2. The bill only forbids providing federal dollars to companies that contractually forbid employees from taking the employer to court for “any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.”

3. The amendment works as all federal funding limitations do, such as previous conditions forbidding federal highway funds to be provided to states that do not have a 21 year old drinking age, etc.

4. The actual language of the amendment found at http://thomas.loc.gov/cgi-bin/query/F?r111:1:./temp/~r111wQiK1Y:e0: addresses all government contractors, not just KBR and Haliburton.

5. The State Department turned this case, and several others, over to the Justice Department for consideration, and Justice decided not to prosecute, citing the ambiguity of local law and doubts that any federal statute could be enforced.

6. The woman who was the impetus for the bill was gang-raped by several co-workers, then locked in a shipping container for more than 24 hours without food or water when she indicated she would be filing complaints. The, after doing so, KBR’s security company ‘lost’ the rape kit after doctors turned it over to them.

7. Arbitration in employment contracts, if anyone here has had any experience, are often lopsided in favor of the employer, usually requiring use of arbitration groups and/or arbitrators that are pro-employer.

8. Unlike the courts, arbitrations are not appealable, unless someone refuses to follow the arbitrators order. They can add extra expense and time to an employee’s claim.

§ 3261. Criminal offenses committed by certain members
of the Armed Forces and by persons employed
by or accompanying the Armed Forces outside
the United States
(a) Whoever engages in conduct outside the United States
that would constitute an offense punishable by imprisonment for
more than 1 year if the conduct had been engaged in within the
special maritime and territorial jurisdiction of the United States—
(1) while employed by or accompanying the Armed Forces
outside the United States; or
‘‘(2) while a member of the Armed Forces subject to chapter
47 of title 10 (the Uniform Code of Military Justice),
shall be punished as provided for that offense.

Read section (a) there – if you commit an act OUTSIDE of the US that would be punishable INSIDE the US, you can be prosecuted. While I agree smoking dope in Amsterdam would probably be a misdemeanor and wouldn’t be punishable, raping someone in Iraq definitely would be.

If you read 18 U.S.C. § 7, you’ll find that it doesn’t apply to crimes committed in another nation (“Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States.” 18 U.S.C. §7(7)).

These crimes were committed in Iraq and are subject to Iraqi jurisdiction, so the special maritime and territorial jurisdiction of the United States is not implicated.

However, under CPA Order 17, Contractors were granted immunity under Iraqi law. Now, there are two arguments here. One is that this makes them not subject to the law of Iraq at all and they are subject to U.S. jurisdiction under MEJA (actually, I think under the UCMJ, but that’s a quibble). Unfortunately, that argument loses its force because if they were not SUBJECT to Iraqi law, then Iraq could not grant them immunity under Iraqi law. So the CPA created the loophole that prevented prosecution in this case, and the behavior of KBR with respect to the evidence probably ruined the chance of a prosecution anyway. There is nothing stopping Congress from expanding jurisdiction, but they have not done so (presumably there won’t be any more orders like CPA 17, but Congress can get around the problem by amending 18 U.S.C. § 7(7) to include crimes committed against U.S. nationals anywhere, whether in another nation or not).

Also, I think if you follow the analysis of the statutes, you’ll find smoking dope in Amsterdam is probably not within the jurisdiction of the United States (for one thing, it’s probably just a misdemeanor, for another its within the nation of the Netherlands). I suppose you could argue that because it’s not illegal there, you’re not subject to the law of another nation, but I’d expect that argument to get laughed out of court. Nonetheless, I suspect it remains a condition of your federal employment that you not use marijuana.

Don’t know how to link, but you can find it at http://courtmartial.typepad.com/mljucmj/ucmj-jurisdiction-civ/

I’ll keep looking to see if I can find anything else…

I’ll see if I can find something else to support….

While I like LivePodium’s threading of comments, I can’t say I like much else about it. The “old” system is much cleaner looking and easier to type into. Firefox’s spellchecker works on the “old” system but not on LP. You can actually see the article you’re commenting on with the old system where as LP it isn’t there. The entire comment shows in the old system where the longer ones are cut off on LP. Finally, I don’t like the idea of having to visit a completely different domain to read comments from theagitator.com.

I have to say I’m happy to us back to the old system. I hope when LP is “fixed” that you do not return to it.

You might also read a little about the jurisdictional issue in the case. You might also decide that it’s been 10 months or so since President Obama took over and the justice department has still not pursued the case. After doing all of that, it might be that you will realize the original article is maybe, just maybe, preaching to the choir and that the legal issue involved is more difficult than it appears.

I suppose it would make everyone feel better if the justice department filed a case that immediately was dismissed for lack of jurisdiction, but it would be a waste of time. Congress has to address the issue before the executive, regardless of who the president is, can take action.

I’d love for you to cite to why you think it is that “any contractor, civilian or uniformed service member overseas still falls under US law.”

For one thing, I know that you’re wrong, but if you think you can prove you’re right, have at it. You can ignore uniformed service members (who are always and everywhere subject to the UCMJ) and concentrate on civilians and contractors. “That’s what my boss told me” doesn’t count. I have no doubt that the conditions of your employment forbid your using pot anywhere, but that’s not the same as saying U.S. criminal law applies to you in Amsterdam.

Finally, the jurisdicitional question is one that would not arise in Europe. It arose in Iraq because of a CPA rule (that was ill-advised).

I think the key phrase from that article is that the Bush Justice Department declined to prosecute. They could have, just chose not to…

On the other hand, I would like to see Congress enact a statute extending U.S. jurisdiction specifically to these kinds of criminal defendants, to clear up the confusion about whether they are subject to local law or U.S. law. It would be nice for Franken to do that instead of this largely symbolic (and way overbroad) carve out to arbitration clauses.

I say symbolic because the Fifth Circuit has already determined that the conduct that was the impetus for the amendment is not arbitrable conduct.

I am especially shocked that anyone could consider voting against the amendment to be “pro-rape” since all the amendment addresses is whether certain claims will be subject to compelled arbitration. I guess overreading part and underreading another part in the service of partisan bullshit is okay? Does anyone ever actually go read the original sources?

DOD civilian contractors are not subject to the UCMJ unless they are “serving with or accompanying an armed force in the field” in a time of war. UCMJ § 802(a)(10). Since we don’t know what these folks were tasked to do, we don’t know whether they were serving with the military, but I doubt it. If the UCMJ applied, the territorial limitations that cause the problem would not exist (if the UCMJ applies to you, it applies anywhere), and I sincerely doubt that prosecutors don’t want to prosecute those guys.

As to comments. I don’t like that the other system is flash, since it doesn’t allow me to comment when I am using my iPhone (and flash is evil). I wish it could at least be embedded in the way that the live chats are, in the permalink page, rather than in a new window altogether.

Sounds ok to me. Kind of like when they shoot people threatening suicide to prevent them from killing themselves…police logic. We aren’t supposed to get it.

Please pass go and collect $200 Mr. Policeman. And here’s your Hero’s citation…and promotion…and interdepartmental move to the SWAT team.

I can sleep better now knowing you are on the job. *note to self…do not wrestle with kids on the front lawn….

She probably never imagined when she reported being raped to her employer their response would be to hold her against her will in a cargo container and it would require intervention from her congressman to get her out. Arbitration isn’t really appropriate after kidnapping.

Hey bud,

You just made a good post and listed some legitimate problems. That kind of thing was want Radley wanted as feedback and was never the problem.

The ‘boring’ thing was just a reference to Johnny Dangerously, lol. Perhaps only I got it.

Mayor: Now Drebin, I don’t want any trouble like you had on the South Side last year, that’s my policy.
Frank: Well, when I see five weirdos, dressed in togas, stabbing a man in the middle of the park in full view of a hundred people, I shoot the bastards, that’s *my* policy!
Mayor: That was a Shakespeare-In-The-Park production of ‘Julius Caesar,’ you moron! You killed five actors! Good ones!