[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

                              ----------                              

                        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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              Additional Material Submitted for the Record

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