Hearing Of Armed Services Committee - Nominations Of The Honorable John M. Mchugh To Be Secretary Of The Army; Dr. Joseph W. Westphal To Be The Under Secretary Of The Army; And Juan M. Garcia III To Be Assistant Secretary Of The Navy For Manpower And...

Statement

Hearing Of Armed Services Committee - Nominations Of The Honorable John M. Mchugh To Be Secretary Of The Army; Dr. Joseph W. Westphal To Be The Under Secretary Of The Army; And Juan M. Garcia III To Be Assistant Secretary Of The Navy For Manpower And Reserve Affairs

Senator McCaskill.
Senator MCCASKILL. Thank you, Mr. Chairman. And thank you
to all of you for your service.

Representative McHugh, I have been visiting with the dairy
farmers in my State, and it is a rough time. And we wrangled over
the postal bill yesterday. So I know that as you face new challenges,
at least you can push some of those aside and realize they
are no longer on your plate.

Dr. Westphal, I am going to give you a free pass this morning
because I am a political science major from the University of Missouri.
So you, obviously, are brilliant since you got your doctorate
from the University of Missouri in political science. What year did
you get your doctorate?

Dr. WESTPHAL. 1980 is when I finished my Ph.D.
Senator MCCASKILL. So you are certainly familiar with David
Luthold and Dr. Casey and Tilliman, all of the professors that have
some responsibility for me sitting here.

Dr. WESTPHAL. I took classes from all those, Senator.

Senator MCCASKILL. Absolutely. It is a great school and it is
great that you are coming back into the service of your country in
this regard.

Let me first begin with you, Congressman McHugh, and ask you.
No one has, so far, asked you about your view on don't ask/don't
tell in the military. I think it is important that we get that on the
record at this juncture.

Mr. MCHUGH. Thank you for the question. By the way, I am a
political science major too.

Senator MCCASKILL. That counts. Unfortunately you are not a
Tiger, though.

Mr. MCHUGH. I gave it a shot.
It is a serious issue and it is an issue that has not been before
me as a Member of Congress since 1993. The reality is the President
has made very clear—and I have not had a chance and I have
not talked to the President directly, but I have talked to high officials
in the administration, and I have no doubt the President is
going to press forward with his intent to change that policy. To
whatever degree remains to be seen. I think he would like a full
reversal.

It is also without question that Secretary Gates has begun a
process of what he describes as softening that policy. Whatever
that may mean remains to be seen.

My view, as Secretary of the Army, if confirmed, would be to do
the most effective job I could garnering the military input and information
that I think any Secretary and any President would like
as they go forward in finalizing the determination. That is how I
described my envisioned role to the administration. They seemed
content with that.

But having said that, two other factors. Whatever the decision of
the President and the Secretary of Defense, it would be my responsibility,
if confirmed, or any service Secretary's responsibility thereafter
to do the best job he or she could to come before this committee,
the HASC, whichever other relevant committees may be
afoot to best describe and as most effectively to describe the reasons,
the rationale, and the justification for whatever policy
evolves. That is the responsibility of a service Secretary, as I see
it, under title 10.

And at the end of the day, I think it is worth noting, of course,
this is a policy embedded in law, and there will be no overturning
of it without the agreement of this Congress, the House, the Senate,
and of course, the President.
Senator MCCASKILL. Thank you.
Further, I know that you worked on Government oversight in the
House, I have been very engaged with the help and assistance of
this committee and the staff and certainly the chairman on contracting
issues.
There is a heartbreaking case of Rocky Baragona, a lieutenant
colonel, who was killed in a HMMWV accident in 2003 in Iraq. He
was hit by a Kuwaiti company that is a contractor for the United
States. His HMMWV was struck by a truck driven by a Kuwaiti
company called Kuwait and Gulf Link Transport. The Army found
that this company was negligent in his death, and his family
brought suit against this company and got a default judgment
against this company. And then they hired lawyers, came into the
United States, and claimed that we had no jurisdiction over them,
no in personam jurisdiction over them, and they ultimately prevailed
in court. Now, that is the first part of the story.
The second part of the story is that there have been allegations
of human trafficking on the part of this company.
After they have come in and hired lawyers and defeated this
family in their effort to get compensation for their son's death, they
are now in line for more contracts. They were put up for possible
debarment on September 22nd, 2006, and as we speak, they are
seeking, through some successor companies and the original company,
$1.5 billion in contracts right now, including such things as
food service and transport and all kinds of things.
You know, there is something terribly wrong with this picture,
that a company we would hire would negligently take the life of
one of our soldiers and we go back to business as usual. I have
sponsored a law that will give in personam jurisdiction in Federal
court over all U.S. contractors in civil and criminal actions. And I
would like your view on the Rocky Baragona case and the inability
of the military to cut off contractors who are bad actors. I mean,
at a minimum, I would like us to get to the point we quit paying
them bonuses—I mean, we are still paying performance bonuses to
companies who have hurt our troops—much less giving them successor
contracts. And I would like your view of the Rocky Baragona
legislation, and if you think personal jurisdiction over any contractor
that we hire through the United States Government should
lie in the United States.
Mr. MCHUGH. Senator, as I am sure you will appreciate, I really
cannot comment on the particulars of the case. Certainly as you describe
it here this morning, something would appear to be very
wrong. I would promise you, if I were confirmed, I would look at
it carefully and get back to you and try to discuss it with you further.
I know the Secretary of Defense has begun to assemble a task
force on contracting. It does not just apply to this issue but, in fact,
applies to the issue of guard contractors, all kinds of contracting
arrangements across the board as to what their legal obligations
and responsibilities are.

And at the end of the day, I think it is worth noting, of course,
this is a policy embedded in law, and there will be no overturning
of it without the agreement of this Congress, the House, the Senate,
and of course, the President.

Senator MCCASKILL. Thank you.
Further, I know that you worked on Government oversight in the
House, I have been very engaged with the help and assistance of
this committee and the staff and certainly the chairman on contracting
issues.

There is a heartbreaking case of Rocky Baragona, a lieutenant
colonel, who was killed in a HMMWV accident in 2003 in Iraq. He
was hit by a Kuwaiti company that is a contractor for the United
States. His HMMWV was struck by a truck driven by a Kuwaiti
company called Kuwait and Gulf Link Transport. The Army found
that this company was negligent in his death, and his family
brought suit against this company and got a default judgment
against this company. And then they hired lawyers, came into the
United States, and claimed that we had no jurisdiction over them,
no in personam jurisdiction over them, and they ultimately prevailed
in court. Now, that is the first part of the story.
The second part of the story is that there have been allegations
of human trafficking on the part of this company.
After they have come in and hired lawyers and defeated this
family in their effort to get compensation for their son's death, they
are now in line for more contracts. They were put up for possible
debarment on September 22nd, 2006, and as we speak, they are
seeking, through some successor companies and the original company,
$1.5 billion in contracts right now, including such things as
food service and transport and all kinds of things.
You know, there is something terribly wrong with this picture,
that a company we would hire would negligently take the life of
one of our soldiers and we go back to business as usual. I have
sponsored a law that will give in personam jurisdiction in Federal
court over all U.S. contractors in civil and criminal actions. And I
would like your view on the Rocky Baragona case and the inability
of the military to cut off contractors who are bad actors. I mean,
at a minimum, I would like us to get to the point we quit paying
them bonuses—I mean, we are still paying performance bonuses to
companies who have hurt our troops—much less giving them successor
contracts. And I would like your view of the Rocky Baragona
legislation, and if you think personal jurisdiction over any contractor
that we hire through the United States Government should
lie in the United States.

Mr. MCHUGH. Senator, as I am sure you will appreciate, I really
cannot comment on the particulars of the case. Certainly as you describe
it here this morning, something would appear to be very
wrong. I would promise you, if I were confirmed, I would look at
it carefully and get back to you and try to discuss it with you further.
I know the Secretary of Defense has begun to assemble a task
force on contracting. It does not just apply to this issue but, in fact,
applies to the issue of guard contractors, all kinds of contracting
arrangements across the board as to what their legal obligations
and responsibilities are.

My opinion has always been that if, indeed, we are going to contract
with individuals, we ought to think very carefully about making
them subject and under the jurisdiction of the laws of the
United States. I understand that is a non-lawyer's opinion and that
it is far more complex than that. But in terms of my sympathies,
my sympathies certainly lean toward yours. But I just cannot comment
on the particulars, but I promise you I would be happy—not
happy—I would be obligated to look at it and to pursue it with you
further at the appropriate time.

Senator MCCASKILL. That would be terrific. I think it is very important
that we have accountability in every aspect of what we do
as it relates to taking care of the men and women who are stepping
across the line for us. And if somebody we are hiring runs over one
of them with a truck, they ought to be held accountable. It is just
pretty simple I think. Just good, old Midwest common sense tells
me that is not the right outcome.
So I look forward to you looking into it and I look forward to
working all of you in your new capacities. And God bless you for
your service. Thank you.
Thank you, Mr. Chairman.

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