Posted on 10/08/2009 6:55:53 AM PDT by steve-b
Sen. Al Franken finally has a piece of legislation under his belt, signed by the U.S. Senate. His amendment passed through a roll call vote Tuesday night. We're all for getting things done in a Congress that appears to be stalling on anything and everything possible.
Franken's amendment stops defense contractors from receiving federal funding if they use mandatory arbitration clauses that prevent victims of assault from going to court. Nine Republicans voted with Democrats on the legislation for a final vote of 68-30. The amendment was part of the 2010 Defense Appropriations Bill....
"The story came to my attention of Jamie Leigh Jones who, when she was 19, went to Iraq to work for [defense contractor] KBR and she was put in the barracks with 400 men and was sexually harassed," Franken told the Huffington Post in a brief interview shortly after the vote. "She complained. But they didn't do anything about it. She was drugged and gang raped and they locked her up in a shipping container. She tried to sue KBR and they said you have a mandatory arbitration clause in your contract. She tried to fight back and said this is ridiculous. She took it to court and they have been fighting her for three years."Franken says he hopes this is just the first step in his effort to add more oversight to contractors that receive federal funding.
(Excerpt) Read more at blogs.citypages.com ...
Still missing the legal picture. Was she on a military base? Is there no legal authority for civilians there? How about MPs? Or was she in Iraq outside of US military authority? Obviously there were no criminal charges filed. Is it because they were under Iraq legal authority?
Sounds like Deadwood, that outlaw mining town of the 1800s officially owned by American Indians.
“Since the handover of sovereignty to Iraqis, many of the facilities in the Green Zone have been turned over to the new Iraqi government. It is still a base for western private military contractors, and home to the U.S., British and Australian embassies. The permanent U.S. embassy is located in the southern Green Zone, overlooking the Tigris River.”
“On 1 January 2009, full control of the Green Zone was handed back to Iraqi security forces.[10]”
http://en.wikipedia.org/wiki/Green_zone
Statement of Purpose: To prohibit the use of funds for any Federal contract with Halliburton Company, KBR, Inc., any of their subsidiaries or affiliates, or any other contracting party if such contractor or a subcontractor at any tier under such contract requires that employees or independent contractors sign mandatory arbitration clauses regarding certain claims.
Coin-operated politicians, acting at the behest of corrupt contractors, have set up a situation that shields politically favored criminals from both Iraqi and American law (basically, by playing a shell game of asserting that American law doesn't apply because the bases are in Iraq, and Iraqi law doesn't apply because the bases are run by American authorities).
This is the sort of thing that makes it easy to paint the US as simply a greedy imperial power rather than a nation acting to defend legitimate interests.
There are some obvious parallels, yes. The result is that laws don't apply unless the people in power happen to find them convenient.
If it’s such a great idea, why just apply it to THIS funding?
Why not ALL funding?
SA 2588. Mr. FRANKEN (for himself and Ms. Landrieu) submitted an amendment intended to be proposed by him to the bill H.R. 3326, making appropriations for the Department of Defense for the fiscal year ending September 30, 2010, and for other purposes; as follows:
On page 245, between lines 8 and 9, insert the following:
Sec. 8104. (a) None of the funds appropriated or otherwise made available by this Act may be used for any existing or new Federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration 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. (b) The prohibition in subsection (a) does not apply with respect to employment contracts that may not be enforced in a court of the United States.
Jurisdiction for criminal prosecution does not seem to be addressed by Frankenshmuck’s bill. Apparently he is not concerned with prosecuting the perps, and is content to let the status quo stand in that regard.
He is evidently interested in expanding tort litigation as I noted previously. That is what this bill is about.
Legal experts say Jones’ alleged assailants will likely never face a judge and jury, due to an enormous loophole that has effectively left contractors in Iraq beyond the reach of United States law.
“It’s very troubling,” said Dean John Hutson of the Franklin Pierce Law Center. “The way the law presently stands, I would say that they don’t have, at least in the criminal system, the opportunity for justice.” I said there is a legal loophole which prevents criminal prosecution, but I believe the case needs to be prosecuted criminally and I think she should sue Haliburton, maybe next time this won’t happen if they pay out much dollars.
Interesting point guys.
The Dems were on the issue of private contractors and partially privatizing the war in Iraq (especially with rebuilding) leaves a legal no mans land. That was an issue I only saw on MSNBC.
I get what you’re saying. it appears the loophole for criminal prosecution is one of law, in that jurisdiction is not conferred for such a prosecution by any statute.
Dean John Hutson of the Franklin Pierce Law Center: “The way the law presently stands I would say that they don’t have, at least in the criminal system, the opportunity for justice.” ...See, he states it is the law, not the contract that creates the loophole for avoiding criminal prosecution.
The civil litigation “loophole” is governed by the contract, which limits her legal recourse to arbitration and does not authorize a jury trial for monetary damages.
Frankenschmuck’s bill does not seem to address the criminal jurisdiction issue- it just states that federal funding will not be given to contractors who have contracts that limit access to the “courts”. She is trying to get past the arbitration provision, which is a civil remedy.
Now, if the bill also stated that the parties to a defense contract must stipulate to US criminal court jurisdiction of any contractor who breaks US criminal laws, then he would have accomplished something worthwhile.
Since you seem to be familiar with the subject, mind if I ask your take on this?
“(b) The prohibition in subsection (a) does not apply with respect to employment contracts that may not be enforced in a court of the United States.”
It’s not that I am familiar with the subject matter- i am just applying basic legal reasoning to the situation.
What is the prohibition specified in section(a)?
Whatever it is, the section you cited states it is inapplicable as it pertains to those contracts that MAY not be enforced in a US court.
The use of “may” is tricky. There may be another clause that specifies the contract wont be enforced in a US court, but if not, then “may” leaves an opening (compare if it said “shall” or “shall not”).
I hope this helps. Legalese isn’t always straightforward, LOL.
It’s from the actual amendment, which I posted here:
http://www.freerepublic.com/focus/news/2357517/posts?page=46#46
It appears to be what it is: that the prohibition of federal funding for contracts that limit access to the courts does NOT apply to contracts which are not enforceable in the US.
So, if the employer adds a separate provision to new contracts that stipulates that the contract is not enforceable in the US, (this is the most obvious way that a contract would not be enforceable in the US) then it would seem they have bypassed or sidestepped the prohibition of section (a).
Can employers add a provision such as that?
And if they can, then what is the point of this amendment?!
A typical clause in a contract would stipulate that jurisdiction would be in a particular court (for eg., a contract signed in NY would state that any conflicts about the contract would be resolved in a NY court).
I’d think it is highly unusual to agree that an employment contract involving US citizens (a corp is a citizen for these purposes) would not invoke jurisdiction of the US courts.
BUT, look at the case here: the woman signed a contract wherein she agreed that she could not sue for damages in a US court, even if she was assaulted by a co-worker.
Parties may agree to terms they consent to, and it is (theoretically) not the court’s job to rework a contract that the parties agree to.
Thank you for the insight.
For the life of me, I couldn’t imagine a situation where the federal government would fund a contract that was not enforceable in a U.S. court.
You’re quite welcome.
The mere fact that the exclusion mentioned in section (b) is in the statute tells me that there is some contemplation that contracts will arise that provide for unenforceability in US courts.
-shrugs-
So, you advocate a mandate that says if you want to do business with the federal government you are prohibited from using terms and conditions designed to control costs and limit liability from litigation lotto?
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