Hearing of the Senate Foreign Relations Committee - Closing Legal Loopholes: Prosecuting Sexual Assaults and Other Violent Crimes Committed Overseas by American Civilians in a Combat Environment

Interview

SEN. NELSON: Good morning. We are having a hearing of the subcommittee of the Senate Foreign Relations Committee. We want to take this opportunity to hear some witnesses that can bring to light a number of circumstances that are occurring. And we are very pleased to have witnesses from the Department of Justice, the Department of State, and the Department of Defense here as well so that they can lend their expertise to the circumstances that we find ourselves in in order to determine an outcome of whether or not the law, in fact, is being obeyed, and if not, what to do about it, or if the law does not, in fact, cover some of these circumstances, should there be an additional law?

So let me begin by recalling some stories that have been found on the newspaper pages recently. One involves a Texas woman who was working as a civilian contractor in Iraq about two years. She was drugged. She was gang raped. And it was -- gang raped by coworkers. She was held against her will in a storage locker, and yet her assailant remains free.

Another story involves a woman from my state of Florida. She worked in Iraq for the same American company, and she also reported that she was sexually assaulted by a male coworker, and he wasn't charged either.

More recently, just a couple of months ago, a Mid-Western woman working for the same employer reported that she was gang raped by a coworker and a soldier at a U.S. base in Iraq, and her bosses, she says, discouraged her from reporting the assault.

And the latter more recent case is among our witnesses who will testify today to help us bring into sharper focus the problem of sexual assaults against American women working in Iraq and Afghanistan and the question about their ability to find justice.

Since last December, this subcommittee has been in contact with the Departments of Defense, State and Justice trying to ascertain the scope of this problem. And I have asked for the number of sexual reported to these departments. I've asked for an explanation of the policies in place to respond effectively to the allegations of sexual assault. And I've asked what steps the respective departments are taking to ensure the full investigation and prosecution of these cases.

And although the departments have on the whole certainly cooperated with my request, I think we have to paint the full picture of the number of sexual assaults perpetrated against these American contractors. And I don't believe that the respective departments have clear policies in place to address the crimes committed by and against American contractors working alongside our troops.

We have an unprecedented number of contractors posted in war zones, and if they are victimized by their colleagues or by soldiers, then the concern of this committee is that they end up in legal limbo. For example, the Sexual Assault Prevention and Response Office of the Department of Defense says it is not even aware of the procedures that the Military Criminal Investigative Services would take if they encountered a civilian sexual assault or harassment case except for referring the victim to medical treatment.

Now, that's disturbing. We've got a law -- as a matter of fact, we've got three laws on the books. We have procedures. And it needs to be clearly understood by the departments what the procedures are and what actions should be taken. And that's the whole purpose of this hearing in our oversight role of the legislative branch overseeing the executive branch.

Now, one of the other things we're going to look into is what appears to me to be an apparent lack of determination or desire on the part of the Justice Department to seek criminal prosecution of these crimes when, in fact, the law is on the books that gives the Justice Department that authority. And I'm told that together the Departments of State and Defense have referred numerous cases to the Justice Department, but to this day not a single one of these cases has been prosecuted. And it's certainly not that there are no legal mechanisms in place, because there are.

On the contrary, the Justice Department possesses the ability to prosecute such cases under the Military Extra-Territorial Jurisdiction Act, MEJA, MEJA. And that was in the passed in the law in the year 2000. This law provides that persons employed by or accompanying the Armed Services, the Armed Forces overseas may be prosecuted for any offense that would be punishable by imprisonment for more than one. The law's on the books. Quote, "employed by or accompanying the Armed Forces," end of quote. Overseas may be prosecuted for any offense that would be punishable by a year or more. That's the law.

I am deeply concerned that the Justice Department's limited use of this law -- and we're going to explore that today. I've asked the Department to address the adequacy or inadequacy of the existing legal authorities and policies, and if there's something inadequate, we need to know about it and correct it.

In the absence of criminal charges, the only option for these victims is the civil system, but in the few cases that have come to light the victims' employers have moved to be heard in private arbitration. And under this system, the victims' stories never see the light of day. There's no jury. There's no public record. And so the bottom line is American women working in Iraq and Afghanistan continue to be sexually assaulted while their assailants go free. This injustice results simply because these crimes happen abroad within theaters of operation of our Armed Forces.

Now, when similar crimes are committed anywhere within the United States on or off a permanent U.S. military base or at one of our embassies overseas, the authority and responsibility to prosecute is clear. Any legal loopholes that strip American citizens of their access to justice has to be closed. And the departments involved -- State, the Feds, Justice -- we need to come to terms and put policies and procedures in place to ensure the close coordination and cooperation. And hopefully that's what we're going to try to get at today.

And so what I've asked is -- I've asked the second panel to start first, and this is because I want the set the table -- we have an expert on the law, Mr. Fidell. Am I pronouncing that right?

MR. FIDELL: (Inaudible) Fidell.

SEN. NELSON: Fidell. Okay, Mr. Fidell. We have an expert on the law and we'll get into that, and then we have two very courageous witnesses who are victims, one of whom I've already referred to as the assault having taken place just two months ago.

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SEN. NELSON: Now, on a particular night in 2004 you were driving your truck. It was a water truck. And you were lined up, in line to take on water --

MS. KINESTON: Correct.

SEN. NELSON: -- on your tanker truck.

MS. KINESTON: That's correct.

SEN. NELSON: Tell us what happened.

MS. KINESTON: And it's just -- it happened just to be that I had to take the night shift that night, and we had to do round the clock watering and supplying the troops with water on Camp Anaconda in Balad. And that particular night I was -- there's no lights on the base after dark. So everything was pretty well pitch black, except there was one light that was on the pump. And what it is is -- there's a hose that goes into the Tigris River, and it -- they pump it out of the Tigris River, and then they filter it, and then they put it into our trucks. So I was on top of my water truck with a flashlight, because that's how you had to do it. And then when your truck was full, then you had to signal the pumper to turn the water off.

SEN. NELSON: Let me set this setting here. You're in a camp which is apart of the bigger base of Balad.

MS. KINESTON: Correct.

SEN. NELSON: And at night they turn the lights out.

MS. KINESTON: Yeah, there's no lights on the base after dark.

SEN. NELSON: Okay. And why was it that you were pumping your water at night?

MS. KINESTON: Because it was a 24-hour service that we did for the military. We had to do whatever they asked us to do. They put work requisitions in, and then that was part of my job to do that.

SEN. NELSON: Okay. So you're up on top of your truck --

MS. KINESTON: Correct. And --

SEN. NELSON: -- on top of the tank and you're putting this water that's coming out of the Tigris River.

MS. KINESTON: Correct.

SEN. NELSON: Tell us what happened.

MS. KINESTON: And then once it's full, then we have a ladder on the back of the truck, and I'm coming off the back, stepping down the ladder, and all of a sudden I feel these hands on my legs and on my butt. And I'm like -- you know, I turn around like shocked 'cause I didn't know what was going on, and it was the man that had his truck right behind me waiting to get filled up. And I quickly jumped off the truck and said no, no, no, stop. And he continued his aggression towards me, and he -- this is a semi truck, so I had to walk all the way up the side of my truck and get into the cab of my truck, and he followed me all the way up the side of my truck into the cab of my truck.

Once the door was open to the cab of the truck, he could blocked it so I couldn't shut it. And there he pinned me down in the cab of my truck, and I can remember -- I was trying to fight him off so badly that I hit the steering wheel of my truck so hard that the side of my arm was all black and blue for several days. And he pinned me down. He took my -- I had shorts on. He took my shorts off and he raped me.

SEN. NELSON: Now, this is a large truck. This is an 18 wheeler.

MS. KINESTON: Correct, correct.

SEN. NELSON: Now, did you cry out for help?

MS. KINESTON: Oh, yes, yeah. I was screaming and yelling the whole time. The only other person that was around that area -- because we were right next to the Tigris River -- was the pump operator, and he was Filipino, and I don't think he was -- didn't either care to know what was going on or he just didn't understand what was going on.

SEN. NELSON: And were there any other trucks in line?

MS. KINESTON: No.

SEN. NELSON: So you were out there alone with this one other truck behind you.

MS. KINESTON: Correct.

SEN. NELSON: Can you describe your assailant?

MS. KINESTON: He was a Turkish nationalist. He got a job through KRB as a subcontractor for Kulac (ph). And they were another contracting company that they hired to come on the base and also do watering.

And he was a Turkish man. He was big and bulky, and he overcame me. And they told us when we went over there that if you point to your wedding ring that say married, married that they would -- sometimes they would leave you just alone and they would walk away. And I can remember distinctly saying that over and over again, no, no, no, and -- but he wouldn't stop. He just kept -- he was there for a purpose.

SEN. NELSON: So he raped you and left you there in the camp.

MS. KINESTON: Yeah, he -- I finally had got my leg -- I wiggled my legs out and I pushed him. You know, when you climb up a cab of a truck you're up pretty high. So I kicked him out of my truck with my legs, and as soon as the door was cleared I slammed the door shut, I locked the door, (cries) and I drove away.

SEN. NELSON: Alright, tell us what happened after that.

MS. KINESTON: As I was -- the KBR sleeping area was on the other side of the base. I'm sorry.

SEN. NELSON: That's okay. We want to hear this story, and we want to hear now what happened in your attempts to report this rape.

MS. KINESTON: Well, this was the part that I get upset about because I was -- they get -- everybody on the base gets a radio, and that's solely for your safety. And so I was driving back to my sleeping quarters as fast I could, and on -- I'm yelling and screaming on the radio over and over and over again for my supervisors or somebody to answer, and nobody would answer the radio.

SEN. NELSON: And all the time you were driving back to your part of the camp, the base, and once you get back there, nobody has responded on the radio to your cries for help, and then what happened?

MS. KINESTON: Well, when I got -- when I finally did pull in, I got like a worker that is like three levels down from my supervisor, and he picks up the radio and he says what do you want? You woke us up. And I said I need to speak to you immediately, and I need to talk to you right away. And he goes, well, give us a couple of minutes and -- he goes -- I go, where are you? And I said I'm in front of the administration office and I need to talk to you right away.

SEN. NELSON: About what time at night is this?

MS. KINESTON: Well, now it's about 10:30, quarter to 11:00.

SEN. NELSON: Okay. And then what happened?

MS. KINESTON: Then my supervisor showed up and this other guy that answered the -- finally answered the radio, and he -- I just -- I'm just so upset about the way they treated the whole incident. I told them everything that had happened, and they said well, okay, well, we'll just call security and you can tell your story again. And they called security and I was inside this room for like over two hours and I was telling them everything. And the thing of it is, senator, that there were women on that security team, and they didn't bring one of those women in there to listen.

And I was just so embarrassed about saying it over and over and over again. And then they didn't offer to take me to the hospital. They didn't offer to -- they didn't even walk me back to my sleeping container. They didn't even offer to walk me back. I had to walk back in the dark by myself.

SEN. NELSON: Tell us, where was your husband?

MS. KINESTON: He was out on convoy. He was down by Baghdad.

SEN. NELSON: And so he was gone for several days.

MS. KINESTON: Correct.

SEN. NELSON: And they had allowed you and your husband to have a residential area together.

MS. KINESTON: Correct.

SEN. NELSON: So you have to walk back by yourself through the dark --

MS. KINESTON: Right.

SEN. NELSON: -- back there. How many people all male on this security team did you meet with that night?

MS. KINESTON: I would say there was about five, five altogether.

SEN. NELSON: And did they say that they were going to do anything about this?

MS. KINESTON: Oh, yeah. They promised to -- you know, they said oh, we'll take care of it. Don't worry about it. Don't worry about it. We'll take care of it. And I just went back to -- you know, I was so in shock and I just couldn't believe that -- I'm in a war zone and I have to worry about my coworkers. I should've been worried about getting hit by a incoming attack, and I have to worry about being attacked by my coworkers.

SEN. NELSON: After you went back to your place where you lived, your residential like trailer, what happened then?

MS. KINESTON: You know, they didn't even say oh, well, Mary Beth, you go ahead and take the next couple of days off. Don't worry about it. You know, you take -- they didn't even say that to me. I had to say to them don't expect me at work tomorrow 'cause I'm not coming in. And so I went back to my quarters and I just -- I think I stood in the shower for like three hours, and then I just was in shock the whole -- the rest of the day, the next day.

SEN. NELSON: Did you return to work shortly thereafter?

MS. KINESTON: Yeah, I was off the next day, but the following day I did report to work and I did all the -- my whole routine, including the fact -- getting back into the water line to fill up my truck. (cries) And when I was back in the water lines, two trucks behind me was the man that raped me that very next day. So KBR didn't do anything about anything that I had reported. And when I saw him in the line, I immediately locked all the doors on my truck and I got on the radio. And I don't care what KBR said because when you hit the ground at KBR they tell you you're not allowed to talk to the military, and you're -- and we're a separate entity. And if you have any problems, then you call KBR.

Well, I ignored that 'cause I was scared to death about this man being in the same water line again with me. So I immediately got on the radio and I called for the MPs, and I called and they were there immediately. And senator, they were not only there immediately, they -- I told the man -- I told the officer. I said that man that's in that truck two doors -- or two trucks behind me raped me two nights ago. They immediately dragged him out of the truck, put handcuffs on him, and took him to jail.

SEN. NELSON: This is the military police at the base.

MS. KINESTON: Correct.

SEN. NELSON: What happened then?

MS. KINESTON: They took him to jail, and then the officer said to me -- and by that time now all of KBR is there, and they're all saying what's wrong? What's wrong? And I wouldn't even talk to the KBR people. I only did exactly what the military police were telling me to do. And they said that I needed to come and give a statement of what was going on, and that's what I did.

SEN. NELSON: To the military police.

MS. KINESTON: Correct.

SEN. NELSON: Alright.

Now, where in the process was that reported or not reported to some authority that ought to investigate this as to whether or not a crime has been committed? What do you know about that.

MS. KINESTON: All I know is that he told me -- the military police told me that their statement -- my statement -- I had to identify him also, and that because he was a contractor that they had the right to kick anybody off the base immediately, and that's what their -- that's what they were going to do. I guess it had to go through the commander on the base because he's the one that tells you that you have to get off his base.

SEN. NELSON: Have you ever had any indication that this was referred for prosecution against that contract employee, the Turkish national?

MS. KINESTON: No, no, never.

SEN. NELSON: Was the Turkish national -- was there done anything to him that you know of?

MS. KINESTON: All I know is that he was kicked off the base because after that day I never saw him again and he was doing the same job that I was doing, so I never saw him again.

SEN. NELSON: In your statement you state, "I reported the matter to a U.S. Army Jag Core officer at Anaconda." Anaconda is your camp at Balad Air Base.

MS. KINESTON: That's correct.

SEN. NELSON: "I reported the matter to a U.S. Army Jag Core officer at Anaconda and the military police. I asked for help and was politely told that the Jag does not support civilians on the base."

MS. KINESTON: That's correct.

SEN. NELSON: So you tried to contact Jag to know your rights, and they told you that they didn't support civilians on the base.

MS. KINESTON: That's correct. After I was raped the sexual harassment in my department of 45 men and two women just intensified to the point where me and this other woman -- we were like -- we didn't know where to turn. So one day after work I sought out the Jag office and I politely waited my turn to talk to him, and I told him that the sexual harassment and the things that we had to go through -- like we had supervisors pulling down their pants and urinating in front of us. I had pornography put in my truck all the time and just different things like that that we had to deal with on a daily basis. And he politely told me that they were there to support the military and that the only thing he could do was fly in a civilian attorney out of Baghdad.

SEN. NELSON: Alright. Going on, you say "having nowhere else to turn, I sought help with KBR management and, as noted, I was either ignored or disciplined in retaliation, and nothing was done to bring the perpetrators of the sexual assault to American justice."

MS. KINESTON: That's correct.

SEN. NELSON: Is there anything more that you want to tell us about this issue that we're trying to address?

MS. KINESTON: Well, I just -- you know, my husband and I are good people. We go to church every Sunday, and we just wanted to go over there to better our lives and the lives of our children, and KBR ruined that for us. And they put up with the behavior of those men, and I strongly believe that they put up with the -- because not only did -- I was raped, but I was also sexually molested two months before I left KBR. And so they just put up with that behavior, and there was nothing ever, ever done about that. They say that pornography on a military base is a firing offence, and they didn't even do that. They didn't even bring -- they didn't even question the man when I told them about being molested. So it was like KBR ignored it. And then there was just nowhere else for us to turn to.

SEN. NELSON: This is several months after the rape, and you are in a truck with other contractor employees, men.

MS. KINESTON: Correct.

SEN. NELSON: And you're being transported from one place to another.

MS. KINESTON: Correct.

SEN. NELSON: Tell the committee what happened.

MS. KINESTON: Before we reported to work, I went over to the gym to work out, and on the way over to the gym I was walking, and two of my coworkers that I worked alongside every day with pulled up next to me and said where are you going? And I told them, and they said oh, we're going there too. Do you want a ride? And I said yeah, I'll take a ride. So I got into the truck with them, and they were laughing and carrying on, and I kind of sensed that they had been drinking. So I just sat there, and the man next to me decided that it was going to be real funny for him to put his hand in my pants. And the minute he did that I pushed him away and opened up the door and jumped out of the truck and the truck was still moving while I jumped out of it.

SEN. NELSON: And were the others engaged in this activity?

MS. KINESTON: No, just that one guy.

SEN. NELSON: Were they all noticing what he was doing?

MS. KINESTON: The other guy that was in the truck was the driver of the truck, and he was just laughing, and he just -- they just thought that was really funny.

SEN. NELSON: And both of those were Americans.

MS. KINESTON: Yes, sir.

SEN. NELSON: They were employees of KBR as well?

MS. KINESTON: Yes, sir.

SEN. NELSON: Had they been ones that had made sexual references to you verbally before?

MS. KINESTON: No, they -- nothing before that point.

SEN. NELSON: Did you report that incident?

MS. KINESTON: Yes, I did, sir. I immediately reported it.

SEN. NELSON: To --

MS. KINESTON: James Colinosky (ph), who was a -- he was like the head of the camp management.

SEN. NELSON: A KBR employee?

MS. KINESTON: Yes.

SEN. NELSON: Alright. And then about a couple of months later you left.

MS. KINESTON: Correct.

SEN. NELSON: Tell us about that.

MS. KINESTON: Well, I continued to do my job, but every day they would find something wrong with me, with my job. They were really giving me a hard time every time. And one night I had come home late from work and I parked my truck close to my sleeping quarters because I was afraid to walk in the dark. And after the rape my husband would walk out to my truck every day and walk me back to my door because I was so afraid. And that particular night my husband was gone, so I parked my truck kind of close to my building, and they wrote me up for that.

And then they -- all the men in my department got together and had a meeting with the HR representative, Aidan Stockton, and they all got together and told them that we were getting special treatment because we were females and that they were being discriminated against.

And the only special treatment I ever remember getting was that they let us use a pickup truck at the end of the day to go home from work so we wouldn't have to ride with men that were going to put their hands in our pants. And that was the only special treatment we ever got. And four weeks after that meeting I was terminated. I was fired for ridiculous reasons.

SEN. NELSON: They said you were speeding.

MS. KINESTON: I was speeding and I passed a truck on the base.

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SEN. NELSON: And tell us about your deployment. You were first deployed in Iraq where as a paramedic?

MS. LEMON: I was first -- (inaudible) -- in Camp Cedar, which is in southern Iraq. And it's basically the largest truck stop and the fueling point in southern Iraq and provided medical care to the contractors and the subcontractors, and then would provide support to the military if ever needed.

SEN. NELSON: And you were there some eight months or so at Camp Cedar.

MS. LEMON: I was there from July until January 26th.

SEN. NELSON: From July of '07 until January 26th, this year.

MS. LEMON: Of this year, correct.

SEN. NELSON: Okay, and then they sent you to a forward operating base further south near Basra.

MS. LEMON: Correct.

SEN. NELSON: Tell us about that.

MS. LEMON: That is in a -- what's known as a red zone. It's a highly active base as far as incoming fires. It's a very small -- (inaudible). There's approximately 60 KBR employees on that -- (inaudible) -- and it is part of a British -- overall British base.

SEN. NELSON: And describe for the committee the quarters of this particular base, the structure of how the residential and office units were lined up, and describe the protections from the incoming rounds of mortars and so forth.

MS. LEMON: Our living quarters are similar -- if you can imagine a mobile home park, but they're all connected. There's a row of 12 -- similar to mini -- a motel with a interior hallway and doors that would connect into the hallway, and then you would walk to your living areas. There was four rows of these, which are comprised of eight total trailers, and the office spaces would be in the front part of the -- and then there would be living quarters towards the back area. This was connected to two other camps, one being a military camp.

There was T walls, which are large protection barriers that help protect from the indirect fire that we received that surrounded this area. However, everyone could walk through all the living areas. There was no restrictions at that point. We did have security that came down in February to help with force protection and to help get the bunkers more stable and to provide a little bit more protection for the incoming fire that we were getting.

SEN. NELSON: And in this particular unit it's about -- how many people are located there?

MS. LEMON: In our living area there was approximately 60 people.

SEN. NELSON: That's Camp Cedar.

MS. LEMON: At Camp Harper.

SEN. NELSON: I mean Camp Harper.

MS. LEMON: Correct.

SEN. NELSON: And it was your responsibility to be the medical person on the scene. If anyone received any incoming rockets and were hurt, you were the person that would first administer medical treatment to them.

MS. LEMON: Correct.

SEN. NELSON: Now, tell us about how Iraqi troops had access to this area.

MS. LEMON: They were allowed -- because of other circumstances, and they really would want to be careful as far as jeopardizing anyone's safety or security for that area. But they were allowed to walk through that area for their particular job.

SEN. NELSON: Okay, so it's the end of January --

MS. LEMON: Correct.

SEN. NELSON: -- of this year.

MS. LEMON: Correct.

SEN. NELSON: And tell us what happened on this particular night.

MS. LEMON: The night that I was assaulted we had had quite a bit of indirect fire throughout that week. I had only been there seven to ten days. I was asked by a KBR employee if I wanted to go have a drink. We did go to another KBR employee's living area. There were five of us and myself. We had a drink of Absolut Vodka and orange juice mixed in a Gatorade bottle. From that point I had been drinking. We had talked about it. People were going to get up at 4:00 to watch the live broadcast of the Super Bowl.

So we had just been talking. I had went to my room for a moment. I had set my drink down when I went to my room. I came back and finished my drink. At that point I started feel strange, but I wasn't unconscious. I just didn't feel right. I wanted to go outside and have a cigarette.

I asked one of my friends if he'd go outside with me. He said it was too cold and I stayed in that room. At some point thereafter we left and went to another employee's room.

SEN. NELSON: Now, how many people were in the room with you when you're having the vodka and orange juice?

MS. LEMON: There was four to five people in there, and the camp manager had stopped in and said goodnight to us and went on to his room.

SEN. NELSON: And the room that you're in is the living quarters of one of the employee's?

MS. LEMON: Of KBR employees, yes.

SEN. NELSON: Were we going to name these people, or are we not going to name the people? Is there any problem with naming -- put the specific names on these people?

MS. LEMON: I don't know because of the investigation.

MR. I don't have any problem with it.

SEN. NELSON: Okay. Alright, who's room had you gone to with regard to the drinking of the vodka and orange juice?

MS. LEMON: Jaime Smellman's.

SEN. NELSON: And what was his position?

MS. LEMON: He was a power gen operator for power generator mechanics.

SEN. NELSON: I see. He was a KBR employee.

MS. LEMON: Correct.

SEN. NELSON: Okay. Alright, pick up the story from there. You said you remember then going to another person's room, but you were feeling unusual.

MS. LEMON: I felt very unusual, and I don't -- I can't honestly say that I remember walking to that room, but I remember being in that room. In that room -- And Dan, do you want me to name --

MR.: You can tell the truth, Dawn.

MS. LEMON: Okay. In that room William Reisner (ph) was with me as well as a special forces soldier that I did not know at that time. That --

SEN. NELSON: And was that the room of William Reisner?

MS. LEMON: Correct.

SEN. NELSON: And so you have a memory of going down to his room, although you're feeling -- describe how you're feeling.

MS. LEMON: It's more of being in a fog. And from everything that I've gone over in my head over and over and over again, there are blurps that I remember and there's things that I remember absolutely nothing of.

SEN. NELSON: Okay, well, tell us what happened next that you remember.

MS. LEMON: The soldier was kissing on my neck, and they -- I was sitting at the end of this bed. And I remember trying to push him away, but I wasn't being forceful with anyone. And I remember being laid flat on my back at the end of this bed and holding onto Andy's hand, and --

SEN. NELSON: Andy is William Reisner?

MS. LEMON: Correct.

SEN. NELSON: Okay. And then what happened?

MS. LEMON: I remember just thinking in my head he's going to make this stop. He's going to make this stop. The soldier then anally penetrated me and I screamed. And at that time Andy put his penis into my mouth.

SEN. NELSON: William Reisner.

MS. LEMON: Right, William Reisner. When he let go of my hand, I felt the whole thing was -- there was nothing at that point that I was going to do. He was life line. He was my coworker.

SEN. NELSON: Had he made any kind of advances to you prior to this?

MS. LEMON: No.

SEN. NELSON: Okay. Then what happened? So your scream was basically stopped when he did the act that you just described.

MS. LEMON: Correct.

SEN. NELSON: Alright. Then what happened?

MS. LEMON: I vaguely remember them switching places. I remember feeling like somebody was holding my legs up. That's the last memory I have in that room. I woke up the following morning in my room in a chair, naked. The soldier that was in William's room earlier was in my bed. There was feces on him. There was blood on him. There was feces on my floor. There was feces in my mouth. I --

SEN. NELSON: And you were in the chair and this soldier was in the bed.

MS. LEMON: Correct.

SEN. NELSON: Did you notice any -- what did you do then when you looked at the soldier?

MS. LEMON: I had been awakened by indirect -- by outgoing fire. We were sending out rockets and that's what woke me.

SEN. NELSON: Was the soldier naked?

MS. LEMON: Yes.

SEN. NELSON: Where were his clothes?

MS. LEMON: His clothes were between the chair and the bed, as well as his weapon, was next to his clothes. At that time I went and showered. I started trying to clean up the floor. I was using Soft Scrub on the floor and it started to fade the carpet. I had tried to wake up the soldier. He didn't wake up. I started washing things and noticed at that time that he had a red mark on his penis. I don't know because I did look that closely if it was a scar or a birthmark or if he does have some type of a sexually transmitted disease.

I had to report to a meeting which began at 7:00 that morning. I went to that meeting. Coming back from the meeting the camp manager pulled me into his office. He told me at that time that what happened last night will never happen again.

SEN. NELSON: And what's the camp manager's name?

MS. LEMON: Larry Martin.

SEN. NELSON: He's the camp manager for KBR of that Camp --

MS. LEMON: Harper.

SEN. NELSON: Harper.

MS. LEMON: Correct. At that time I thought he was referring to me having a drink. It's strictly against KBR's policy that you drink in theater. I offered at that time to pack my room up and go home. He said no, that's okay, sweetie. We'll take care of it. It'll be alright. And I'm like completely confused by his behavior at this point. I said Larry, he's still in my room. And that is when the soldier was identified to me as -- a first name of Jason. Larry said Jason's in your room? He just broke my trust.

At that point I went back to my room to try to get him out of my room. Larry went to get the liaison for the military. I came out of my room and the liaison from the military talked to me and he said Dawn, don't worry about it. I'll take care of it. We're not going to speak of this ever again. I'll take care of it.

SEN. NELSON: This is the camp manager.

MS. LEMON: That was the military liaison that said that, that he was going to take care of it and I was not to speak of it.

SEN. NELSON: Now, is he a KBR employee.

MS. LEMON: No, he's military.

SEN. NELSON: No, this is military.

MS. LEMON: Correct.

SEN. NELSON: Do you know who he is?

MS. LEMON: I know his first name of D.J. I don't know any --

SEN. NELSON: So he was part of the military contingent that was there.

MS. LEMON: Was there, correct. After that timeframe and that morning I never had conversations with Jason again. I did speak with D.J. on a daily basis, not regarding that incident, but regarding operations of daily camp living. I did speak with William Reisner on a daily basis. I did treat him for an occupational injury where I was to leave that camp. You had several factors. First of all, you could only get a flight three days a week. On those three days if incoming or security issues were concerned, they would not fly. With it being spring time in Iraq -- and our winter was incredibly dry this year -- the dust storms were horrendous, which also would prevent flying.

The T sites normally are slated for 11 paramedics. Currently we have five to cover all the T site camps in southern Iraq. There was difficulty getting a replacement for me. There was also difficulty for me to get out of Iraq. The reason I want you to be aware of this is to understand to report this -- first of all, I didn't have military police there. We had British -- and even for me to take a KBR employee to the British hospital you have to receive their permission to get care for them.

It is very easy in that part of Iraq for someone to disappear. It's very easy for accidents to happen. My communications were I believe monitored for -- not as an intentional act against me, but for safety for the camp. I believe all the communications were monitored.

SEN. NELSON: So other than talking to the camp manager and the military liaison --

MS. LEMON: It was never brought up again until I left.

SEN. NELSON: It was never brought up again.

MS. LEMON: Until I left.

SEN. NELSON: And you had nobody that you could report this to, and you fear since there were no military police there -- and you just described that it was the British.

MS. LEMON: Correct.

SEN. NELSON: And so you were fearful of reporting this to someone that was there because -- tell us again what you just said about people disappearing.

MS. LEMON: I could disappear in a heartbeat. I could fall. I could have a head injury. And it could be explained. It could be logically explained with the type of activities we have there.

SEN. NELSON: And, for example, tell the committee how it would be logical to explain the disappearance of some -- of an American from a forward operating base.

MS. LEMON: Because of the type of base that it is, because of the purpose of that base, because of the area that we're in, and because of the amount of indirect fire and the unrest in Basra in general, just that specific environment and the lack of organization as far as structural organizations compared to other bases similar to Camp Adir (ph) or Anaconda, or, you know, where you have all the departments available to your services.

SEN. NELSON: So you tried to get out of Camp Harper, and it took you how many weeks to be able to be flown out of Camp Harper?

MS. LEMON: I was able to get out of Camp Harper by complaining about wearing my vest. We were in bullet proof vests and helmets from 5:00 in the morning until midnight. My vest weighed between 35 and 45 pounds. Trying to operate in that was very difficult on me.

SEN. NELSON: And you were the only paramedic --

MS. LEMON: I was the only paramedic, yes.

SEN. NELSON: -- in Camp Harper.

MS. LEMON: Correct.

SEN. NELSON: And so they had to get a replacement for you.

MS. LEMON: They had to have someone come down for me. I had to spend two days with that person at least, and then I was allowed to leave.

SEN. NELSON: Okay. And how long did it take you to get out of Camp Harper?

MS. LEMON: My replacement came in the end of February. My travel process out of Camp Harper was -- we did fly to Kuwait. From Kuwait we fly up to Baghdad. You spend the night in Baghdad, and then you fly to Camp Adir, and then I traveled by a hard car, which is an armored vehicle, over to Camp Cedar.

SEN. NELSON: Okay, and tell us what happened at Camp Cedar.

MS. LEMON: At Camp --

SEN. NELSON: This is like three weeks later after the assault?

MS. LEMON: Correct.

SEN. NELSON: Okay.

MS. LEMON: When I got to Camp Cedar, I -- my manager was there. She's normally stationed at Camp Adir. I told her that I was assaulted and that I just needed to talk to employee assistants, that I just needed to deal with this. In speaking with employee assistants, there was a concern as far as reporting it at all because of the history of harassment and retaliation on KBR's part.

I went back and talked to my manager a little more without giving her specific details and then wrote a revised statement to Employee Relations explaining my assault. Employee Relations had my sign documents stating that I would not speak of this to anyone. If I spoke of it, I would be terminated.

SEN. NELSON: This KBR employing --

MS. LEMON: KBR Employee Relations. Over a couple of days time he did have email conversations with me requesting additional information, requesting different information regarding the camp, the situations at Camp Harper. I did provide those statements for him. When I asked him what was going to happen, he couldn't give me an answer at that time.

Later I was contacted by Global Investigations, which is also apart of KBR. I was asked to come over to Camp Adir and speak with them. I explained the situation because the T sites were so short on paramedics at Camp Cedar. I was also the only paramedic there.

SEN. NELSON: So while all this is going on you're still performing your duties as a paramedic.

MS. LEMON: Absolutely, absolutely.

SEN. NELSON: Okay. Did they transport you by vehicle over to Camp Adder?

MS. LEMON: Yes, they did.

SEN. NELSON: Okay, and what happened over there?

MS. LEAMON: At Camp Adder, Global Investigations started by asking several questions regarding the statement I wrote to Employees Relations and asking for specific details. And we spent quite a bit of time that day talking. And then she -- I had asked to be able to have a physical exam to rule out any sexually transmitted diseases, even though I had treated myself in Harper for potentially sexually transmitted diseases.

SEN. NELSON: By taking what?

MS. LEAMON: Doxycycline, which is an antibiotic.

SEN. NELSON: I see. So you did not see a doctor until you got over to Camp Adder?

MS. LEAMON: Correct.

SEN. NELSON: All right, tell us about that.

MS. LEAMON: Global Investigations said that it would be much better if I was seen by the military doctor, that way it would not cost me anything. I had asked to be able to do it on my way on -- I had a scheduled vacation coming up, if I could have an extra day to have it done at the International Clinic. She advised it would be much better for me to be seen at the military, and that way we would get the results and have everything right there, and it also would be no cost to me.

I agreed to do this. They took me over for coffee, and they took my over to the Combat Support Hospital. And she went in and talked to the officer in charge of the Combat Support Hospital. I stayed outside. Approximately 30 to 40 minutes later, the investigator as well as the physician came out and spoke with me.

The physician brought me into the clinic. We spent a great deal of time talking. She was very kind. She asked me to describe what happened. And she spent a lot of time telling me that from what I could describe to her that it sounded like I had been drugged and that I was raped.

SEN. NELSON: This is the doctor?

MS. LEAMON: This is the doctor.

SEN. NELSON: And it is a military doctor at Camp Adder?

MS. LEAMON: Correct.

SEN. NELSON: And this is now more than three weeks after the assault.

MS. LEAMON: Yes. This is closer to almost five weeks. She was very, very supportive of my situation. She encouraged me at that time to report it as well, further. She asked if I would see the Combat Stress personnel, and she did her exam and collected her samples.

Since the assault, I sleep about an hour to an hour and a half at a time, if that long. The physician wanted me to see Combat Stress in order to get some medication to go to sleep, at least to get one night good night of sleep. I did follow those steps. I did speak with combat stress. I did see combat stress psychiatrist who prescribed four tablets for me to sleep at night.

What I found out after that was slightly disturbing, because when I went to fill my prescription, the military has my social security number incorrect, so I don't know if I'll ever see my test results because of a numerical error. They said not to worry about it at that time.

SEN. NELSON: Do you still have trouble sleeping?

MS. LEAMON: Yes. I sleep -- usually every other day I'm able to sleep. I sleep for about an hour to an hour and a half. I wake up. I work really hard at convincing myself to at least stay in bed -- (laughing) -- and that seems to be quite a challenge these days.

SEN. NELSON: In your written testimony, which of course all of your written testimony will be a part of the record of this committee, you say, "When I got to Adder, I was taken to CID, Criminal Investigative Division where I was interrogated from 2:00 p.m. until midnight by two special agents."

MS. LEAMON: Correct. That was not that day. This was Global Investigations, which is KBR's investigators, that arranged this day of interrogation. I was allowed to go to sleep that night, and the following morning I was to meet with Global Investigations again at 8:00 a.m.

At 6:15, Camp Adder was hit with indirect fire, killing three American soldiers, injuring a subcontractor. I went over to the KBR clinic once we were cleared to leave the bunkers. I opened the clinic to provide medical care to the KBR contractors while the paramedic assigned there assisted with the injuries of the subcontractor.

Once that was taken care of, I did go back and speak with Global Investigations. They provided a statement for me to sign. They -- I had a question about some inaccuracies in it, and their response was the sooner you sign this, the sooner you can get back to your base where you feel safe.

I asked her if I could have a copy of the statement. I had a photograph that she wanted, which I had back at Camp Cedar. She said as soon as I give her the photograph she would bring it -- she would send me a copy of my statement. I returned to Camp Cedar that day. I did contact Mr. Ross and explain to him further what had gone on. I believe at that time, and I'd refer to Dan to -- he sent a letter to KBR.

SEN. NELSON: And who is Mr. Ross?

MS. LEAMON: Dan Ross is my attorney. I contacted him at the recommendation of a friend in Iraq, just to try to ensure some protection for me. That day, after Dan had sent a proof of this letter to me, I opened it on my computer. There was a correction that needed to be made on a date. I made the correction, sent it back. Within 20 minutes, KBR security came and confiscated my computer.

SEN. NELSON: Now, this is at Camp Cedar.

MS. LEAMON: This is at Camp Cedar. Within minutes of my computer being confiscated, I received a phone call from the head of security who is stationed at Camp Adder stating I needed to be on the next hard car; that he was sending my manager over to relieve me. I went to Camp Adder. The head of security met me at our service center, put my belongings in his vehicle, and delivered me to CID.

SEN. NELSON: And that's where you pick up here then, quote, "When I got to Adder, I was taken to the Criminal Investigative Division."

MS. LEAMON: Correct.

SEN. NELSON: Now, this is military.

MS. LEAMON: This is the military.

SEN. NELSON: "Where I was interrogated from 2:00 p.m. until midnight by two special agents. I advised them that I had an attorney, and they convinced me to sign a waiver of my rights. The agents were very intimidating, and their questions and demeanor suggested strongly that they thought I was lying about the rape," end of quote.

MS. LEAMON: Correct.

SEN. NELSON: Pick up there.

MS. LEAMON: At midnight, they took me a room that was in the military housing area. It was an empty room between the two special agents. They told me that this was for my protection, as the suspect from Camp Harper were on the camp and free remotion (ph) at that time, which means they could move around the bases if they wanted to. I was advised -- I'm a smoker. I was advised if I wanted a cigarette to go to the bunker and stand by the bunker, that way I would not be seen.

They told me they would come back at 10:00 a.m. to pick me up, and they did. Actually, he was there a little earlier. We went back to their office. We reviewed a 14-page statement. He asked some more questions and asked me to hand write a narrative, and once I completed that I could go back to Camp Cedar again.

I completed that and was picked up by security and taken to a hard car and taken to Camp Cedar, continuing to do my job now without a computer, continuing to be accountable to be at meetings and briefings and the new-hire orientation, even though I was not aware of the meetings, briefings -- (laughing) -- or the orientations. I would receive a phone call, "You're supposed to be here five minutes ago. Why aren't you here?"

I had requested from KBR multiple times as to what was going to happen next, what's going on, never to receive a response.

SEN. NELSON: So you were back at Cedar, and then they take you back to Camp Adder to give more swabs for DNA?

MS. LEAMON: Correct.

SEN. NELSON: And all along, your attackers are freely moving about --

MS. LEAMON: At Camp Adder.

SEN. NELSON: -- at Camp Adder.

MS. LEAMON: Correct.

SEN. NELSON: But every place you go on Camp Adder, you are accompanied by KBR security and military personnel from the Criminal Investigative Division.

MS. LEAMON: That is correct.

SEN. NELSON: But you saw no attempt to be curtailing the movements of your assailants.

MS. LEAMON: Correct.

SEN. NELSON: And then they decide to send you home?

MS. LEAMON: I had a scheduled vacation, and I was allowed to leave as scheduled.

SEN. NELSON: And so now you are still an employee of KBR, and you're supposed to go back to Iraq.

MS. LEAMON: I was supposed to report back to Iraq on Sunday. If I did not report as scheduled, I had to sign a waiver saying I would not be paid my vacation time, nor would I be reimbursed my ticket home. I contacted human resources during the week last week requesting an extension to my R&R. They advised that I needed a medical leave of absence and would need a physician's document signed.

I did go to an emergency room to speak with a physician, because we have not been able to get appointments set up as of yet with somebody who has experience with PTSD and sexual assault. The emergency room physician said, "Well, you have PTSD," but refused to sign the KBR document saying that I could not go back to Iraq.

I notified human resources of this and asked them -- there's a procedure you must go through to get an extension. I asked if at this time I could request the extension. I was allowed to do that. The extension was granted for 10 days, and later that afternoon we were notified that I was put on medical leave of absence.

SEN. NELSON: Are you planning to go back to Iraq?

MS. LEAMON: My heart would love to go back and support our military. My heart would love to go back and take care of the people at my camp, at Camp Cedar. I can't go back with KBR. I can't do that.

SEN. NELSON: And thus far, you don't have any indication that your assailants are being prosecuted?

MS. LEAMON: I do not know what the status is of any of the investigations.

SEN. NELSON: Now, tell us about -- you received some photographs. When did you receive them?

MS. LEAMON: Prior to leaving Camp Harper, my camera had been broken. We had some indirect fire that caused significant damage close to a living area. I had asked William Reisner (ph), who had been taking pictures, if he would transfer those to my flash drive so that I could take them home. He transferred those photographs along with a photograph that was fairly undesirable of me, as well as several photographs of him as well as a photograph of the head of security, the head of the camp security, and another KBR employee.

SEN. NELSON: The undesirable photograph of you having been taken on the night of the --

MS. LEAMON: Assault.

SEN. NELSON: -- assault.

MS. LEAMON: Correct.

SEN. NELSON: And there was another photograph of another male that was in bed with two Bosnian women?

MS. LEAMON: That's CID's photographs that they showed me, asking me to identify people -- (crosstalk) --

SEN. NELSON: Okay, unrelated to the photographs you got.

MS. LEAMON: Correct.

SEN. NELSON: The Criminal Investigative Unit had a separate photograph of -- was it one of the assailants?

MS. LEAMON: They had a picture of the camp -- the military camp liaison in bed with the Bosnian women.

SEN. NELSON: And the Bosnian women are people that are there that are employees of --

MS. LEAMON: Of KBR.

SEN. NELSON: -- preparing the food.

MS. LEAMON: Correct.

SEN. NELSON: Tell me, one of these photographs, we have a blown up copy. Now, this is the photograph that you received that was on your -- what do you call it? The thumb --

MS. LEAMON: Thumb drive -- (inaudible) -- stick.

SEN. NELSON: And this happened to show up on this that you were given by whom?

MS. LEAMON: By William Reisner, my --

SEN. NELSON: William Reisner, your assailant. And can you describe that photograph for us, who they are and what they're doing.

MS. LEAMON: The person -- I don't know what you want, from right to left. The person with the cap on, saying that's the right, is a KBR employee and just a plumber.

SEN. NELSON: And this is at Camp --

MS. LEAMON: Harper.

SEN. NELSON: -- Harper, where the assault took place. So they gave you this thumb drive of photographs before you left to come home, or was this -- well, when you left --

MS. LEAMON: (Crosstalk) --

SEN. NELSON: -- Camp Harper to go to Camp Cedar.

MS. LEAMON: Yes.

SEN. NELSON: Okay, and the fellow in the middle?

MS. LEAMON: He's security for Camp Harper.

SEN. NELSON: Is he the chief of security?

MS. LEAMON: We had one security person there at the time.

SEN. NELSON: Uh-huh, okay.

MS. LEAMON: And the one at the end is --

SEN. NELSON: With his hands cupped over his ears.

MS. LEAMON: Is security for the T sites, the head of security for the T sites at Camp Adder.

SEN. NELSON: And are any one of those your assailant?

MS. LEAMON: No, sir.

SEN. NELSON: No. They're not there. So these are all employees at Camp Harper.

MS. LEAMON: The two -- the one in the middle and the one far right with the hands over his mouth are at Camp Harper.

SEN. NELSON: And the one at Camp Cedar with his hands over --

MS. LEAMON: That's Adder.

SEN. NELSON: At Camp Adder with his hands over his ears is --

MS. LEAMON: Is the head of security.

SEN. NELSON: -- the head of security.

MS. LEAMON: Correct.

SEN. NELSON: And so we've got a security guy in the middle, a security guy with his hands over his ears, and we have KBR contractor with his hands over his mouth.

MS. LEAMON: Correct.

SEN. NELSON: Now, what does that picture suggest to you?

MS. LEAMON: That picture says not to say anything. That picture has --

SEN. NELSON: See no evil; hear no evil; speak no evil.

MS. LEAMON: And while I was at Camp Harper, I had talked to the person in the middle, and he said -- I don't know that he had any knowledge of what happened to me, but he did have knowledge of other things. And he told me, if you don't say anything, everything will be fine, just don't say anything.

SEN. NELSON: And he actually said that to you --

MS. LEAMON: Yeah.

SEN. NELSON: -- before you left Camp Harper.

MS. LEAMON: Yeah.

SEN. NELSON: What did you hear about other sexual assault cases that had received media attention?

MS. LEAMON: I had not really been aware of any other sexual assault cases that had any media attention until after I had returned to Camp Cedar and had talked to Dan Ross a couple of times. At that time, he advised me that there were similar cases, and that time he also -- and I looked up information on Jamie Leigh Jones who also was assaulted and raped and drugged in Iraq, working also for KBR.

I had the opportunity to meet Jamie Lee and her attorney last week when I returned home from Iraq. And we haven't had much of an opportunity to speak to each other, other than to say hello and give each other a hug. And then I met Mary Beth yesterday, which --

SEN. NELSON: All right. I just want you to know, you two ladies, this is very courageous of you to step forward. And Mrs. Leamon, you have only done one interview by radio, and you did under the pseudonym of Lisa Smith, and it's very courageous for you to step forward.

And I'm hoping that out of the drama of you all telling what has happened to you that we can start to focus that we've got a problem that justice is breaking down here.

All right, Mr. Fidell, what do you think about all this? Mr. Fidell is senior partner in the firm of Feldesman, Tucker, Leifer and Fidell here in Washington.

SEN. NELSON: That's correct. But the latter, which was just two months ago, clearly is within the statute of which the Uniform Code of Military Justice could apply.

MR. FIDELL: That's correct, and if I can play lawyer for a second, it has occurred to me that the 2006 Amendment may actually not have been necessary if the Averette case, which I referred to in my prepared statement, would no longer command a majority on the U.S. Court of Appeals for the armed forces. And --

SEN. NELSON: Was that the Iraqi-Canadian citizen?

MR. FIDELL: No. This is the case going back to the Vietnam War where the then Court of Military Appeals held that a declared war was necessary to exercise jurisdiction over a person serving with or accompanying an armed force in the field.

It has occurred to me that let's a say a creative military prosecutor or commanding officer might have tried to bring criminal charges under the UCMJ with respect to that offense, even before Senator Graham's amendment became law, but that's retrospective. I think the interest here should be prospective.

SEN. NELSON: But --

MR. FIDELL: I am concerned about --

SEN. NELSON: -- clearly Mrs. Kineston's case in 2004 would have been covered by the law that was passed in the year 2000.

MR. FIDELL: Yes, the Military Extraterritorial Jurisdiction Act, yes.

SEN. NELSON: The MEJA base, and yet, we'll get testimony over here, but it appears that not one of these cases has been indicted or convicted that involves sexual assault --

MR. FIDELL: I don't get it.

SEN. NELSON: -- on a civilian woman.

MR. FIDELL: I don't -- (crosstalk) --

SEN. NELSON: And yet, the law has been there since 2000.

MR. FIDELL: Right.

SEN. NELSON: So what do you think about these MEJA prosecutions?

MR. FIDELL: I've been, let's say, baffled why there hasn't been more activity under that statute. That doesn't mean that every case should be brought to a grand jury. It doesn't mean that every case should be brought to court, but with this amount of sheer industrial activity and human interaction, an enormous work force in a clearly wild environment -- I mean, I think we can all agree on that, with certainly some measure of criminality in an otherwise, by the way, probably very law abiding work force.

I mean, let's -- I think we can all stipulate that overall it's a very law abiding work force, just as the military is a very law abiding work force. But there's some level of criminality that occurs when the numbers of people involved go up.

I think there is a real problem in transparency, and transparency is one of the components of public confidence in the administration of justice, and accountability. Somebody who has been in a position to make the decisions as to who should get prosecuted for what during the campaign in Iraq has some explaining to do.

It may that there is a perfectly good explanation, Mr. Chairman, for the lack of activity. That may well be.

SEN. NELSON: (Crosstalk) --

MR. FIDELL: However, I think it is incumbent on the authorities to explain what has been done with particular respect to these cases and more broadly. The one other thing that I wanted to mention, and then I'd be happy to respond to any questions -- I was disturbed at what seemed to be a gap in the victim and witness arrangement.

The military has a quite a robust Victim and Witness Assistance Program. I've represented people in trouble with the military, and I've been impressed by the tenacity of the Victim and Witness Program. There are many skilled, wonderful people who are dedicated to helping women and men who find themselves victims of assaults or other misconduct.

If there is a gap in the reach of the Victim and Witness Program such that individuals such as these ladies or other people who are part of the civilian work force in Iraq are assaulted by individuals who are subject to federal criminal law, one way or the other, whether it's Special Maritime and Territorial Jurisdiction, whether it's MEJA, or whether it's the UCMJ -- there has to be a coterminous program of victim and witness protection.

You can't have a sort of no man's land, where like the old insurance ad, you know, "You're in good hands." You're in no hands at all if you're a victim. I think that is something that, if I were advising the committee, I would suggest some attention be paid to.

SEN. NELSON: Well, you put your finger on the very reason that we're having this hearing is that something is not working. And there are three laws on the books, and you just named them, one with maritime that has jurisdiction over active military situations; the one that was passed in 2000, which directly gives jurisdiction, called MEJA; and then the 2006 legislation that is now that involves the Uniform Code of Military Justice, so we clearly have the laws on the books.

So what I want to do now is I want to get the second panel, and I want us to discuss this from the members of the Department of State, Department of Defense, and Department of Justice.

Now, you see why I ask you all, as the panel, to go second because I wanted you to hear what is live testimony about real people in real-life situations that something is wrong. And there are others, and one of them is a visitor in the audience, and we could go and on and on. So let's get into that. The committee will take a five-minute recess while we then have the next panel come up.

(Recess.)

SEN. NELSON: (Off mike) -- we will resume.

And we are privileged to have the Honorable S.P. Mandelker, Deputy Assistant Attorney General from the Criminal Division of the Department Justice; Mr. Gregory Starr, Acting Assistant Secretary, Bureau of Diplomatic Security and Acting Director of the Office of Foreign Missions, the Department of State; Mr. Robert Reed, Associate Deputy General Counsel for Military Justice and Personnel Policy in the Office of the General Counsel of the Department of Defense; and Mr. John B. Wiegmann, Assistant Legal Advisor for Management, Department of State.

So thank you all. Needless to say, when you have testimony like we've just heard from some courageous women who dared to step forward, it's riveting, but it also exposes a flaw in the system. Something's not happening right, and that's what I want to explore with you. I want to do this in a respectful way, a nonjudgmental way. But at the end of the day, I want us all to come up with some suggestions of what we're going to do so we correct a system that is flawed.

Now, I want you to put up this chart, and I want to show you something here. I want to lay the predicate for this. Put it right up here. Put it up on the top of that. There you go. All right, of the disposition of sexual assault cases in both Iraq and Afghanistan, there has been, of civilians -- now you can see military ends up having 684, but you can see of civilians, 26. Three were found to be unfounded, but the remaining 26 -- the remaining 23, well let's see what happened.

Insufficient evidence, seven; pending, two; administrative action, 10, and administrative action includes military discharges, reprimands, barred from post, employment terminated, and deported; referred to a foreign authority, two; and no action taken. Out of the civilian contractors, there's not one that's prosecuted. So we want to get into that. We want to found out why.

So let me turn to you -- by the way, all of your statements will be put in the record. We have some other senators that want to come and join us on this, and I will, as a courtesy, defer to them when they come.

But let me start out, Mr. Starr. How many cases involving sexual assault of a U.S. contractor in Iraq or Afghanistan has the Bureau of Diplomatic Security referred to the Department of Justice?

MR. STARR: I believe that's four, sir, if you'll give me one second. No. We have had four allegations investigated by Diplomatic Security. Three have been referred to the Department of Justice. The fourth instant was addressed administratively.

SEN. NELSON: And of those four, have any been acted upon?

MR. STARR: My understanding is that the Department of Justice is acting on those three, sir, but I'd have to defer to the Department of Justice for questions as to exactly where they are in the process.

SEN. NELSON: Okay. We'll get to that. If a crime, Mr. Starr, between two contractors were to occur on a military controlled facility or base, would the Department of State have the authority to investigate this?

MR. STARR: It appears -- the answer to that is factually yes, sir, because in fact that has happened. We did investigate at least one case that was taking place on a military controlled base. It probably would be better had it been investigated by the Department of Justice, but the particular circumstances were such that my agents responded and did investigate.

SEN. NELSON: And when you say, "it would have been probably better," tell me about that.

MR. STARR: I believe that the Department of Justice -- sorry, excuse me, sir. The Department of Defense should have their agents present and investigating. But as it has been spoken about, Iraq is a very growing and tough situation.

Not everybody is always available or there at the particular time. And I will simply say that the United States Department of State agents that are overseas for Diplomatic Security Service are available and will pick up if there is a gap that has to be filled. But we are primarily there for protection of American citizens working on the United States diplomatic premises and residences.

SEN. NELSON: You said that there were four referred to the Department of Justice for action.

MR. STARR: Three, sir. We've investigated four cases. Three were referred to the Department of Justice.

SEN. NELSON: Okay. And you don't know of what action has occurred. Has there been a conviction on any one of those three?

MR. STARR: Not that I'm aware of, sir.

SEN. NELSON: Do know if it's -- has there been an indictment, a charge on any one of those three?

MR. STARR: I'm aware that there have been grand juries convened. There has been action on the part of the grand jury, but I would -- I'm -- would prefer not to go into the particulars of any cases that the Department of Justice is handling. I think Justice might be better to answer that, sir.

SEN. NELSON: Okay. Do you know if when you referred those that they were referred by your department, the Department of State, to Justice for prosecution using the MEJA jurisdiction?

MR. STARR: Yes, sir, that is how we would refer these for prosecution.

SEN. NELSON: Okay, but no -- you don't know any more than that, okay. All right, Mr. Reed, in your department, the Department of Defense, how many cases involving the sexual assault of a U.S. civilian has the DOD investigated?

MR. REED: (Off mike) -- sorry. I think the statistics you have there are from the DOD IG as to what was investigated. So I would defer to the IG's statistical report as to what the Military Criminal Investigative Organizations investigated.

SEN. NELSON: How many such cases has DOD referred to the Department of Justice?

MR. REED: There have been eight cases that have been forwarded for consideration under the MEJA statute. All eight have been referred to the Department of Defense -- or Department of Justice.

SEN. NELSON: And you sit in a part of DO -- in the Office of the General Counsel that would know about this. Of those eight that have been referred to Justice for prosecution by the Department of Defense, how many convictions have there been?

MR. REED: One.

SEN. NELSON: Have -- how many were there indictments or charges brought against?

MR. REED: I don't know the precise figure on that. I keep track of them under the label of pending so that after I refer them to the Department of Justice I list them as pending until I find what the ultimate disposition is. So I have three of those that are -- that I'm tracking as pending.

I have one case that's a juvenile out of the Far East that's not applicable to Iraq that there was a conviction in as well. And I have three cases that my information or the information provided to me would indicate that the cases were declined due to insufficient evidence or other problems related to the case in question.

SEN. NELSON: The one case that you said that got a conviction, was that in a civilian or a military court?

MR. REED: It was in civilian court.

SEN. NELSON: And do you know how many cases would have been prosecuted in a military court?

MR. REED: Civilians?

SEN. NELSON: Yes.

MR. REED: I would state that there have been none, because of the Supreme Court and the United States Court of Appeals for the Armed Forces decisions that required prior to 2006 that there be a congressionally declared war and would have a slight disagreement with Mr. Fidell's analysis.

SEN. NELSON: All right. That's with regard to the law that was passed in 2006.

MR. REED: Correct, sir.

SEN. NELSON: Right. Now in the cases in which assault has occurred on DOD facilities in Iraq or Afghanistan, civilian victims have reported that military investigative authorities have told them that they could not assist them. Is this correct?

MR. REED: I don't know what the investigators told the victims. I can say that depending on when the date of the crime was committed and when and what the category or person was that was suspected of committing the crime, since the law has evolved and changed since 2000 up to the present, the answer could slightly change as to who has ultimate prosecutorial responsibility and associated with that is investigative responsibility. However, as a general proposition, the military criminal investigative organizations normally would respond to the report of or the complaint of the crime that was committed on a military installation in order to at least preliminarily respond to the complaint until such time as the details of the complaint and the identity and affiliation if you will, of the alleged offender was determined. And that would, in turn, dictate in large measure the subsequent course of action to take following the investigation.

SEN. NELSON: Well, let me ask you this. You're legal counsel to the department of defense. Would DOD have the authority to go in and take all the cases that were not prosecuted by the Justice Department and prosecute them yourself under guidance provided by the secretary of defense?

MR. REED: If you're talking strictly about DOD, civilian contractors, or other contractors, the answer would be no, unless the offense was committed on or after the effective date of the 2006 amendment, which was October 17, 2006. Prior to that the general consensus of opinion was that the Supreme Court and the United States Court of Appeals for the Armed Forces stated that absent congressionally declared war civilians would not be prosecuted in military courts in peace time and the analysis of that and the interpretation of that for the last fifty years has been essentially that civilians being prosecuted in courts marital was problematic at the least.

SEN NELSON: What is your professional opinion that it is the obligation of a military officer, non-commissioned officer, or a DOD official to report and then prosecute if possible, or assist when given evidence from a civilian that a crime has been committed?

MR. REED: I would say that has generally been the rule in my experience that they are in fact investigated, they are in fact looked at for possible prosecution based upon the weight and quantum of evidence. And a myriad of issues that come into play when you're talking about a very sensitive situation such as sexual assault prosecutions involving victims who may or may not be traumatized by the events that occurred to them and the events that they are concerned about as a witness in a public courtroom.

SEN. NELSON: You must have been warned as a DOD counsel by the dramatic testimony by Mrs. Kineston that it was the military police that responded.

MR. REED: I believe that by and large, and there are always exceptions, Senator, but by and large military police and military criminal investigators do in fact respond to reports and information brought to their attention that a crime, especially a serious crime, has been committed within the area of responsibility of the commander. Granted, there are exceptions, there are some people who for whatever reason don't do what we would expect them to do, but by and large, over the years and across the spectrum of crimes that are committed by persons on or near a military installation, the military does in fact respond and thereafter, after they've gathered the facts and identified the individuals involved or suspected to be involved, then try to get the appropriate authorities if it's not the military involved in the case.

SEN. NELSON: Likewise, you must have been (warmed ?) to hear as Mrs. Lemon was shuffled around. That it wasn't until she got into the hands of the military, the criminal investigative division, and even more specifically until she got to the military doctor that she started getting some attention.

MR. REED: That was her testimony and taking it as it is, she appeared to be pleased with the care that she received from the hospital physician that treated her and generally the responsiveness of the CID once they were notified of the situation. So I guess the answer is it would appear that they responded appropriately under the circumstances.

SEN. NELSON: And yet in both cases, its gotten lost in the system. Certainly with regard with Mrs. Kineston because it was -- the assault was back in 2004. And with regard to Mrs. Lemon, although it was two months ago, she has no evidence thus far that there's any prosecution.

Let me ask you this. Why --

MR. REED: Senator the fact that she is unaware of what the actions are being taken regarding prosecution does not mean that action is not being taken, and the fact that an investigations have not been conducted nor and/or are ongoing. So --

SEN. NELSON: I hope that's the case with Mrs. Lemon, but certainly with regard to Mrs. Kineston, nothing happened.

MR. REED: In 2004, the MEJA implementing regulations by the department of defense were not in effect. They didn't take effect until March 3, 2005, and the UCMJ jurisdiction of 2006 was not applicable.

SEN. NELSON: You're telling me that a law that was passed in 2000 was never implemented until March 2005?

MR. REED: That's correct. MEJA was passed in November 11, 2000. In 2001 we established a working group because the statute required us to create regulations in conjunction with the department of state and the department of justice and had a built in over-sight responsibility by the judiciary committees of both the house and senate giving them a six month period of time in which to review the regulations that were developed. The department in fact established in early 2001 a very robust working group inter-agency, multi-agency representatives on that.

Unfortunately, on September 11, 2001 some certain things happen to the department of defense and it involved all the other Departments, both Justice and State, as well who were part of that team, and all of the parties who were focused on coming up with the implementing regulations at that time were pulled back for 9-11 and post 9-11 reactive responsibilities. In 2002, I reinstituted development of the MEJA regulations and wrote them myself and then thereafter we then coordinated with the department of justice, department of state, there were several backs-and-forth between those Departments to come up with regulations in which we could get consulted. We then transmitted them to the judiciary committees of both the Senate and the House, gave them six months in which to review and comment, and thereafter that to make sure there were no changes that were required through that process, then we had to proceed with the DOD normal processes for implementing instructions and regulations within the department, and develop a corresponding code of federal regulations to go along with that to be filed in the federal register.

All of that process took place and ultimately they were published in the federal register, they were published in the department of defense regulations with an effective date of March 3, 2005. And I have a more detailed chronology if you need that in my office, but that in a nutshell is a summary of the events that interrupted and postponed and created a difficult situation for the Department to come up with regulations from a tried Departmental and Congressional over-sight perspective.

SEN. NELSON: And you think justice was served as a result of all that delay?

MR. REED: I wish the process by which we could have come up with our regulations weren't required by that process. I wish also that the events of 9-11 had not occurred.

SEN. NELSON: Are the eight cases that you referred to of sexual assault of civilian contractors?

MR. REED: Yes they are. No, excuse me, they're -- one is a dependant juvenile. That was the one from the far east. The rest, the other seven are contractors. Some are third country nationals and others are U.S. nationals.

SEN. NELSON: Are they just MEJA, non-sexual assaults, or are we talking about sexual assaults?

MR. REED: This is where the main offense listed is sexual assault. That doesn't mean it's the only offense that somebody committed, but to -- as you know when somebody may have committed three or four different offenses, you choose the major offense by which to categorize the case. That's the categorization that I gave them.

SEN. NELSON: I am very pleased that my colleague, Senator Feingold, who has a yearning to understand all of this as well, has joined us. And as a courtesy I want to flip it to you and you've got somewhere you've got to go, so please -- and I'll just jump back in after you finish.

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SEN. NELSON: I want you to know how much I appreciate you coming here and your interest in this subject. At the end of the day we're trying to make the system work like it's supposed to, and something's not working.

I'm curious Mr. Reed, why where an incident occurred before 2006 as was the case here with Mrs. Kineston in 2004 -- why is prosecution barred under the uniform code of military justice which was amended in 2006, in a 2006 law, if the case hadn't been prosecuted yet. Is there a statute of limitations problem?

MR. REED: Well a statute of limitations would not normally be a problem. The general proposition is that both the person and the offense need to be subject to the code at the time for UCMJ jurisdiction to be applicable. And so even thought the offense may have been a codal offense, the person at the time that the crime was committed was not a person subject to the code. And I think that would be the argument if you will or the position that people would take that the person would not be prosecuted subsequently.

SEN. NELSON: How about the third law? The maritime and territorial jurisdiction?

MR. REED: That particular law was a patriot act amendment in 2001 to address US citizens crimes committed by or against US citizens on a military installation I believe.

I would primarily defer to Mr. Wiegmann on that, but that is a separate if the person and the offense otherwise qualified it could be another basis for extraterritorial application of prosecution in federal district court but it is not a basis for prosecution under the UCMJ.

SEN. NELSON: In fact, Mr. Wiegmann, didn't you have a CIA contractor convicted under that provision of law for the assault of a detainee in Afghanistan?

MR. WIEGMANN: I think Ms. Mandelker can address that but I think that is correct. It just depends on where the offense occurs under the special maritime territorial jurisdiction. As Mr. Reed said, it has to occur on diplomatic premises, military base, military installation, I'm not quite sure where exactly Mrs. Kineston's offense occurred, but that would be the issue. If it did occur in one of those locations it might be subject to US jurisdiction.

SEN. NELSON: Okay.

Let me go back to you Mr. Reed. What kind of pre-deployment training on sexual harassment is required of DOD contractors?

MR. REED: It is my understanding that there are provisions which would indicate that contractors are required to abide by all the laws, and regulations applicable during their contractual relationship with the department. And I believe there is a reference to sexual harassment in a requirement that prior to deployment they be referred to the sexual harassment website to get information on that.

But that's really not, I think, the best way I would like to answer that question for you is that we have recognized that we need to emphasize with contractors the requirement that they notify contractor employees that these various laws are applicable including the laws applicable to sexual assault and that they provide training to those contractors pre-deployment and make it available upon arrival in the deployed location to take local conditions into consideration. We have taken a position to develop those. We are in that process right now. The effort is to increase awareness and therefore enhance accountability and ultimately hopefully deter this kind of misbehavior as employees under contracts with the department of defense. So that is a federal acquisition regulation type of procedure required in order to place the requirement on that.

Now we have also, in the interim, publicized the applicability of the DOD rules and regulations regarding prohibited sexual harassment and sexual assault. They had been implemented in the army as of March 18, 2008 in the regulation further implemented the DOD implementation, and it's my understanding MNFI in Iraq has made that a requirement within the AOR and that notifications be publicized in public places as to where persons who become aware of, or may be subjected to, sexual harassment, sexual assault can go for help as well as where to report incidents of that nature.

So to fully answer your question, that we have a program ongoing right now, and anticipated to expand the awareness and the knowledge of all folks who joined the armed forces.

SEN. NELSON: Certainly the deficiencies that have been brought out -- and let amend your last statement there -- to make aware members of the armed forces. We're talking about making aware civilian contractors as well who are there as a result of the United States Armed Forces.

MR. REED: I should have said total forces because total forces include our civilian employees and our civilian contractors as well as the members of the armed forces that we bring to the fight, so to speak.

SEN. NELSON: Okay.

Now, I think what you've said is certainly a step in the right direction, but doesn't -- isn't' the question so obvious? We're in the fifth year of a war. Why wouldn't we have made sure that every member of the total armed forces was aware of what they need to do about these assaults? Let me ask you this. Is there a requirement in the contracts that requires contractors to provide training on how to report and handle sexual assaults while they are deployed?

MR. REED: I don't believe there currently is, although, as I mentioned, the department has preceded -- is pursuing that to put it in a federal acquisition regulation system in order to make that a requirement and the department stands ready to assist the contractors in the formulation of what that training ought to consist of.

SEN. NELSON: Well, you're the office of legal counsel. It seems like to me as a result of what you might have learned today, that might be something you want to insert in your contracts.

MR. REED: We are pursuing that, Senator, thank you.

SEN. NELSON: I don't want to be a cynic and respond to you by saying, five years later.

Let me ask you this. In one of the reported cases -- this is one of the reported cases in the news -- the alleged victim had a rape kit that was completed by an army medical officer shortly after the rape. And then the rape kit was turned over, allegedly, to KBR. My question to you is, what criteria guided the decision by which the investigative authorities in Iraq and Afghanistan or in any other foreign deployed locations, turn cases over to the victim's employer for further identification? When the military has the evidence, doesn't the military have a responsibility to keep that evidence?

MR. REED: Well, I can't respond at that particular point and time, but yes, the position ought to be that when the military provides treatment that results in forensic evidence of a crime that was committed that they ought to have the evidence turned over to the military criminal investigative organization that's available until such time as he facts and circumstances of the alleged perpetrator and the jurisdiction of the case is sorted out and then hand it over to the appropriate authorities for purposes of doing that. Whether or not such were available at the specific time in question, I can't answer that.

SEN. NELSON: Well of course you can't. No, I'm trying to get to the bottom of this whole thing.

Let me give you another one for example. Now where the military has the evidence and they turn it over to contractors' security control, shouldn't you have a formalized system in place in order to ensure the integrity of the evidence and the follow up on these cases?

MR. REED: I don't believe its protocol to turn them over to non-law enforcement officials --

SEN NELSON: I would agree with that. In this case it did happen.

MR. REED: And I also don't believe that the military criminal investigative agencies who obtain evidence under chain of custody would not turn it over under chain of custody procedures. And I'm not aware that that occurred in this case or not.

SEN. NELSON: That's one of the cases that I cited at the outset in my remarks.

Well let me ask you this. If there's evidenced suggesting that a serviceman, a U.S. member of the armed forces, sexually assaulted a civilian contractor and that evidence is told to another U.S. service man, what should be the process by which point by point, step by step that the evidence would be protected? You're the legal counsel.

MR. REED: It depends on the capabilities and qualifications of the soldier, or military members you're talking about, but if you get a military law enforcement or official involved in that process, if they are such, then they should take the evidence under chain of custody purposes, preserve it, protect it, secure it, and turn it over to appropriate authorities for consideration of prosecution. If they are just a soldier or an airman or a sailor who has no training or experience in evidence collecting and/or forensics, that could be problematic. So the answer depends on who those military members are and their backgrounds and experience, and responsibilities. But once it's in the hands of a law enforcement community official, then they could be taken such evidence under chain of custody and preserving it for possible persecution down the road.

SEN. NELSON: Okay now, Mr. Reed, this is your chart.

MR. REED: No it's not. That's the IG's chart.

SEN. NELSON: Well, as department of defense.

MR. REED: Oh. Okay.

SEN. NELSON: You're here as a representative of the department of defense. And this is the inspector general of the department of defense. Now, you say of the victim being a US civilian that those twenty-six sexual assault cases you know of no convictions on there?

MR. REED: Sir, that list is by victim status. Whether or not a person is persecuted is determined by the offender status. So I don't know. You have a lot of U.S. civilian victims there, but I don't know whether the perpetrator of the offense is a military member, a DOD civilian, a non-DOD civilian, a contractor, a non-DOD contractor, or whatever and it's that factor that is determinative as to whether or not there's jurisdiction under the federal code and the UCMJ code. The status of the victim does not determine the jurisdiction.

SEN. NELSON: Well, your inspector general in the department of defense argues that these are the ones that would have had the connection with the military and the -- we're just trying to get some action here.

MR. REED: I understand sir, and I don't disagree with you. I believe that based upon the IG's information as to the victim's status, he's telling you that they had investigations that involved these victims in that status. What it doesn't tell you is what the status is of the alleged offender which is what you would use to determine the jurisdiction of those cases. Many of the cases that are no-action might be because the individual was not subject to U.S. laws and was not subject to the UCMJ. I can't answer that question. It could have been a foreign national that was the perpetrator. So the information tells you of the number of cases that the military criminal investigators ran that involved a victim of sexual assault by the military criminal investigative organizations in those two locations, but it doesn't specifically identify the basis in-personum jurisdiction over the individual.

SEN. NELSON: You see the bottom of that chart? It says investigated subjects by affiliation.

MR. REED: I see that.

SEN. NELSON: Can you move that chair? Yeah, just put it up.

Does that answer your question?

MR. REED: It depends on -- I assume, I have to assume that they correspond with -- (inaudible) -- in table number one, but I don't know for sure, and I don't know which case they latch up to. But those --

SEN. NELSON: You know what I'm getting at.

MR. REED: But those are categories of jurisdiction. U.S. civilian if they're subject to MEJA, and U.S. military if they're subject to UCMJ or MEJA.

SEN. NELSON: Alright, let's just get -- Ms. Mandelker.

MS. MANDELKER: Yes.

SEN. NELSON: With regard to your department of justice, how many people has justice successfully prosecuted for sexually assaulting a U.S. civilian contractor in Iraq or Afghanistan?

MS. MANDELKER: For sexual assault, Senator, I don't know of any convictions. I do know that we have active investigations.

SEN. NELSON: And how many of those active investigations?

MS. MANDELKER: It's upwards, somewhere between four and six I believe is the number.

SEN. NELSON: And as a result of today you say that Mrs. Kineston's is one of those?

MS. MANDELKER: Again, Senator, today's the first day that we -- Mrs. Kineston's testimony's the first time that we've heard of such a case. We will absolutely reach out to Mrs. Kineston. We in fact had a good discussion with her lawyer in the recess and I can give you my word that across the board we remain very committed to investigating these cases and to prosecuting these cases.

I would like to point out one very important --

SEN. NELSON: Let me ask you about Mrs. Lemon before you go on. What about her?

MS. MANDELKER: We do have an active investigation of that case, as you know. It just recently came to light, but we do have an active investigation.

SEN. NELSON: Okay, and of course you can't comment on the investigation. But that's news. You do have an investigation going on at the department of justice on Mrs. Lemon's case?

MS. MANDELKER: That is correct.

SEN. NELSON: Let me ask you -- you were going to say something and I interrupted you.

MS. MANDELKER: Well, I just want to point out because I think it's a very important to note, as Mr. Starr noted at the outset, these cases are very important cases. The allegations are very serious. At the same time, it can be extremely difficult to investigate these cases. As you heard today, it is an unfortunate fact that these crimes occur in a war zone. And there are numerous difficulties, of course, with investigating a case when the conduct occurred in a war zone. These are dangerous areas, we do make -- we do send our investigators out to investigate these cases, I've personally been involved and the decision to send our agents out to investigate these cases, to collect evidence, it's very important that we do so, but we should applaud the men and women who take on these investigations because I can tell you that we send them out, they do great work, we worry about them when they're out there, and it needs to be recognized that time unfortunately not on our side when you're talking about a sexual assault case, but we face some very difficult obstacles and it is also unfortunate that we don't control the time table by which we can go and investigate these cases.

SEN. NELSON: Well of the four to six cases that you say that are open investigations, how old are these investigations?

MS. MANDELKER: Senator, I'm simply not at liberty to discuss pending investigations.

SEN. NELSON: Well, of course the concern would be that they've been going on for years and the perpetrators of course, would not be brought to justice if they are responsible.

Well, knowing that the evidence is so difficult collect, and to preserve, why is there no office from the department of justice deployed to the theatre?

MS. MANDELKER: We do in fact, have both prosecutors and agents in theatre. We have prosecutors here at home who are working on these cases, so I can tell you that the individuals who are in theatre are only dedicated to MEJA cases but we do enlist their help and their support and they have provided us with a great deal of support.

SEN. NELSON: I can tell you that I think that I speak for the committee that that's not good enough. In a war zone where evidence is hard to collect and it has a way of disappearing, and the preservation of that evidence is necessary, I think you all ought to consider putting an office forward in the theatre.

MS. MANDELKER: Let me say of course it's very often the case that the -- it's always the case I should say -- that the principle law enforcement agents that respond to the scene are either in the military or at the state department and they as well have the number of dedicated agents in the field who are working on these cases. So there is a good deal of resources available in theatre, in Iraq, to handle these investigations.

SEN. NELSON: I would beg to differ with you on the basis of the testimony that we received this morning.

Let me ask you about your coordination with the department of defense and the department of state. Now this is a response that I got from your department last night. Quote "We coordinate closely with the referring agencies and in most instances the referring agencies play a significant role in the investigation in any prosecution. The department, in this case of justice, is aware of the small number of allegations of sexual assault cases by women who worked as government contractors in Iraq." End of quote. So you consider twenty-six cases as a small number?

MS. MANDELKER: Again, I think, Senator, that you heard from the other departments the number of referrals that have been made to the department of justice with respect to sexual assault in Iraq. I think most of these cases are -- have to do in fact with the military. And I don't know if those cases reflect cases again where we would have jurisdiction to prosecute.

SEN. NELSON: Well in your testimony, you state that MEJA contains a number of important restrictions. Has the department of justice sought legislation to alleviate any of those restrictions?

MS. MANDELKER: We have. We do support legislative efforts to provide greater accountability for unlawful acts committed by contractors in Iraq. We are working with the congress. We will continue to work with the congress on such efforts.

SEN. NELSON: Are there any other restrictions in your testimony this morning, in your written testimony that you want to change, or do you support those restrictions?

MS. MANDELKER: Again Senator, we are working with the Congress. Legislative efforts to amend MEJA to ensure that more contractors are accountable in Iraq.

SEN. NELSON: It's my understanding that in one of these cases that your department instructed the state department upon referral of a potential MEJA case to cease any further investigation in that case and you prohibited the state department from discussing the matter with anyone. Is that true?

MS. MANDELKER: Again Senator, I don't have that information and I --

SEN. NELSON: You don't know?

Well then I would like to keep it open for the record for you to answer that and give, if that was true, any justification for stopping any further action by the department of state, if you will respond in writing to the committee.

Your testimony describes MEJA cases in which convictions have been obtained or charges brought, but every one of those involve charges other than crimes such the possession of child pornography or sexual abusive contact. And I want to applaud you to enforce the law in those cases. But that's not why we're here today. We're here for the sexual assault cases. And thus far you've told us now that there has not been one conviction under MEJA which you have and you just told us that you have one open investigation on this case that was presented to us today.

If you will take from this hearing the fact that the department of defense inspector general has identified those twenty- six sexual assault cases involving US civilian women, between 2002 and 2008, and not one of them appears to have been prosecuted. So is there anything more that you want to add about the lack of a prosecution in any of those cases?

MS. MANDELKER: Again, I am not familiar with the cases represented on the chart. I am only familiar with cases that have been specifically referred to the department of justice. I want to assure you that when get such referrals, we take those referrals very seriously. We undertake active investigations, as I already mentioned it can be extremely difficult to conduct an investigation in a war zone, but we are committed to taking those cases. The department in fact has a long history of success when we're talking about prosecuting sexual offenders. We have a long history of success both domestically and abroad. We prosecute numerous child offenders. We have in fact under MEJA. We prosecute sex traffickers, we prosecute sex tourists. We take sex offenses very seriously and there's no exception when it comes to sexual assaults of contractors or civilians in Iraq.

SEN. NELSON: Well, one of the reasons of this hearing was to make you aware and you now are aware and this an inspector general report from the department of defense dated April 3 in a letter to me. So I would suggest to you, in our capacity of oversight of the executive branch of government, that you coordinate with the department of defense and the department of state as to whether or not some of these cases have fallen through the cracks. For me to say anything more would be superfluous. You know what the problem is. Let's get it solved.

Thank you and the meeting is adjourned.

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