but please go ahead.

          STATEMENT OF TARA LEE, PARTNER AND GLOBAL CO-CHAIR,
             TRANSNATIONAL LITIGATION, DLA PIPER LLP (US),
                             WASHINGTON, DC

        Ms. Lee. Thank you, Mr. Chairman.
        Mr. Chairman, Senator Grassley, Senator Franken, other
    distinguished Members of the Committee that are not present, I
    want to thank everyone for the opportunity to appear before you
    today. I know that each of you shares the deep respect and
    appreciation that I feel for the men and women of the defense
    contracting community, and as someone who has served in the
    Navy, been the spouse of an Army soldier, and is now a member
    of the contracting community, I want to thank you all not just
    for the opportunity to speak today but for the work you do for
    each of those communities.
        The issue today--extraterritorial jurisdiction and
    accountability for contractors--is not and should not be a
    partisan issue. I think we all share a commitment to serving
    the national security objectives of the United States and a
    desire for there to be clarity in the accountability mechanisms
    that reach our citizens. When that accountability mechanism is
    focused on those individuals who serve in harm's way on our
    behalf, whether they be uniformed or not, the obligation to
    provide them with clarity is especially strong. I am a Naval
    Academy graduate, a former military lawyer, and a former fellow
    at the Center for the Study of Professional Military Ethics at
    the U.S. Naval Academy, where I studied and taught battlefield
    accountability. In my current legal practice, I both advise
    companies on mitigating their risks and training their
    employees to operate in conflict environments, and I represent
    companies when they face Government investigations and civil or
    criminal litigation. I have also devoted several thousand hours
    of pro bono legal work to the representation of victims of war
    crimes that occurred in Somalia in the 1980s, victims who,
    because no jurisdiction had the capacity or will to take
    criminal action, had no hope of achieving redress other than
    through the civil courts of the United States. Each of these
    experiences contributes to my very broad perspective on the
    importance of clarity in criminal accountability mechanisms.
        I speak today from the perspective of an attorney who
    currently manages a law practice group that specializes in
    representing Government contractors, and I can tell you that in
    my experience the Military Extraterritorial Jurisdiction Act
    standing alone and as currently drafted has not quite provided
    that clarity.
        As you know, the Act has been subject to legal challenge as
    to the breadth of its jurisdiction as it applies on its face
    only to those contractors who are ``employed by or accompanying
    the Armed Forces outside the United States.'' Arguably, MEJA by
    its plain text does not apply to those contractors working for
    the State Department or for Government agencies except and
    unless it can be established that they are supporting the
    mission of the Defense Department.
        Clarity and certainty are as important to the contracting
    community as they are to the Government. Companies have an
    obligation to their employees to properly advise them of the
    legal rights, risks, and accountability mechanisms to which
    they are subject when serving overseas. A continued absence of
    clarity on whether MEJA applies to civilian employees working
    on non-DOD contracts does not serve the interests of the
    contracting community or its employees. For example, a company
    with both DOD and State contracts might, under the current
    statutory framework, accurately advise employees working on its
    Defense contracts that they ``are'' subject to MEJA
    jurisdiction, while advising employees doing similar work in
    the same location but on a State Department contract that they
    ``might be'' subject to MEJA jurisdiction. Neither the statute
    itself nor the limited number of available judicial
    interpretations makes the effective reach of MEJA completely
    clear. Thus, the Civilian Extraterritorial Jurisdiction Act
    that is discussed has the potential to provide more certainty
    regarding the application of U.S. criminal law to overseas
    contractors.
        Not only might CEJA provide more jurisdictional certainty,
    it could also enable the prompt and professional investigation
    of potential criminal incidents. Contractors, as you know,
    often operate in unstable environments where the host nation
    capacities for criminal justice functions are limited or
    developing. Those companies are much better served, in my
    opinion, if adequate U.S. Government resources are available to
    assist with or provide the criminal investigation function.
    CEJA also potentially authorizes the personnel and resources to
    address that need.
        I believe you have received or will receive written
    statements of support from several companies directly, and as
    the Chairman noted this morning, Iggy Balderas, the CEO of
    Triple Canopy and the former command sergeant major of Delta
    Force, has an op-ed in the Huffington Post discussing the need
    for CEJA-type legislation, and he argues very persuasively that
    the absence of effective accountability for contractors puts
    our country's ability to achieve our goals at risk.
        Additionally, CEJA-type legislation also has support from
    the International Stability Operations Association, a trade
    organization representing stability operations contractors, as
    well as from organizations in the human rights community. The
    Commission for Wartime Contracting also recently called for
    clarification in criminal jurisdiction over civilian agency
    contractors. This diverse recognition of the need for an
    appropriately crafted CEJA reflects, I think, the universal
    recognition that accountability for criminal wrongdoers is a
    critical component of securing our Nation's foreign policy
    goals. No one wants to operate in an environment of uncertain
    legal clarity, least of all companies who are already operating
    in often unstable environments.
        Thank you again for the opportunity to discuss this
    important topic with you today, and I do look forward to
    answering any questions that you all might have.
        [The prepared statement of Ms. Lee appears as a submission
    for the record.]
        Chairman Leahy. Well, thank you very much, Ms. Lee.
        I am going to have each one testify, and then we will go to
    the questions. The next person to testify is Geoffrey Corn,
    Associate Professor of Law at South Texas College of Law in
    Houston, Texas, retired Lieutenant Colonel, served with the
    U.S. Army's Judge Advocate General Corps. Prior to his
    retirement, he served as special assistant to the U.S. Army
    Judge Advocate General for Law of War Matters, acting as the
    Army's senior law of war expert. He also served as the chief of
    international law for the U.S. Army-Europe, chief prosecutor
    for the 101st Airborne Division, and a professor of
    international and national security law at the U.S. Army Judge
    Advocate General School. He has been extensively published on
    national security law, criminal procedure, law of armed
    conflict. Professor Corn received his law degree from George
    Washington University School of Law, his LLM from the U.S. Army
    Judge Advocate General School.
        Professor, it is good to have you here and thank you for
    coming. We will put your full statement in the record, but
    please go ahead, sir.

      STATEMENT OF GEOFFREY S. CORN, ASSOCIATE PROFESSOR OF LAW,
    SOUTH TEXAS COLLEGE OF LAW, HOUSTON, TEXAS; LIEUTENANT COLONEL,
                              USA, RETIRED

        Professor Corn. Thank you, Mr. Chairman and Members of the
    Committee, for offering me the opportunity to share my
    perspective of the importance of enacting the Civilian
    Extraterritorial Jurisdiction Act.
        As a soldier and a military staff officer, I was taught to
    express my ``bottom line up front,'' and my bottom line is that
    Congress should enact CEJA because it is in the best interest
    of our national security, our Armed Forces, and potential
    criminal defendants.
        Prior to 1970, trial by court-martial was the primary
    mechanism by which we held accountable civilians accompanying
    the military during operations abroad. However, as a result of
    an opinion by the Court of Military Appeals in 1970, in the
    case of United States v. Averette, that jurisdiction was
    severely restricted when the Court held that it only applied
    during periods of formally declared wars.
        As a result of this opinion, an entire generation of judge
    advocates learned that it was almost inconceivable that
    civilians would ever again be subjected to trial by court-
    martial. But this created a Federal jurisdictional gap, and the
    impunity for civilian misconduct created by this gap became
    apparent as the U.S. military focused increasingly on
    expeditionary operations in the decade following the end of the
    cold war. In response, Congress enacted MEJA, a law that
    reflected a clear preference for Article III criminal trials
    when civilians accompanying the military committed misconduct
    while operating abroad.
        However, the perception of contractor impunity arose during
    operations in Iraq and Afghanistan, and these perceptions were
    in large measure the result of a jurisdictional gap that
    existed in MEJA. Partially in response to this perception,
    Congress in 2006 amended the Uniform Code of Military Justice
    to reverse the opinion of United States v. Averette and
    resurrect military jurisdiction over civilians accompanying the
    Armed Forces in the field during any contingency military
    operation.
        This resurrection of military jurisdiction caught military
    experts by surprise. While the resurrection of military
    jurisdiction over civilians accompanying the Armed Forces is
    likely constitutional, I believe that it does pose some serious
    constitutional questions, most significant of which is whether
    or not it is legitimate to try a U.S. civilian by court-martial
    when that is not a requirement of absolute necessity, when an
    alternate option of Article III jurisdiction is viable.
        Now, this is not to suggest that I believe that a court-
    martial is not a fair tribunal. In fact, I think courts-martial
    are fundamentally fair. But the fact remains that a court-
    martial does not afford the full range of constitutional rights
    to a defendant as are afforded in an Article III criminal
    tribunal.
        It is because of this that I believe it was critically
    important to enact MEJA. However, MEJA was based on an
    assumption that has become increasingly stale: that civilians
    present in areas of military operations will be connected to
    the military by employment or contract. Civilians supporting
    the complex missions of today, although often operating in
    close proximity to the military, are routinely connected to
    other Government agencies.
        CEJA is, therefore, necessary to complement MEJA. Its
    enactment will ensure all civilians present in operational
    areas are subject to Federal civilian criminal jurisdiction.
        CEJA would also provide a means for prosecuting acts of
    serious misconduct committed by civilians associated with U.S.
    Government activities in more mature theaters or areas, not
    necessarily in countries where we have ongoing military
    operations. And I believe the ability to exercise such
    jurisdiction would be beneficial to the United States because
    it would give us the opportunity to leverage the host nation to
    forgo criminal prosecution of American citizens who commit
    serious misconduct and give us the opportunity to prosecute
    them in the United States, which I believe is often in the best
    interests of the Nation and the criminal defendants.
        Ultimately, I can see no good reason not to enact CEJA. I
    believe enhancing the scope of Federal civilian jurisdiction
    over civilians abroad is an important means of limiting resort
    to military jurisdictions to only those situations of genuine
    necessity. MEJA was the first step to achieve this goal; CEJA
    will be the next step. Unless Federal criminal jurisdiction is
    comprehensive, pressure to resort to the broad grant of
    military jurisdiction over civilians resurrected by the 2006
    amendment to the Uniform Code of Military Justice is almost
    inevitable. It is, therefore, in the interests of the Nation,
    the military, and potential civilian defendants to enact CEJA.
        Thank you.
        [The prepared statement of Professor Corn appears as a
    submission for the record.]
        Chairman Leahy. Thank you, Colonel, Professor. I appreciate
    your perspective.
        Our next witness is Michael Edney, Of Counsel at the law
    firm of Gibson, Dunn & Crutcher, where he specializes in
    appellate and constitutional law, criminal and regulatory
    defense, and complex civil litigation. From 2000 to 2009, he
    provided legal advice to the National Security Council and
    senior White House advisers. Prior to his time at the White
    House, Mr. Edney worked in the Department of Justice's Office
    of Legal Counsel. Bachelor's from the University of Notre Dame,
    law degree from the University of Chicago Law School.
        It is good to have you here, sir. Please go ahead.

       STATEMENT OF MICHAEL J. EDNEY, OF COUNSEL, GIBSON, DUNN &
                     CRUTCHER, LLP, WASHINGTON, DC

        Mr. Edney. Thank you, Chairman Leahy, Ranking Member
    Grassley, and distinguished Members of the Committee. I
    appreciate the opportunity to testify on this important
    subject.
        With troops deployed in two foreign theaters of combat,
    holding accountable representatives of the United States who
    engage in serious misconduct abroad is a recurring and complex
    matter. Current Federal criminal law leaves a gap for U.S.
    Government employees and contractors unassociated with the
    Department of Defense. This gap has raised serious foreign
    policy problems and problems with the uniform administration of
    justice. So the Congress and the executive branch have
    struggled with whether and how to fill that gap through at
    least two administrations. That is because it is a difficult
    question and caution is very necessary in addressing it.
    Expanding wide bands of Federal criminal law abroad to
    employees and contractors of all Federal agencies, including
    our intelligence community, could threaten vital national
    security operations if not done with exceptional care.
        I want to make three points, my written testimony aside.
        First, the Congress----
        Chairman Leahy. And your written testimony will be part of
    the record in full.
        Mr. Edney. Thank you, Mr. Chairman.
        First, the Congress historically has been very careful in
    assigning relevant criminal laws' extraterritorial effect, in
    part to protect national security operations. Instead, the
    Congress has extensively studied, often after lengthy
    classified briefings and hearings, the procedures and
    restrictions to be placed on overseas intelligence operations.
    The Congress should continue that practice. Proposed
    legislation addressing the problems such as security contractor
    misconduct abroad ought not have unintended side effects on
    authorized national security activities.
        The solution has been laid out by the Assistant Attorney
    General for the United States, Lanny Breuer, in his forthcoming
    testimony, and I agree with it. Any legislation expanding
    general criminal law abroad should have a strong exception for
    intelligence or other national security operations. Whatever
    additional restrictions should be placed on intelligence
    activities, we should wait for a setting where the Congress is
    exclusively focused on that issue.
        Notably, finding an appropriate intelligence exception was
    the sticking point when this type of legislation came up in the
    110th Congress during the last administration. The current
    administration's position appears no different from the last.
    Creating an appropriate intelligence exception would be an
    important step forward in moving this legislative project.
        Second, ambiguity in criminal laws applicable to our
    intelligence officers should be avoided. Using criminal
    offenses created for what is called the special maritime and
    territorial jurisdiction of the United States creates
    particular concerns in this regard, and this is a common theme
    in legislation that has been designed to solve these problems
    from MEJA to some of the current legislative proposals. This is
    a body of law that Congress created for when the Federal
    Government is the only authority for foreign military bases and
    embassies where there is no U.S. State Government. In a city
    here at home, these are the public order offenses that we would
    expect, but they were never meant for intelligence operations,
    and we have no tradition that would assist us in applying them
    to this new field. The Military Extraterritorial Jurisdiction
    Act avoided this problem by keeping the Uniform Code of
    Military Justice and its long history of governing violent
    armed conflicts as the primary regulator of the military
    itself. There is no such easy solution for the intelligence
    community, which does not have this tradition.
        The result of such potential ambiguity is the chilling of
    intelligence operations and the delay required to obtain
    clarity. Intelligence officers will not and should not have to
    rely on after-the-fact prosecutorial discretion to carry out
    necessary operations. They will seek the opinion of the Justice
    Department in advance. How those legal questions should be
    resolved is not clear, and that process will take time while
    national security operations wait.
        Third, if legislation imposes new criminal restrictions on
    intelligence operations, any cases that follow likely will
    involved classified information. Such cases will place
    additional strain on the Classified Information Procedures Act.
    That Act was enacted in 1980 to prevent graymail in espionage
    cases. Senators on this Committee have proposed changes to
    update CIPA for the last 30 years. The expansion of Federal
    criminal law that CEJA contemplates and CIPA reform have to go
    hand in hand.
        Thank you for the opportunity to testify on this topic
    again, and I look forward to the Committee's questions.
        [The prepared statement of Mr. Edney appears as a
    submission for the record.]
        Chairman Leahy. Well, thank you very much.
        Let me begin. This question I will actually ask to Ms. Lee
    and then to Professor Corn. You talked about the fact that the
    U.S. has more Government contractors working overseas than ever
    before. We know the legal framework is unclear. It is outdated.
    When the military mission in Iraq winds down, and Afghanistan
    for that matter, the American presence there will no longer be
    primarily military or DOD contractors, but we will have
    thousands of civilian contractors and employees, so our
    criminal jurisdiction will no longer extend to these
    contractors and employees.
        Does that military wind-down in Iraq create urgency to pass
    CEJA, Ms. Lee?
        Ms. Lee. Thank you, Mr. Chairman. That is a very valid
    point. It is very timely, and it is one that I can tell you
    that the contractors operating in that environment are very
    attuned to. You know, how is this going to work in the absence
    of the Department of Defense? In what ways should we adjust the
    advice that we give our employees? In what ways do we need to
    be aware that this will change the legal universe in which we
    operate?
        I think the departure of the Department of Defense limits
    the application of any UCMJ good order and discipline type
    authority to the environment and does make it particularly
    important not just for the contractors to understand what
    jurisdiction will apply to them in the absence of the
    Department of Defense, but also for the host country
    perceptions.
        Chairman Leahy. Well, let me ask you on this, you would be
    in all likelihood called upon to advise some of these
    companies. With the passage of a very clear CEJA, would that
    make your job easier to say, okay, these are the bright lines,
    this is what you can do, this is what you cannot do? And I
    realize that is kind of a leading question, but also make it
    easier to tell the host country.
        Ms. Lee. There are two parts of it, and I smiled when you
    asked the question because it does sort of work counter to my
    interests, right? As a lawyer of the defense contractors, if
    statutes are unclear I am in business all day long. That is
    what we do. If you have got some----
        Chairman Leahy. I was thinking that.
        Ms. Lee. Yes. If there is lack of clarity in a statute, I
    stay busy all day. But on behalf of the companies that I
    represent, I think you do have an opportunity to clearly
    articulate your intent here, and that is always a good thing.
        I also think it is a good thing from the host country
    perspective because I think what we have seen is that if there
    is just the perception of a culture of impunity, then that is a
    very dangerous thing for the countries that have to operate in
    that environment, for the military members that have to operate
    in that environment, and for the furtherance of our bigger
    national security objectives.
        Chairman Leahy. Professor Corn, how do you feel about that?
        Professor Corn. Senator, my concern is that although we
    draw down in these missions, the military will still have some
    presence in these locations, and if there is no viable civilian
    criminal jurisdiction for acts of serious misconduct, the
    military may be pushed into the role of becoming the primary
    prosecutorial response to such misconduct, and I think that
    would be unfortunate.
        I am not willing to say that the exercise of military
    jurisdiction over a civilian is per se unconstitutional, but I
    think that it is in the interests of the military and civilian
    defendants to have a jurisdictional scheme that ensures that
    such jurisdiction is exercised only as a measure of true last
    resort.
        I think the other factor that goes into this, which
    dovetails with what Ms. Lee mentioned, is that if we do not
    enact MEJA, there really will be an inconsistency between the
    method of dealing with military misconduct and civilian
    misconduct, unless the military is the primary prosecutorial
    authority. And by that I mean if there is an act of serious
    misconduct in Iraq by a contractor where there is no Federal
    civilian jurisdiction, the military member who commits the same
    misconduct will be tried in an American court--a military court
    but an American court. That civilian may have no option other
    than to be turned over to the host nation authorities for
    prosecution, and that could create a perception of disparate
    treatment.
        I saw this once when I was the legal adviser, the
    international law adviser in Heidelberg, Germany, for U.S.
    Army-Europe with the allegation of a rape by a contractor in
    Bosnia--or it was Kosovo, I think, prior to the implementation
    of MEJA, and the military commander had a very difficult
    dilemma because if we did not allow the local authorities to
    assert jurisdiction, there was no jurisdiction to assert.
        Now, ultimately the case was disposed of because the
    allegation fell apart, but I can remember the debates with the
    commanding general over, ``What am I going to do? If this is
    true, I do not want this person to have impunity for it.'' And
    so having CEJA would create a viable, credible alternative,
    which would be trial in Federal district court.
        Chairman Leahy. Mr. Edney, do you agree or disagree?
        Mr. Edney. I do not disagree with that. I think, Senator,
    as you point out, the more civilian contractors and employees
    we have overseas in these operations and in these difficult
    areas, the more poignantly the gap in current Federal criminal
    law will be raised. The question is: How do we go about filling
    it?
        Chairman Leahy. Well, I understand that. I also, though,
    worry about we also do not want to give blanket immunity. I
    obviously talked about a serious case with Halliburton at the
    beginning of my statement, but I hate to see something like
    that just be ignored. My life was easy, the 8 years I spent as
    a prosecutor. In the United States, when a crime is committed,
    you go and prosecute people you think committed the crime. Here
    you have a real difficulty. How do you approach it? As
    Professor Corn just mentioned, you also have the thing--and Ms.
    Lee has, too--that sometimes in situations where there is going
    to be prosecution, the defendant might much prefer it is going
    to be before an American court with our usual experience. We
    have seen some highly publicized cases abroad where you wonder
    how in heaven's name those are done, even close allies of ours.
    I think of one that has dragged on for a couple of years in
    Italy on a case where a young woman is accused of murder, and
    when her parents pointed out the fact that the prosecutor had
    been involved in ethical misconduct, something that even the
    courts there had said, then the prosecutor wanted to prosecute
    them for defamation. I think I would much rather be having the
    trial here in the United States. But that is my view.
        Senator Grassley.
        Senator Grassley. Mr. Edney, you described how a carve-out
    for intelligence was important. What are the potential pitfalls
    that we face if we pass legislation extending Federal criminal
    law to contractors abroad without a carefully crafted carve-out
    for intelligence and national security?
        Mr. Edney. Thank you, Senator Grassley. One of the problems
    is that it is difficult here and it is, I think, difficult
    period to really account for all the many ways that the
    criminal laws that we draw up for the United States might apply
    to otherwise authorized national security operations. So that
    has to be very carefully studied. That is why the previous
    administration and I believe this one supports leaving those
    questions for another day and finding an intelligence carve-out
    that protects those activities.
        If you had an intelligence carve-out that focused on
    authorized intelligence activities or authorized national
    security operations, you would avoid the situation that
    Chairman Leahy pointed out in his initial statement where a
    security contractor that claims he was protecting somebody in
    the intelligence community but went off the reservation on a
    frolic, and clearly serious misconduct would not be covered by
    that. That is the key. The key is it has to be sufficiently
    simple that the intelligence community continues only to worry
    about the authorities they are currently working under and any
    further authorities or restrictions that this Congress decides
    are warranted in the specific context of regulating the
    intelligence community.
        Senator Grassley. Well, do you have any idea what steps
    should be taken in crafting a carve-out or exemption since it
    has got to be carefully done?
        Mr. Edney. Yes, I think the first issue is that it needs to
    be very simple. If it were to become too specific, it would
    provide points to our adversaries about what is authorized and
    what is not authorized. It needs to focus on current
    authorizations. Also, it needs to have an allowance for the
    reasonable belief of intelligence officials that they are
    engaging in authorized conduct. And, finally, the important key
    is that it be drafted in a way that keeps these potential
    criminal laws off the table because their application to these
    activities, again, is extraordinarily complicated.
        Senator Grassley. You discussed including special maritime
    and territorial jurisdiction of our country as a basis for
    applying criminal law abroad. That statute was designed to
    place the Federal Government in a position of State and local
    governments and cover general crimes when no State and local
    government existed. This approach is similar to the Military
    Extraterritorial Jurisdiction Act utilizing special territorial
    jurisdiction. You mention in your written testimony a concern
    that the use of this special jurisdiction is different for
    civilian contractors as opposed to military members prosecuted
    under MEJA. What is that distinction? And why is it important?
        Mr. Edney. Yes, I think this is an important point that the
    Committee should keep in mind as it turns again to crafting
    legislation in this area because it is tempting to follow the
    Military Extraterritorial Jurisdiction Act model, which looked
    to crimes that would be applicable in the special maritime and
    territorial jurisdiction of the United States. And as a man
    from Nebraska, this would be the type of laws that I would
    expect to govern my activities while I am living in Omaha and
    that would be supplied by the State legislature to keep me
    safe. But their application to intelligence activities--and
    military activities for that matter--are very complicated.
        The way that MEJA dealt with this problem was to maintain
    the primacy of the Uniform Code of Military Justice. That
    happens in 3261(d) of Title 18. It says that if you are subject
    to the UCMJ, it is the UCMJ alone that will govern you. And
    after a long history of dispensing justice to members of the
    military while they are abroad conducting combat operations, we
    have a lot of case law that in a sophisticated manner deals
    with violent combat operations. But we do not have that outlet
    for the intelligence community. There is no substitute that you
    can resort to. So the impulse to look at to the special
    maritime and territorial jurisdiction set of criminal offenses
    would be a difficulty if you are expanding the criminal law
    beyond the Department of Defense to all Federal Government
    agencies, including the intelligence community.
        Senator Grassley. Could I ask one more question?
        Chairman Leahy. Of course.
        Senator Grassley. If Congress failed to include an
    intelligence exemption in the legislation and relied upon the
    prosecutorial discretion of the Justice Department, would that
    have an impact on the intelligence community? For example,
    would they have to ask the Justice Department to provide legal
    opinions? And if the intelligence community became reliant on
    the Justice Department to pre-approve intelligence operations,
    would it have a chilling effect on that community?
        Mr. Edney. I think that you seize on a very important
    point, Senator Grassley. As I mentioned, the application of
    these criminal offenses, as they would be to military
    operations, to intelligence operations, will be very
    complicated. There are a lot of common-law doctrines and
    affirmative defenses such as justification and public authority
    that the Justice Department would have to sort through, and as
    I mentioned in my initial statement, we can expect that the
    intelligence community will turn to the Justice Department
    first to sort that out. That will take time, and it will
    require a pretty significant exercise of discretion. And I
    think what you will see is that it would transfer a lot of
    responsibility about what intelligence operations occur from
    the senior executive branch officials that this Senate
    confirmed to oversee those operations to the Attorney General
    because he will have a very wide legal interpretive task in
    advance before he approves those operations.
        I think we can also expect that the Justice Department will
    not provide general guidance in this area, as they should not.
    These legal inquiries, if many of these Federal criminal laws
    were applied, require very fact-specific issues, and it would
    be kind of a de facto reorganization of the way that we conduct
    the international security operations if the Federal criminal
    laws that we are considering applying to intelligence agencies
    were not selected with great care.
        Senator Grassley. Thank you, Mr. Chairman.
        Chairman Leahy. Thank you very much.
        Senator Franken.
        Senator Franken. Thank you, Mr. Chairman.
        Ms. Lee, it seems pretty obvious to me that we are going to
    be depending on private contractors who work overseas more and
    more--as we pull out of Iraq. They will be tied to the State
    Department, and we have to make sure they are accountable to
    U.S. laws. Unfortunately, the actions of a small number of bad
    actors have tarnished the entire reputation of the contracting
    community, which you represent.
        You said in your testimony that the companies you represent
    would welcome greater certainty and clarity on the application
    of U.S. criminal laws to their employees. I would like you to
    explain this a bit more. You talked about the culture of
    impunity. Now, the Chairman talked about Jamie Leigh Jones and
    KBR and Halliburton. Jamie Leigh Jones was gang-raped by KBR
    employees. What I understood was that this had happened many
    times before, and KBR insisted that she was required to go
    through arbitration.
        Now, KBR is no minor player in contracting. Jamie Leigh
    also formed her own foundation in the 4 years that she was
    trying to fight to get into court, and part of her foundation
    was finding and inviting women who this had happened to but who
    had submitted to mandatory arbitration. She found 40 women who
    had been raped by contractors.
        You heard all kinds of stories of prostitutes being brought
    into these contractors, including prostitutes in the host
    country. Was there a culture of impunity? Is there a culture of
    impunity? I just want to know. KBR is not a small actor. It is
    probably the biggest contractor there is. So I am not terribly
    convinced that this community wants this, but I hope they do.
        Ms. Lee. I can tell you I believe that they do, Senator. I
    want to clarify that I do not represent KBR, never have. And
    when I speak here and talk about certain things, I am, of
    course, speaking with my own personal opinion and not on behalf
    of any individual clients anyway. But I can tell you from my
    experience not just representing the contracting community but
    also as a military prosecutor that even a perception of a
    culture of impunity is, I think, a dangerous thing. And I think
    that is what I referred to when I spoke before, and that is a
    potential host country perception of impunity. And that is why
    the clients that I work with and the trade organizations that
    represent defense contractors that I work with are all in
    support of a measure that would move forward for better, more
    effective accountability across the board, I think because it
    is fair to say that they recognize, much like you have and many
    other Senators and many members of the American public have
    recognized, that it is contrary to the goals of our mission
    overseas to allow even a perception of impunity to persist.
        Senator Franken. KBR was contracting with DOD. As we
    withdraw from Iraq, more and more will be contractors for the
    State Department. We passed an amendment in the DOD
    appropriations that contractors could not exercise their
    mandatory arbitration clause in their employment contracts if
    they were getting paid through DOD. Do you think it would be
    wise in terms of trying to get rid of this culture of impunity
    if we did the same thing for State?
        Ms. Lee. You mean, Senator, specifically for civil
    liability and civil----
        Senator Franken. Yes.
        Ms. Lee. Those kinds of things. I think that is something
    that is within Congress' power to do. I apologize, I am not as
    familiar with that bill, but I think----
        Senator Franken. Well, basically KBR took the position that
    in her contract with them they had a mandatory arbitration
    clause on any complaint about employment. They took the
    position that if she was raped, that was an employment dispute,
    and they had taken that position with evidently 40 other women.
    She fought them.
        Now, my question is: Do you think that it creates a culture
    of impunity and would continue to create a culture of impunity
    if people like Blackwater, or others who are under the employ
    of the State Department, are able to assert these arbitration
    agreements for their employees who come under similar
    circumstances? I am asking you your opinion.
        Ms. Lee. And I am happy to give it. I can tell you as a
    lawyer who practices civil litigation, what I often invite my
    clients, when they ask me, should we have arbitration clauses
    in these agreements--and sometimes these are contracts overseas
    with subcontractors; sometimes these will be arbitration
    clauses that not just in the defense contracting community but
    in other industries in the United States are very common
    aspects of employment contracts. I will tell you my honest
    experience. I tell a lot of the clients that I work for, most
    of them, it is not necessarily a guarantee that the proceedings
    will be cheaper, faster, or easier if they are done by
    arbitration. Arbitration can be just as expensive and just as
    adversarial as litigation.
        When I represented in a criminal justice capacity victims
    who were making rape allegations in Uniform Code of Military
    Justice proceedings, their families would also ask me the same
    thing. You know, what should we do about this? Should we sue
    about this? The confluence of those particular types of
    criminal acts and the way that they are superimposed over civil
    litigation is a really complicated area, and I think it is
    not--I do not mean to not answer you directly, but I think it
    is not pure enough to say that if nobody is allowed to
    arbitrate, that will improve the perception of impunity. I am
    not necessarily sure that it will, because I am involved in a
    lot of arbitrations----
        Senator Franken. I think you do not understand my question
    then, because this is mandatory arbitration. It is not that no
    one is allowed to arbitrate. You can arbitrate if you like. I
    would really appreciate an answer to my question, which is: Do
    you think that the State Department should honor mandatory
    arbitration? I am not talking about whether a woman has a right
    to arbitrate. Of course, a woman would have a right to
    arbitrate. That is not the issue. That is not what I am asking
    you.
        Ms. Lee. And I think I do understand. I think as the
    clauses read, what they are is arbitration in lieu of
    litigation. So I think what your objection to them is that it
    deprives a woman in that position of the ability to fully
    litigate her claim in a Federal district court or in a State
    court instead of going to an arbitration proceeding, and that
    may be an area where you and I disagree as to whether that
    necessarily means that a person going forward in an arbitration
    has given up anything that will be of benefit to them or rights
    to them. Some arbitrations might be structured so that that
    would be a reasonable conclusion. In my experience they are not
    always, and so, you know, if there is----
        Senator Franken. My time is up, but I am not satisfied with
    the answer because ``not always'' is not a satisfactory answer.
        Ms. Lee. Well, I can tell you--and I mean this very
    sincerely--the U.S. litigation process in terms of achieving
    redress for a claim much like Ms. Jones' is entirely also
    likely not to be very satisfactory either. And so I think that
    is all I meant to express, is that I cannot do an either/or for
    you and tell you that one will definitely help improve a
    culture of immunity because I think both have flaws.
        Senator Franken. I think the woman should have a choice.
    Thank you.
        Thank you, Mr. Chairman.
        Chairman Leahy. What I am going to do, I am going to move
    now to Senator Whitehouse and then Senator Blumenthal. I am
    leaving for another hearing. I should note that the issue of
    arbitration, I think what we are saying is we have arbitration
    if it is agreeable to both parties and not imposed on them. But
    I also agree with what Ms. Lee said, that on both civil and
    criminal litigations, the results are not always satisfactory.
    But at least to leave on the table the ability to have both
    criminal and civil litigation I think is necessary. So I thank
    Senator Franken.
        Senator Whitehouse, you are recognized, and I thank the
    members of the panel. This is a difficult thing, and your
    experience is important. I understand, Mr. Edney, you are
    talking about a carve-out. I just do not want to make it such
    that somebody who happens to be guarding the outside of our
    station, our CIA station, might suddenly be able to go off and
    do whatever they want and get that immunity, and I am sure that
    is not what you are suggesting by any means.
        Mr. Edney. No, not at all, Senator. I think there are very
    helpful ways to deal with that particular problem.
        Chairman Leahy. I agree with you. Thank you very much.
        Senator Whitehouse. May I proceed, Chairman?
        Chairman Leahy. Yes.
        Senator Whitehouse. Mr. Edney, your concerns regarding the
    consequences of application of this statute to the intelligence
    community will depend to a significant degree on what the
    offense is at issue, will it not?
        Mr. Edney. Yes, it will, Senator.
        Senator Whitehouse. So, for instance, our intelligence
    community is engaged as a matter of ordinary day-to-day
    business in trying to break into places, steal things, get
    unauthorized access to information, conspire with people to
    divulge secrets to us. That is kind of the nature of the
    intelligence business, to get unauthorized access to
    information, and so something like that, which is actually not
    covered by this bill, as I understand it, would be a really
    significant impediment into our intelligence functions. But as
    best I can tell, there is no legitimate intelligence function
    that involves rape.
        Mr. Edney. No, I think that you are right about that,
    Senator. I simply cannot think of one, although I will say that
    the proposed legislation is broader than that.
        Senator Whitehouse. No, but that is what I say, you need to
    start to distinguish among different offenses.
        Mr. Edney. That is exactly right.
        Senator Whitehouse. And you would concede that as to rape
    the interests of the intelligence community are nil.
        Mr. Edney. I cannot think of any.
        Senator Whitehouse. And as to murder, pretty much also nil,
    correct?
        Mr. Edney. Well, that is--I do not know that--I do not know
    that there is a productive way to talk about this, but I think
    that there are lots of complicated questions raised by lots of
    criminal statutes, some of which are included in the proposed
    legislation from last session.
        Senator Whitehouse. But we should be distinguishing between
    them because different statutes, different crimes will have
    different impacts, and at least as to rape you can agree that
    the impact there is nil.
        Mr. Edney. Yes, and as you point out, you know, this is an
    important point. I mean, there are actually laws that apply to
    the intelligence community, and one of them is the War Crimes
    Act, which Congress amended in 2006 to address concerns that
    the Congress had, and various types of sexual conduct beyond
    rape are already prohibited by applicable Federal law, and that
    is for everybody.
        Senator Whitehouse. Yes. Even overseas.
        Mr. Edney. Yes. As a matter of fact, especially overseas.
        Senator Whitehouse. So to the extent that there is an
    overlay between what is already prohibited by those statutes
    and what would be prohibited by this law, again, the net effect
    is nil in terms of a deterrent on intelligence colleagues.
        Mr. Edney. I would not raise any yellow flag about
    restating current Federal applicable criminal law that is
    already applicable to the intelligence community. That is
    exactly right. And this Committee, as well as other committees,
    spent a fair amount of time figuring out exactly what those
    rules are going to be in the specific context of national
    security operations. That is exactly the type of process that I
    think needs to happen and should be the practice of the
    Congress going forward.
        Senator Whitehouse. And while I think we will all concede
    that there could be some either deterrent effect or some delay
    while legal issues get sorted through in terms of a potential
    subset of intelligence activities as a result of this statute,
    are there not also potentially significant national security
    consequences from the culture of impunity that has been
    referred to from the degradation of America's standing in the
    host country from criminal acts that take place from the
    diplomatic consequences of that, from the failures of either
    military or intelligence cooperation that might ensue from
    that, so there are costs on both sides of this equation, are
    there not?
        Mr. Edney. There absolutely are costs on both sides. An
    example of that is----
        Senator Whitehouse. National security costs.
        Mr. Edney. National security and foreign policy costs. An
    example of that was when this country was trying to negotiate
    the 2008 Status of Forces Agreement with the Government of
    Iraq, we were not able to achieve the immunity that we
    traditionally would like from the Iraqi criminal justice system
    because of some of the shortcomings in our laws. That at least
    was a factor, and that is a foreign policy consequence. The way
    to thread it is to keep these intelligence operations out and
    focus on the problems that this Committee has identified with
    security contractors and others that have nothing to do with
    authorized intelligence operations, and a carve-out can leave
    what rules apply to the intelligence community when they are
    carrying out their work for another day in a setting where----
        Senator Whitehouse. So your carve-out----
        Mr. Edney [continuing]. The implications can be fully
    discussed.
        Senator Whitehouse. Your carve-out, your proposed carve-out
    for the intelligence community would be limited to sanctioned
    and approved intelligence activities. So if an agency
    operative, an intelligence operative, were engaged in something
    that had not been specifically directed through the chain of
    command as an approved intelligence activity, that would be a
    different matter. That would not be part of your carve-out.
        Mr. Edney. Well, I mean, look, what is in the carve-out is
    a very complicated matter, and I could tell you from the last
    administration----
        Senator Whitehouse. But it would be authorized things, not
    unauthorized things.
        Mr. Edney. I think that focusing on authorized matters or
    matters that intelligence operators reasonably believe are
    authorized so they do not get caught up on technicalities would
    be a very productive way to start and would address the issue
    of frolic, detour, and clearly unauthorized conduct that
    Senator Leahy referred to in his opening remarks. I think that
    is a productive place to start.
        Now, I am 2 years removed from----
        Senator Whitehouse. We should leave it there because my
    time has expired, and I am now encroaching on Senator
    Blumenthal's time, so thank you very much.
        Mr. Edney. Absolutely. Thank you, Senator.
        Senator Franken [presiding]. Senator Blumenthal.
        Senator Blumenthal. Thank you, Mr. Chairman, and thank you
    to the members of this panel for being here today.
        Professor Corn, reading your law review article, I was
    struck by your observation--and I think there is a lot of
    agreement with it--that essentially the Military
    Extraterritorial Jurisdiction Act has been largely ineffective.
    And, in fact, you observe in one of the footnotes that there
    have been virtually no prosecutions during the Iraqi era. And I
    wonder if you could expand on the reasons that you see for that
    lack of activity under this law, whether it is weaknesses in
    the law or purposeful decisions in the exercise of discretion
    that we just should not prosecute for whatever reasons relating
    to intelligence or national security.
        Professor Corn. Well, first off, I should note that the law
    review is a couple of years old, so I think there has been good
    movement on the implement of MEJA.
        As I said in my opening statement and in the statement for
    the record, I think MEJA was a critically important statute to
    enact, but I think there was a period of time where we had to
    ease into its implementation. So I think there have been two
    challenges with MEJA. One has been that it has been limited in
    its jurisdiction. That is the challenge that CEJA is motivated
    to respond to, to close that jurisdictional gap.
        The other is implementation. Any law has to be implemented,
    and MEJA was a complex law to implement because it touched on
    the interests of both the Department of Justice and the
    Department of Defense. And there was a period of time when the
    two agencies were working on an implementing regulation that
    finally emerged. And that is why when I was in Germany in 2001
    MEJA was not yet really a viable response mechanism to this act
    of civilian misconduct.
        My understanding is that the Department of Justice has
    moved substantially in a positive direction--and I will leave
    that to the Justice representative--in implementing MEJA. I
    think personally that whether we are operating under MEJA or if
    you enact CEJA, one of the important aspects of implementation
    is ownership. I will go back to, again, my military training
    and the importance of unity of effort. MEJA has a split
    interest and, therefore, you had the military responsible to
    initiate the case but a U.S. Attorney in the United States
    responsible to bring the case to trial and bring it to
    fruition. And I think there are creative ways that that could
    be streamlined, but, you know, as I understand it, again, much
    of that has been improved.
        I would also note that I think MEJA has been important to
    reach an issue that was not the primary objective but has been
    an important issue, which is to address servicemember
    misconduct that is discovered after the servicemember is
    separated from the Armed Forces, what I call the infamous
    Specialist Medlow case. Medlow was one of the participants in
    the My Lai massacre who went on ``60 Minutes'' and admitted
    everything, and there was no jurisdiction to try him. MEJA
    closes that gap, and there have been very significant
    prosecutions, one in the Western District of Kentucky for a
    soldier who was involved in a brutal rape and murder of an
    Iraqi teenager and then separated from the military before we
    found out about it.
        So I am a huge fan of MEJA, and I think as we grow into
    MEJA, the implementation process will become more mature and
    more regular, and that is a very positive thing. But I think if
    CEJA is enacted, that is an issue that is going to have to be
    addressed because now it is going to create bifurcated
    interests between State and Justice or Department of Energy and
    Justice. So there really has to be unity of effort from the
    beginning to the end of the criminal investigation and
    prosecution process. And if there is one great strength of the
    UCMJ approach, that is it. The military initiates the
    investigation, assigns the prosecutor, prosecutes the case, et
    cetera, et cetera.
        I think it can be done under MEJA or CEJA, but it just
    takes a little bit of coordination.
        Senator Blumenthal. For that unity of purpose, shouldn't
    there be a central prosecuting authority? In other words,
    perhaps these decisions ought to be elevated to the level of
    the Attorney General rather than have United States Attorneys
    responsible for them.
        Professor Corn. Well, again, I think I am little bit
    outside of my area of expertise. I think--and, again, I will
    leave it to the Justice representative. I think that there is
    something akin to that beginning now with the Department of
    Justice creating a team of prosecutors that focus on MEJA
    cases. So even if we prosecute the case in the Eastern District
    of Texas or, you know, the Western District of Washington, the
    Department of Justice can detail one of these special
    prosecutors to the case to assist with the prosecution, which I
    think is an ideal method.
        One of the suggestions I think I made in the article was
    even within MEJA perhaps you could assign judge advocates as
    Special Assistant U.S. Attorneys. We do that for civil cases,
    environmental cases, labor cases that arise in a military
    installation. And, you know, the military has very fine
    attorneys and very experienced prosecutors who could
    periodically be detailed to work in this special team if it
    would facilitate the effectiveness of the ultimate objective.
    But I think the Department of Justice has started that process
    already.
        Senator Blumenthal. Thank you very much.
        Thank you.
        Senator Franken. Thank you, Senator Blumenthal, and I want
    to thank these witnesses for their testimony. Thank you all.
        We will now move on to our second panel. I would like to
    welcome a frequent guest of this Committee, Lanny Breuer.
        Senator Whitehouse. Mr. Chairman?
        Senator Franken. Yes?
        Senator Whitehouse. While we are waiting for the witness to
    come to the table, I wanted to mention that I think one of the
    reasons that this hearing is so important is the size of our
    contractor footprint overseas. I do not know if that has been
    discussed already, but the last time that I was in Iraq, last
    year, our contractor population was far greater than our
    military population and our civilian population combined. I do
    not have the numbers off the top of my head, but I want to say
    it was 2 or 3 times as great in terms of contractors compared
    to civilian government employees and uniformed military. So it
    is a really big piece of what the host country sees out of our
    American presence there.
        Senator Blumenthal. And will increase, Mr. Chairman, even
    further under the strategy that has been outlined by the United
    States. So I think Senator Whitehouse's remarks are very apt.
        Senator Franken. Very, very good point.
        I would like to welcome Lanny Breuer. Lanny Breuer is the
    Assistant Attorney General for the Criminal Division of the
    United States Department of Justice. Mr. Breuer started his
    career as an Assistant District Attorney in New York City where
    he prosecuted offenses ranging from violent crime to white-
    collar crime. He later joined Covington & Burling, LLP, where
    he served as co-chair of the white-collar defense and
    investigations group. Mr. Breuer served as Special Counsel to
    President Clinton from 1997 to 1999, an eventful period. Mr.
    Breuer received his undergraduate degree from Columbia
    University and his law degree from Columbia Law School.
        Thank you for testifying, and go ahead.

              STATEMENT OF THE HONORABLE LANNY A. BREUER,
             ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,
               U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

        Mr. Breuer. Thank you, Mr. Chairman and distinguished
    Members of the Committee. Thank you for inviting me to speak
    with you today about the proposed Civilian Extraterritorial
    Jurisdiction Act, or CEJA.
        I am honored to appear before you on behalf of the
    Department of Justice, where, as you mentioned, I am privileged
    to lead the Criminal Division's nearly 600 lawyers in enforcing
    the criminal laws. Together with the Nation's 94 U.S.
    Attorneys' Offices, the Division's Human Rights and Special
    Prosecutions Section, HRSP, investigates and prosecutes
    individuals under the existing Military Extraterritorial
    Jurisdiction Act, or MEJA, for crimes those individuals commit
    overseas.
        Our commitment to bringing prosecutions under MEJA is
    evidenced by our record. Since MEJA was enacted, the Justice
    Department has used it to prosecute numerous Department of
    Defense employees, contractors, or individuals accompanying
    them overseas who have committed serious crimes. In United
    States v. Steven Green--and I noticed that the witness right
    before me alluded to that case--for example, we convicted a
    former Army soldier for the brutal rape and killing of a 14-
    year-old Iraqi girl and the murders of three of her family
    members while the soldier was on active duty in Iraq. In United
    States v. Rico Williams, the Department convicted a former Air
    Force senior airman for a gang initiation beating that ended in
    the death of an Army sergeant in Germany. And just this year,
    in United States v. Christopher Drotleff, we convicted two
    Department of Defense contractors for involuntary manslaughter
    of a civilian in Afghanistan.
        In addition, we have also been able to prosecute
    individuals for acts committed abroad when MEJA does not apply,
    in particular, if the conduct occurs within the special
    maritime and territorial jurisdiction of the United States or
    falls under a Federal criminal statute with extraterritorial
    application. We successfully prosecuted, for example, former
    CIA official Andrew Warren for committing abusive sexual
    contact while on U.S. Embassy property in Algiers, Algeria.
        Although we have accomplished a great deal using our
    existing laws, MEJA leaves significant gaps in our enforcement
    capability. The criminal statutes with clear extraterritorial
    application make up only a subset of the Federal criminal laws,
    and the special maritime and extraterritorial jurisdiction of
    the United States is limited. Consequently, a U.S. Government
    employee who rapes a foreign national in the employee's
    diplomatic residence may be prosecuted for his crime, while the
    very same person might not be able to be prosecuted if he
    commits the exact same crime in the victim's apartment.
        Additionally, MEJA applies only when the defendant's
    employment relates to supporting the mission of the Department
    of Defense overseas. Therefore, a civilian Government
    contractor whose employment is unrelated to the mission of the
    Department of Defense but is related to another agency's
    mission cannot currently be prosecuted under MEJA, even if he
    or she clearly committed a serious crime.
        Moreover, whether any particular defendant falls within the
    scope of MEJA depends upon highly specific facts and
    circumstances relating to his or her employment, and the
    statutory language has proved in those cases very difficult to
    apply.
        The proposed CEJA legislation would address these gaps by
    extending U.S. jurisdiction to all non-Department of Defense
    employees and contractors and those who accompany them who
    commit crimes overseas. We believe this legislation is
    critically important. In addition to permitting us to prosecute
    U.S. Government employees who are currently beyond our reach,
    the legislation would also show our international partners that
    we take seriously the conduct of U.S. Government employees
    within their borders.
        Mr. Chairman, we are pleased that you are introducing and
    this Committee is introducing new legislation to close the gaps
    in the law. We fully support the goal of passing a robust and
    comprehensive CEJA statute that provides clear and unambiguous
    jurisdiction to prosecute non-Department of Defense personnel
    for their overseas misconduct without curtailing lawfully
    authorized intelligence activities.
        We look forward to continuing to work with the Committee on
    such legislation. Thank you for the opportunity to appear
    before you today, and, of course, I would be pleased to take
    any questions you may have.
        [The prepared statement of Mr. Breuer appears as a
    submission for the record.]
        Senator Franken. Thank you. Thank you, Mr. Breuer.
        Mr. Breuer, you suggest in your testimony that CEJA closes
    a large gap in the law and would make it much easier for the
    Department of Justice to prosecute egregious criminal acts
    committed by all U.S. contractors, regardless of the agency
    that they work for and regardless of whether the crime was
    committed on a military base or elsewhere overseas. But I am
    struggling to get my head around how large a gap in the law we
    are talking about.
        How many cases has the Department investigated or issued
    indictments on that ended up being dropped because of
    jurisdictional problems? Are we talking about 10 or 20 or 30 or
    more than 100 cases in the last several years?
        Mr. Breuer. Mr. Chairman, I think we have brought probably
    around 50 or so cases that have been indicted and that we have
    pursued. I think the real challenge is twofold:
        One, I think there are an enormous number of cases or there
    are probably a good number of cases that are not referred,
    because from the very start those who hear about the underlying
    conduct cannot find any kind of Department of Defense nexus.
    And so I suspect that we just do not hear about them in the
    first instance.
        And the second very troubling issue is in each of the cases
    where we have gone after some contractor who is not directly
    working for the Department of Defense, we can spend literally
    thousands of hours on one case trying to establish that nexus.
    So instead of investigating the underlying criminality, we have
    to investigate--and these are very difficult cases--that
    contractor's nexus to the mission of the Department of Defense.
    That becomes very burdensome and takes a lot of our resources
    away. And that is what we hope CEJA will completely eliminate.
        Senator Franken. Thank you. When it was first reported back
    in 2007 that Blackwater security guards allegedly shot and
    killed a number of Iraqi civilians--the number is somewhere in
    the teens--in Baghdad's Nisour Square, it seemed like it would
    only be a matter of time before those guards were tried and
    convicted. I realize the Department has been hard at work on
    this case for quite some time, and I want to ask you about some
    of the jurisdictional hurdles that you encountered. We are
    preparing to massively increase our reliance on State
    Department contractors, as Senator Blumenthal was referring to,
    as we continue to draw down our forces in Iraq.
        Given your experience with Nisour Square and similar cases,
    can you explain how it can be difficult to establish
    jurisdiction under MEJA, how CEJA might make it better, and
    relate that to Nisour?
        Mr. Breuer. Absolutely. Let me be careful about Nisour
    Square. It is under active litigation. We just won in front of
    the court of appeals on an unrelated issue, and so now it is
    before Judge Urbina here in the district court again. There it
    was on an unrelated issue, and so I just wanted to be careful.
    But there is no question even in that case we will be
    litigating the nexus between those contractors and their
    mission with the Department of Defense.
        Just taking a step back, because we have to relate it to
    the Department of Defense mission. In any case that we bring
    with a contractor the first thing that the defense is going to
    do is say, ``Look, we were a contractor for the State
    Department,'' or ``We were a contractor for the Department of
    Agriculture. We do not have the sufficient nexus to the
    Department of Defense.'' That becomes an incredibly fact-
    specific inquiry, and it also becomes a very burdensome inquiry
    in looking at all of the aspects of the underlying contract.
    And when you assume these cases are halfway around the world,
    we have to bring our investigators over there. We have to find
    out what your specific role was. This becomes a very difficult
    issue to then describe to a district court judge in the United
    States. And, frankly, I think at least half of our time, if not
    more, is spent on that very issue.
        Senator Franken. As I understand it, part of this
    legislation is to have investigators in place, right?
        Mr. Breuer. Well, I mean, with respect to that, I think we
    would like to have as much flexibility as we can. But, yes, we
    will have investigators abroad, and we will have investigators
    here who we will bring abroad. But if we do not have to
    litigate the issue of the nexus to the Department, because it
    is enough that you committed a crime and you were a contractor
    for the Department of Agriculture, then we are more than
    halfway where we need to be.
        Senator Franken. Thank you.
        Senator Blumenthal.
        Senator Blumenthal. Thank you, Senator Franken. Thank you,
    Mr. Chairman. You may have heard some of the remarks as you
    were coming to the table from me and Senator Whitehouse about
    the importance of this issue in light of the fact that the
    United States is withdrawing its military forces from Iraq and,
    in effect, substituting a civilian force, whether it is
    characterized as military or not. And so the importance of this
    issue will only increase, and I think your testimony is very,
    very important in support of these proposed changes, and I want
    to thank you for that and also for your service to the Nation
    and to the Department of Justice now.
        I wonder to what extent the barriers here related to
    confidentiality, security, intelligence, especially in light of
    what the U.S. Supreme Court basically had to say on this issue
    just in the past few days.
        Mr. Breuer. Sure. Well, Senator, that is a great point.
    First, let me begin by saying I absolutely agree with you that
    with the drawdown this will only become that much more
    important because of the role of civilians. But right now,
    without CEJA, Senator, even in cases where we try to establish
    this military nexus, we often actually face the issue that
    whatever program the contractor may have been involved in is
    classified. And so we have the very difficult balance with
    maybe some other aspects of the Government in determining how
    much are we willing to reveal about the classified program. And
    even CIPA, the procedure that the courts have for this, may not
    be sufficient.
        So what CEJA will do is it will eliminate all of that. We
    will never have to go into the classified aspect of the
    undertaking, and that is why we think so strongly this will
    make a very, very big difference.
        Senator Blumenthal. And in terms of contractor
    responsibility, just thinking about the civilian liability of a
    contractor, to what extent does it now and should it extend to
    the conduct of employees? In other words, where there are
    criminal acts, where there are other kinds of misconduct, the
    focus is on the individual who works for the contractor, for
    example, in the case of a rape. But should the contractor
    itself be responsible for the criteria it uses to hire people,
    train them, and so forth, supervise that kind of activity?
        Mr. Breuer. Well, Senator, I guess my view on that would be
    that the same principles of corporate criminal liability that
    apply in other contexts I would think should apply here. We
    hold in all kinds of contexts companies responsible for the
    criminal acts of their employees. It is very fact specific. But
    just the other day in a totally other area, in the FCPA, we
    convicted the first company ever in that context because of the
    conduct of its employees. So it would be fact specific. I think
    we would want to look at how high level the conduct was. But,
    absolutely, it should apply as it does, I think, in other
    settings.
        Senator Blumenthal. And in making these decisions and
    others, is the top level, such as yourself, the Attorney
    General of the United States, increasingly involved in making
    these prosecutorial decisions because they involve such
    important discretion--as all prosecutorial decisions do, but
    especially so since the national interest and national security
    are involved?
        Mr. Breuer. Absolutely, Senator. It absolutely gets our
    attention. Under my tenure I am proud with the help and support
    of the Congress we combined two sections to create the Human
    Rights and Special Prosecution Section, HRSP, and we did it
    because of our commitment in this area. It absolutely gets my
    attention and, as appropriate, the Attorney General's as well.
        Senator Blumenthal. Thank you very much.
        Mr. Breuer. Thank you.
        Senator Blumenthal. Thank you.
        Senator Franken. Thank you, Senator Blumenthal.
        Senator Whitehouse.
        Senator Whitehouse. Thank you, Chairman.
        Mr. Breuer, does the Department have a position on Mr.
    Edney's recommendation that there should be a carve-out for
    intelligence activities? And, more specifically, should that
    carve-out include the crime of rape? Can you identify any
    situation in which rape is an approved intelligence activity?
        Mr. Breuer. No, Senator, I cannot, so rape is off the
    table. We do think that there should be an intelligence carve-
    out. We think that authorized intelligence activity has to be
    permitted to continue, and we do not want our intelligence
    community feeling as if they are being second-guessed. So we do
    think there is an appropriate role for the carve-out, but rape
    absolutely cannot and would not be a part of that. And, indeed,
    we will continue to pursue unauthorized activity. If anything,
    the carve-out makes it that much clearer, the lanes are that
    much more clear as to what we will pursue, and we will
    absolutely pursue unauthorized activity.
        Senator Whitehouse. And the focus on authorization allows
    the intelligence agency or agencies itself themselves to make
    it very clear internally how to provide the necessary legal
    protection for those authorized activities. That does not
    require other agencies to get involved. They can take care of
    their own in that sense by being clear about what is
    authorized.
        Mr. Breuer. I think that is right. I think also, as we
    know, there is a body of law with respect to what is
    authorized. Congress has a fair bit to say about that. But I
    think we do owe it to the intelligence community to give them
    clear directions, so when they are serving the American people
    that they do not have to feel that they are being second-
    guessed, as long as they are working on conduct that is
    authorized.
        Senator Whitehouse. In your organization's experience
    dealing with these types of situations, are there
    considerations that we should be alert to that depend on
    whether the victim is an American or a host country national?
    Is that a distinction that pertains in any dimension here that
    we should be paying attention to? Or is that irrelevant?
        Mr. Breuer. So I need to think about that more. I have not
    made that in my own thinking particularly relevant. My view is
    if you are abroad and you are a contractor and you are working
    for us, you should be held liable if you commit a crime.
        I will say, of course, if you are a foreign national and
    you have been living in the host country irrespective of the
    contract and you have just been living there for a long time,
    then we would not have jurisdiction for you because you would
    be there. But if you are working for a country, you are in the
    host country because of the work you are doing for the
    Government, and you commit a crime--and I would say--the one
    thing I would say about this is we do think that we should
    limit CEJA to serious crimes. I think we want to be thoughtful
    about how we are using our resources. But with respect to
    serious crimes, I cannot see much of a reason why we have to
    distinguish your nationality.
        Senator Whitehouse. Are there additional resources that
    would be required for crimes against a host country national in
    order to permit the host country national themselves as the
    victim or, if not a surviving victim, their family to
    participate in the supports that we provide to victims'
    families in the American criminal justice system?
        Mr. Breuer. I think that that is the case, Senator. What we
    have found in all of the cases we have--we prosecute human
    rights violators around the world. We deal with these
    extraterritorial jurisdiction matters. There is just no
    question that our commitment is very strong, but that these are
    resource-intensive matters. Getting our witnesses, supporting
    the victims, all of this is exponentially harder, because we
    are doing these things across the globe, often. But we are
    committed to doing it, and we do it, and our lawyers at HRSP
    and the lawyers in the U.S. Attorneys' Offices are doing an
    excellent job despite the challenges.
        Senator Whitehouse. Very good. Thank you very much.
        Thank you, Chairman.
        Senator Franken. Thank you, Senator Whitehouse.
        Senator Blumenthal, do you have any other questions?
        Senator Blumenthal. I have just one question. We do not
    have any of our Republican colleagues here today, but I can
    anticipate that one of the issues that may be raised is that
    this kind of proposal, CEJA, would ``discourage'' or ``deter''
    contractors from wanting to be involved in doing business and
    working for the United States.
        You are not in the business of contracting, but I wonder if
    you could address that issue on behalf of the Department.
        Mr. Breuer. Of course. I would hope that is not the case,
    Senator. I would hope that our contractors are wanting to
    serve, because they want to fulfill their contracts in service
    of the work for the United States. All we are saying here is
    that if you are a contractor for the United States and you
    commit a serious crime in the host country, wherever you are,
    we need a way to reach you, and that is very important.
        I should clarify one point. If you are a citizen of the
    host country and you are working for us, CEJA would not apply
    to you. We would rely on the host country. But I cannot imagine
    that fair-minded people think that this will be a deterrent to
    working for a contractor.
        Senator Blumenthal. I would agree. Thank you very much.
        Mr. Breuer. Thank you.
        Senator Franken. Thank you, Senator Blumenthal.
        Mr. Breuer, I want to thank you and the other witnesses for
    coming here today to talk about this very important issue, and
    I look forward to supporting Senator Leahy in marking up CEJA
    and getting it to a vote on the Senate floor as soon as
    possible.
        I also want to take this moment to thank Senator Grassley
    for working with me on a GAO request I am planning to file
    later today related to contractors who have been convicted or
    found liable for procurement fraud and other misconduct. Mr.
    Breuer, you may recall that I asked you a number of questions
    related to suspension and debarment back in January, and I also
    pressed Attorney General Holder on those issues when he was
    before the Committee earlier this month. I am very concerned
    that U.S. taxpayer dollars are being funneled to contractors
    who have repeatedly been shown to have been irresponsible or,
    even worse, have been convicted of serious criminal acts. GAO
    needs to take a comprehensive look at how Federal agencies are
    investigating and, when appropriate, suspending and debarring
    contractors that we know cannot be trusted.
        The Department of Defense often gets criticized for this
    issue, but it is not just them. As we have mentioned, we are
    going to be pouring more and more money into the pockets of
    private contractors who protect State Department personnel in
    Iraq, and we need to know that those dollars are not going to
    contractors who pay bribes to foreign officials or perpetrate
    other frauds on the U.S. Government.
        I will add our request to the GAO to the hearing record.
        [The information referred to appears as a submission for
    the record.]
        Senator Franken. We will keep the record open for the next
    week for any additional questions or statements by other
    Senators.
        Thank you again for your time today. This meeting stands
    adjourned.
        Mr. Breuer. Thank you, Mr. Chairman.
        Senator Franken. Thank you.
        [Whereupon, at 11:36 a.m., the Committee was adjourned.]
        [Additional material submitted for the record follows.]

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