Hearing of the Crime, and Homeland Security Subcommittee - "Enforcement of Federal Criminal Law to Protect Americans Working For U.S. Contractors

Interview

Hearing of the Crime, Terrorism and Homeland Security Subcommittee - "Enforcement of Federal Criminal Law to Protect Americans Working For U.S. Contractors in Iraq"

HEARING OF THE CRIME, TERRORISM AND HOMELAND SECURITY SUBCOMMITTEE - "ENFORCEMENT OF FEDERAL CRIMINAL LAW TO PROTECT AMERICANS WORKING FOR U.S. CONTRACTORS IN IRAQ"

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REP. LOUIE GOHMERT (R-TX): Thank you, Chairman Scott. And I do appreciate your holding this hearing on this very important issue.

And I want to thank our witnesses for taking time out of their busy schedules to be with us today.

Professor Horton, thank you.

And I especially want to welcome my good friend -- dear friend and fellow former district judge from Texas, Congressman Ted Poe.

And also Ms. Jones, thank you for being here and for graciously agreeing to share your story. I admire your courage in coming forward. I know this is not easy, to come into a public forum and do this. As Ted, we've seen people have to do this kind of thing in order for justice to be done, and we believe that by your doing so hopefully we will move justice in the right direction.

But you have also given a voice to women who have been the victims of sexual assault in Iraq and also Afghanistan, and I hope today's hearing will shed additional light on the disturbing trend of American women being victims of sexual assault outside our national boundaries. I am deeply troubled by what happened to you in Iraq. No one should have to suffer that kind of abuse. And now, after two years, we are hearing -- and I got an e-mail today indicating -- that the Justice Department could not come forward and testify today because the matter is finally under investigation, and I applaud any efforts Attorney General Mukasey will make in that direction. We got a new regime, and it looks like they're finally moving in the right direction.

The members of this panel are not privy to all the details about what, if any, investigation has occurred. According to news accounts, the State Department's Bureau of Diplomatic Security investigated the assault, turned its findings over to the Department of Justice. And like I say, they're now assuring us that they're investigating the matter.

At the same time, we're learning that KBR may have been instructed by the U.S. government to cease its investigation, but we don't know who gave that instruction. It also appears that physical evidence of the assault was subsequently lost or destroyed. I hope that it is not too late to see justice done in this case. No one is above the law. No one should be above the law, whether here in the United States or in Iraq.

In recent years, Congress has addressed the application of federal criminal laws to U.S. persons overseas. In 2000, Congress passed the Military Extraterritorial Jurisdiction Act of 2000, also referred to as MEJA -- mee-jah -- to the extend --- to extend the application of U.S. federal criminal law to acts committed by members of the military, civilian employees of the military, and dependents accompanying the armed forces overseas. Congress again amended MEJA in 2005 to apply it to employees and contractors only, quote, "to the extent such employment relates to supporting the mission of the Department of Defense overseas." The authority of the U.S. government to prosecute the assault on Ms. Jones turns on whether those accused of the attack were employed in support of a DOD mission overseas. There seems to be some dispute amongst the expert(s) about whether MEJA applies in this instance. But the simple fact is that we don't have enough facts to make the determination yet.

In October, the House passed H.R. 2740, the MEJA and Enforcement Act of 2007. This legislation expands MEJA again to allow U.S.criminal prosecution of all federal contractors operating in an area or in close proximity to an area where the armed forces are conducting a, quote, "contingency operation," unquote, and requires the FBI to establish overseas theater investigative units in areas where contractors are operating. Hopefully the Senate will act quickly on this legislation.

But I look forward to hearing from today's witnesses and appreciate your time in being here.

Thank you. I yield back.

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REP. GOHMERT: Thank you, Mr. Chairman.

And to follow up, Professor, on some of the chairman's questions -- MEJA does seem to leave some questions, and so I want to ask, specifically, your opinion on whether part of this offense fell in cracks within the MEJA existing at the time of the alleged incident. And I say "alleged," I believe there was an incident.

MR. HORTON: Again, I think the core of this incident certainly would be covered by the MEJA. It's -- what I'm concerned about is when we get the -- when we finally discover -- if we do finally discover who all the perpetrators are, if it turns out that some of those perpetrators are not in-country, in connection with a contract serving the Department of Defense, then they'd be outside the territorial grants in the MEJA.

I think this is one of the reasons why it's really in the interest of justice here to have a far broader, more expensive grant of jurisdiction to the Department of Justice as they pick up all those cases. I mean, it certainly would be an inefficient use of the law enforcement resources of the United States not to be able to join all the perpetrators in this case.

REP. GOHMERT: Well, you had said that the DOJ had responsibility for investigating -- I was in the Army four years and familiar with their military justice, it would seem, though, that when there's an immediate problem in a DOD theater, that there should be DOD investigators immediately step in, whether there's DOJ on the scene or not. Would you agree with that?

MR. HORTON: Absolutely.

REP. GOHMERT: I mean, there's some incredibly professional DOD investigators, detectives, well-trained, good folks, it would seem that they would be the perfect people to come in if it's support personnel for a DOD mission.

MR. HORTON: I agree completely with that. You know, it seems to me that it would be reasonable to draw on the existing in-theater law enforcement expertise, and that would include the criminal investigative division of the Department of the Army, medical sources, and others. We would need, I think, someone with prosecutorial experience to supervise. And there are some gaps, of course, because the criminal justice system, and our civilian courts, and our Article 3 courts, is different from the Court-Martial system, so the CID frequently prepares evidence to different standards. So you'd need to have a prosecutor who could supervise the process, to be sure that we don't have any shortfall.

One thing -- there was a reference earlier to the Abu Ghraib cases. Now those are cases, six cases that were referred to the Eastern District of Virginia involving civilian contractors to Abu Ghraib. They were investigated by the CID. The portfolio, and all the information was passed to the Eastern District of Virginia. There is no evidence, I see, of prosecutorial action. One thing I'm concerned about is, you know, why? Does the Department of Justice feel that the CID investigation doesn't meet standards for federal court prosecution for some reason? I mean, that would be a very --

REP. GOHMERT: Well, basically -- you're probably aware, they operate under the basic federal rules -- they kicked in back around 1980, for Military Justice courts. But if there is some question about jurisdiction of DOD, or CID, with the military coming in and investigating, we'd welcome your input on how best to craft a fix to that legislatively, to make sure that it's taken care of.

Ms. Jones, I would like to ask what specific thing do you think we could put into law that would have allowed you immediate help once something like this occur?

MS. JONES: First of all, I think that --

REP. SCOTT (?): Ms. Jones, can you back away from the mike just a little bit?

MS. JONES: I'm sorry. First of all, I think that if there was a standard procedure in place, such as, you know, if someone's referred to the Halliburton clinic, then the Halliburton clinic should contact, like FBI or whoever you all think needs to investigate it, because the KBR security coordinator -- there's no way that that would come within the scope of their employment, I wouldn't think.

REP. GOHMERT: Did they have a rape kit readily accessible, or was that something that took awhile for them to get a hold of?

MS. JONES: I'm not sure. I was taken to the Army hospital where the rape kit was administered. But the Army doctor did hand over the rape kit to KBR security. I think that if this would have happened in the States, the rape kit would have been handed over to, say, a police officer, and there would be a chain of command -- like if the rape kit was handed to one person, and to another -- it would be, you know, written out that it changed hands.

REP. GOHMERT: Certainly. Well, and normally, the military understands that and they're very good about that. That's why I'm very concerned about this lapse in the judgment and actually in the protocol for how you handle these things. Like I know Judge Poe saw repeatedly as a judge, they have those same procedures in the military, and it's really shocking that that wasn't followed here either.

But I see my light's on, and so -- thank you, Mr. Chairman.

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REP. LOUIE GOHMERT (R-TX): Thank you, Mr. Chairman. Just a couple of follow-up matters. Chairman, for whom I have immense respect, had pointed out, you know, what a hearing and what a disgrace and pointed out that we're asking the victim questions about the law. And what I found in my three years in Congress is that too often we don't ask the people most closely associated with problems what they see as a proper fix, and to me this really is a heavyweight matter. As a judge, I saw where the state legislature made conflicting laws and as a result they gave technicalities for people to get off down the road.

So I want to make sure we get this right and if I could ask the professor a question about the statute of limitations because, Chairman, you had mentioned that and a brilliant intuitive -- right to the heart of it. Professor, as I understand it and recall from the military there's a five-year statute of limitations on an offense like this. I don't know if that would apply. Do you know what statute of limitations would apply here?

MR. HORTON: That's something I'd have to research and get back to you on -- I don't know. But actually raising the military point's another good point because we haven't discussed in the course of this hearing the possibility of using the military criminal justice process to address it. That's also an option that's out there -- the UCMJ -- and its availability would turn on a number of facts including who were the perpetrators. So obviously if we had military personnel or reservists or others who are within the grant of jurisdiction in Article 2 of the UCMJ that'd be another possibility and then we would get the five-year statute of limitations.

REP. GOHMERT: Listening to this hearing it does sound from both sides of the aisle that one of the problems that we keep coming back to is I don't think we've made clear who is in charge in this situation, and what I've seen also is the doctors -- they're not criminal experts. So whoever appears to be in charge is the one they end up giving stuff to. They require somebody on the scene to tell them, and I hope that we can get that fixed. And I am concerned about the Justice's nonappearance, as my colleagues are, but I was presented a letter that was sent by the Clinton administration attorney-general, Reno, basically taking the same position that even when there's -- we're going to be asked questions about procedure if there's an open case that it might pertain to then we don't want to come testify, and I really appreciated the chairman -- (inaudible) -- back here sometimes you wonder what we're talking about.

The chairman is trying to figure out a way we can get to the heart of it and really appreciate that, and I think a bipartisan letter where it doesn't matter which administration, whether it's Clinton or Bush or whoever in the future, we ought to lay out some ground rules that we can agree with. Look, we're not going to ask you about a pending case that you can't answer but you need to come forward. If the Justice Department doesn't come forward and tell us proper applicability of laws then that whole side is not being represented and we may make a mistake in prescribing the proper laws.

So I would applaud, Chairman Conyers, your effort in doing that. We really ought to be able to lay out ground rules that can force the hand of any administration's justice department to come before this committee and explain their position on the laws because when we get laws wrong people suffer, and I applaud, Chairman Scott, your having this hearing and having it so quickly, and I hope we can get to a solution. Oh, and one other thing -- I may be the only person that went through international arbitration testing for three days, and what I've seen is my colleagues are exactly right. When it pertains to something this tortuous, arbitration rules of evidence are far too lax to be the appropriate venue for something like this. So that may also be something we --

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