No Comment — April 4, 2008, 9:14 am

In the Face of Justice Department Inaction, the Pentagon Moves Ahead on Contractor Accountability

Today, The Nation’s Karen Houppert reports on a gruesome rape case out of Iraq. The victim is a young American woman given the pseudonym “Lisa Smith.”

It was an early January morning in 2008 when 42-year-old Lisa Smith, a paramedic for a defense contractor in southern Iraq, woke up to find her entire room shaking. The shipping container that served as her living quarters was reverberating from nearby rocket attacks, and she was jolted awake to discover an awful reality. “Right then my whole life was turned upside down,” she says. . .

That dawn, naked, covered in blood and feces, bleeding from her anus, she found a US soldier she did not know lying naked in the bed next to her: his gun lay on the floor beside the bed, she could not rouse him and all she could remember of the night before was screaming and screaming as the soldier anally penetrated her while a colleague who worked for defense contractor KBR held her hand–but instead of helping her, as she had hoped, he jammed his penis in her mouth.

Over the next few weeks Smith would be told to keep quiet about the incident by a KBR supervisor. The camp’s military liaison officer also told her not to speak about what had happened, she says. And she would follow these instructions. “Because then, all of a sudden, if you’ve done exactly what you’ve been instructed not to do–tell somebody–then you’re in danger,” Smith says. . .

Over the next month and a half, she says, she faced a series of hurdles. She would be discouraged from reporting the incident by several KBR employees, she says. She would be confused by the lack of any written medical protocol for sexual assault (as the only medical person on site, she treated herself with doxycycline). She would wander through a tangled maze of interviews with KBR and Army investigators about the incident without any clear explanation of her rights. She would be asked to sign several documents agreeing not to publicly discuss the incident, she says. She describes having her computer–which she saw as her lifeline, her main access to the outside world–confiscated by KBR staff as “evidence” within hours of receiving her first e-mail from a stateside lawyer she had reached out to for help.

The story tracks one that Americans already know well, that of another young woman from Houston, Jamie Leigh Jones. In fact Ms. Jones recently told me that more than forty women had approached her to describe similar treatment within the contractor community in Iraq.

Of course, sex crimes in the workplace do happen, and employers are very frequently concerned about being drawn into a criminal investigation. The really astonishing thing about this case, the Jones case, and scores of others like them is the attitude of the U.S. Department of Justice: it is one of official indifference to crime involving American contractors–even when American contractors are the victims. When pressed to explain its inaction, Justice Department spokesmen typically respond with complete silence, or they mutter semicoherent gibberish about “inadequate resources” and “legal complexities.”

But the Justice Department commands massive resources and how it chooses to allocate them is in the hands of the Department’s political overlords. And their attitudes can be wonderfully exemplified by the fifty-plus agents assigned to assist in the raid of a Michigan law office under suspicion of violating campaign finance rules in raising money for a Democratic presidential contender. One of the FBI agents involved, shaking his head, says he was recalled from important field work in Iraq for the political caper. Or by assignment of a large crew of agents to stake out the Mayflower Hotel to cover a Valentine’s Day tryst involving Democratic Governor Eliot Spitzer. At the same time that resources were being lavished on a politically-inspired effort to show that Spitzer used prostitutes and to shake-up the Albany statehouse, the Justice Department apparently concluded it wasn’t really interested in looking into the rape and mistreatment of Lisa Smith.

Congress has been studying this question for more than a year and a strong bi-partisan consensus has emerged to the effect that a fix is needed. Legislation was put forward by North Carolina’s David Price in the House and Barack Obama in the Senate, but critical support came from Republicans such as Houston’s Jack Poe, Connecticut’s Chris Shays, and South Carolina’s Lindsey Graham. The Justice Department has, however, refused to be budged. When Congress convened hearings on the Jones case, pushed forward at the request of the Judiciary Committee Republicans, the Justice Department refused to send a representative to account for its inaction or failure to address contractor-related criminality in Iraq generally. Its attitude seems to be that this is all some bad dream that should simply go away.

But that attitude of official disinterest on the part of Justice officials is driving the Department of Defense to action. Over the eighteen months that I have been tracking this issue, attitudes within the Office of Secretary of Defense have changed drastically. At the outset, still under Donald Rumsfeld, the posture was one of denial that anything was amiss. Following the arrival of Robert Gates, the issue has been carefully reassessed. Field commanders have repeatedly expressed their view that contractor accountability issues are undermining their mission, including the counterinsurgency mission in Iraq. In light of the accountability vacuum created and the fact that the Justice Department has gone AWOL, use of court-martial authority has been advocated.

On March 10, Secretary Gates issued a memorandum with attachments revising the Defense Department’s policy on charging contractors under the UCMJ. As I note in Private Security Contractors at War,(PDF – 4 MB) there are serious legal issues surrounding court-martialing contractors, nevertheless, there are circumstances in which it is merited, appropriate and fully authorized in wartime. The Gates memorandum is an effort to define what those circumstances are.

The Pentagon has gotten this entirely right. The Gates memorandum clearly identifies the proper circumstances for the use of court-martial authority and sets the right trigger mechanisms. In general, it establishes that civilian contractors may be court-martialed when no other basis for federal criminal jurisdiction exists or the Justice Department fails to act (as it now does, in all cases), and the Defense Department has a compelling interest in the prosecution. This would be the case when contractor conduct seriously undermines military discipline and morale or damages a vital mission.

The Gates memorandum establishes a very high level of authority for such court-martials, retaining ultimate decision-making in the office of the Secretary of Defense and delegating authority to regional commanders. Given the legal policy complexities, this was a wise choice.

On March 27, the military community took the first steps in what might evolve into an important test of the use of military justice against civilian contractors. A brawl occurred involving two civilian contractors at the Radwamiyah Palace Complex in Iraq. According to the charge sheet, a Canadian contractor named Alaa Mohammed Ali, brandishing a knife, stabbed the other, apparently also a non-U.S. foreign national. The assailant was apprehended and is now being held pending charges. The charge sheet is not fully filled out, and the exact specification of charges that would trigger a court-martial is missing. Nevertheless, it marks a first step in a process that could end in a first application of the March 10 memorandum. The facts of the case are insufficiently developed to allow any further comment, but it is noteworthy that the underlying facts occurred on a forward operating base, but the matter is not being referred (so far) to the Justice Department for prosecution using the special maritime and territorial jurisdiction, which applies to crimes committed on U.S. installations abroad.

Reviewing the Gates March 10 memorandum, like the Defense Department-Department of State memorandum on investigations from December 5, 2007, one fact stands out: the Justice Department is missing. The Gates memorandum makes clear what the law provides – primary authority and jurisdiction to handle these matters rests with the Department of Justice. Cases in which the court-martial process would in the ordinary course be used should be quite infrequent. The Gates memorandum provides for a two-week notice period in which Justice is to make a determination of whether it will act before military proceedings move forward.

However, as things stand, the Justice Department appears unprepared to investigate and act on cases coming out of Iraq, and totally uninterested in doing so. It does not appear to have deployed the resources needed to perform preliminary investigations in the field of the kind that the Gates memorandum assumes. And the case of Lisa Smith demonstrates graphically that it has no intention of changing this posture.

The Defense Department has now taken decisive steps that demonstrate a resolve to address a festering process. Its action now puts the spotlight even more clearly on the Justice Department, and leads us to ask whether the Justice lawyers and investigators can spare any time from their political shenanigans to engage in a little bit of actual law enforcement. The public has been awaiting an answer for more than a year.

Prepared remarks presented at New York University School of Law’s Conference “Privatizing Defense: Blackwater, Contractors, and American Security,” April 3, 2008.

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