[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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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
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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
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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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