Zero, nada, none, no, 0 successful prosecutions have been completed of contractors and contract workers for crimes in Iraq. We have photographs and incontrovertible evidence of major crimes including mass murder, gang rape and torture but the U.S. has not allowed Iraq to prosecute and has successfully prosecuted no one to enforce the rule of law. The sickest, most ruthless, most violent contractors are the face of America to Iraqis.
Even Americans women in Iraq cannot expect to be protected from gang rape. The medic that examined Jamie Lee Jones didn't remember her case at first because rape is so common. Scott Horton testified before Congress today, presenting chilling evidence about the breakdown in the rule of law in Iraq.
The state Department and the Department of Justice have done absolutely nothing to enforce criminal law in Iraq.
There has not been a single completed prosecution of a crime involving a contractor implicated in violent crime coming out of Iraq, although the reported incidents which would have merited investigation are legion. Again, it is simply impossible to believe that in a community with a peak population of 180,000 people—with many more people than that actually cycling in and out of these jobs, tens of thousands of them Americans—over a period of approaching five years there has been no violent crime. The facts point to something else: an attitude of official indifference within the Department of Justice, or at least a decision to accord these crimes a very low priority and no or very little resources.
The Contractors have been allowed to be a law onto themselves. The Jamie Leigh Jones rape case is a horrific example of how contractors are allowed to answer only to themselves. The Department of Justice has the legal obligation to enforce the law but has abandoned that duty.
I have not independently investigated the facts of the Jones case, though I personally find her account painful and compelling. But if I consider the facts that Ms. Jones has described, taking only those which have not been disputed by Kellogg Brown & Root, then I see no impediment to the exercise of the criminal law jurisdiction of the United States by the Department of Justice. As alleged the crimes occurred among employees of contractors involved in a contingency operation, on installations or facilities maintained by the United States abroad, and involve U.S. citizens as perpetrators and victims. These facts would provide multiple bases for the Department of Justice to exercise its jurisdiction. The crimes which have been alleged—rape, assault and false imprisonment among them—would come under at least two different grants of jurisdiction to U.S. federal courts, namely the Military Extraterritorial Jurisdiction Act, as amended in 2004, and the special maritime and territorial jurisdiction, as expanded by the USA PATRIOT Act. Of course, depending on the identity of the perpetrators, and potentially also the contracts which brought the personnel to Iraq, there might be some legal issues. This would have to be developed by investigation.
The astonishing failure in this case is the failure of an appropriate law enforcement authority to conduct a prompt and timely investigation of the allegations while Ms. Jones was still in theater. It does appear that the matter was reported to the Justice Department early on, and Ms. Jones recalls meeting with a special agent of the FBI from the Baghdad Embassy. But the investigation was conducted by the State Department, and it does not appear to have been an investigation designed to support a decision to take criminal action, including potential prosecution. In a case of this sort, having a timely, professional investigation conducted that secures forensic evidence in a form which is admissible in subsequent criminal proceedings is critical. This does not appear to have occurred. This will make prosecution by the Department of Justice incalculably more difficult. It may lead a prosecutor to conclude that even though a serious crime likely occurred, it will be too difficult to develop the evidence necessary to prosecute it.
In fact the way the medical examination and resulting evidence was handled was truly shocking.
These factual allegations from the Jones case strike me as significant and revealing of structural flaws in the way contractor-related crimes are being handled in Iraq and Afghanistan:
(1) The Justice Department is effectively not present on the scene, does not have personnel deployed charged with conducting investigations, collecting evidence and making preliminary decisions as to whether incidents are suitable for prosecution. This would require a team of FBI agents with appropriate training, including access to forensic labs and personnel.
(2) The case when first alleged seems to have been treated as an issue related to administration of a contract, rather than a criminal justice matter, triggering only a State Department investigation. But the State Department does not have authority to conduct criminal inquiries or to bring charges.
(3) The Department of Defense was called upon to provide medical expertise, which was a reasonable step. But no guidelines appear to have been available as to how this was done. The alleged surrender of the rape kit by military medical personnel to Kellogg Brown & Root was grossly improper, producing a serious lapse in the chain of custody—and in this case, loss of evidence which cannot be reproduced. It reflects an attitude which I hear constantly when interviewing State Department and Defense Department personnel—namely, that the problem is the contractor’s. Of course, the contractor has an interest in performing its contract and maintaining a good relationship with the contracting agency. The contractor does not have any interest per se in law enforcement. It might well decide to terminate employees it believes are involved in a crime, but beyond that the contractor will, very appropriately, believe that the responsibility for law enforcement lies with law enforcement agencies.
And the Jones case is just one of many cases of horrible abuse by contractors.
And what about the Abu Ghraib cases involving contractors that were passed to the Department of Justice? Though there is a single newspaper report of a grand jury meeting at which questions were asked about these cases, there is no sign of any meaningful prosecutorial action—not even of efforts to interview victims and key witnesses. The Eastern District of Virginia has a reputation for acting quickly and skillfully. It has in the past years handled some of the highest profile cases in the country. The contrast between those cases and its handling of the cases from Abu Ghraib is nothing short of stunning. And the explanations that have been offered simply do not hold water.
And has anyone been held responsible for the Blackwater killings of 17 unarmed civilians and wounding of 24? Have any plans been developed to stop this kind of incident from happening again?
On December 5, the Department of State and the Department of Defense, represented through Deputy Secretaries Negroponte and Gordon, entered into a Memorandum of Agreement which sets out guidelines for cooperation in some investigations. When I first received and examined this document, I was convinced I must have been missing several pages. The most extraordinary thing about it is in fact what it does not cover. Remember, this process started in the wake of the Nisoor Square incident on September 16, in which private security contractors working for Blackwater Worldwide opened fire in the Nisoor Square neighborhood of Baghdad, leaving 17 civilians dead and severely wounding 24 more. The confusion, defensiveness, multiplicity of uncoordinated, ad hoc investigations, and inter-agency finger-pointing that characterized the U.S. government response to the shootings highlight the fact that the U.S. Government at this late date still had no plan or procedure for investigating allegations of serious violent crime involving private contractors fielded by the U.S. government in Iraq.
No, there is no plan. There is no procedure for investigation. Private contractors are a law onto themselves.
The House has passed legislation to help restore the rule of law in Iraq, but the Senate has done nothing.
Since June, we have witnessed a parade of further headlines which demonstrate precisely the shortcomings that were identified and addressed in Congressman Price’s legislation, H.R. 2740. And while that legislation overwhelmingly cleared the House—in a 389 to 30 vote—the Senate has not yet acted on a parallel measure. This legislation is urgently needed and should be enacted and signed into law in the near future.
The Senate must act to begin the process of restoring the rule of law and the image of America in Iraq. Democracy cannot succeed anywhere in a state of lawlessness.