Senator Patrick Leahy (D-VT) and Congressman David Price (D-NC) have just announced a new bill to ensure accountability under U.S. law for American contractors and employees working abroad.
One might think, given the rush in recent years by various members of Congress to grandstand on this issue, that this is just more of the same. Industry trade groups have long claimed that private contractors operate under a myriad of international and national laws, rules, directives and regulations. That is true. But one has only to look at the most recent Congressional Research Service report on legal issues affecting private military contractors in Iraq and Afghanistan to see that there is still much ambiguity that needs to be clarified.
The bill’s co-sponsors alone mean that the bill will be worth examination. Rep. Price has long been one of the leading members of the House on this issue. He is known for a careful, dispassionate, non-polemical approach.
Sen. Leahy is better known for his long and admirable work on banning antipersonnel landmines, as well as his work on judicial issues, as Chairman of the Senate Judiciary Committee. But he too is known for his painstaking, and non-sensationalistic approach.
The proposed legislation allows the government to prosecute government contractors and employees for certain serious crimes. The legislation expands on the Military Extraterritorial Jurisdiction Act (MEJA), which provides similar criminal jurisdiction over Department of Defense employees and contractors but does not clearly apply to U.S. contractors working overseas for other federal agencies, such as the Department of State.
The Civilian Extraterritorial Jurisdiction Act will:
- Direct the Justice Department to create new investigative units to investigate, arrest and prosecute contractors and employees who commit serious crimes.
- Allow the Attorney General to authorize federal agents to arrest alleged offenders outside of the United States, if there is probable cause that an employee or contractor has committed a crime.
- Require the Attorney General to report annually to Congress the number of offenses received, investigated and prosecuted under the statute; the number, location, and deployments of the newly created investigative units; and any changes needed in the law to make it more effective.
Currently, the Domestic Security Section of the Department of Justice Criminal Division provides preliminary liaison with the Defense Department and other federal entities and to designate the appropriate U.S. Attorney’s Office to handle a case.
But given the December 2009 opinion by Judge Urbina throwing our charges against five Blackwater contractors because of the way the Justice department handled the case it seems clear the Justice Department needs help.
It is also worth noting that currently the jurisdiction of MEJA for contractors working for a department other than Defense is uncertain. The decision by Judge Urbina meant that the defendants’ argument that MEJA didn’t apply to them as contractors working for the State Department in support of its mission never reached trial.
One irony is that back in October 2007 the House approved a bill introduced by Congressman Price which would ensure that the U.S. government has the legal authority to prosecute crimes committed by U.S. contractor personnel working in war zones. Defense Department contractors were already covered under U.S. law, but contractors who worked for the State Department and other agencies, were not liable for criminal activity under current law. Price’s bill extended the jurisdiction of MEJA to cover all contractors working for the government in a war zone.
Price’s bill also was supposed to ensure that the Administration has the tools it needs to investigate and prosecute allegations of abuse. The fact that two years later he is co-sponsoring another bill that, in part, has the same requirements as his previous bill shows how difficult it is to achieve meaningful governmental action in this area.
Agility, a Kuwait-based multi-billion-dollar logistics company spawned by the U.S. invasion of Iraq, is scheduled to be arraigned on Feb. 8 on criminal charges of overbilling U.S. taxpayers for food supply contracts in the Iraq war zone that were worth more than $8.5 billion.
If the lawsuit is successful, the company could owe the U.S. government as much as $1 billion.
Originally known as Public Warehousing Corporation (PWC), Agility boasts that it once supplied one million meals a day to U.S. soldiers and contractors in the Middle East. The company’s Mercedes trucks hauled delicacies, from ice cream to lobster tails, to feed soldiers living on military bases scattered throughout Iraq.
Today, it has new contracts to provide food to the U.S. Agency for International Development (USAID) in Djibouti in the Horn of Africa and – until about a month ago – was supposed to ramp up food delivery to the troops newly posted in southern Afghanistan.
In a lawsuit filed on Nov. 18, 2005, Kamal Mustafa al-Sultan accuses Agility of cheating him of a share of profits from the lucrative contract because he refused to go along with alleged corruption. A former business partner of PWC/Agility, Sultan is a cousin of the company founder and CEO, Tarek Abdul Aziz Sultan al-Essa.
After conducting a grand jury investigation, the U.S. Department of Justice (DoJ) joined Kamal Sultan and filed criminal charges against PWC/Agility on Nov. 9, 2009, immediately boosting the original lawsuit’s chances of success.
“We will not tolerate fraudulent practices from those tasked with providing the highest quality support to the men and women who serve in our armed forces,” said Tony West, assistant attorney general for the District Court for the Northern District of Georgia, in a press release.
“As this case illustrates, the Department of Justice will investigate and pursue allegations of fraud against contractors and subcontractors, whether they are foreign or domestic,” he said.
Joint Venture Leads to Falling Out
PWC was part of the Sultan family’s business empire that is grounded in high-end supermarkets and mega-stores across the Middle East. Starting in the late 1990s, Tarek Sultan teamed up with ex-U.S. soldiers to bid on lucrative U.S. government projects.
PWC’s first major contract, initially advertised in May 2002, was for a U.S. Defense Supply Center called Prime Vendor Subsistence to supply food eaten on U.S. military bases in the Middle East in anticipation of the invasion of Iraq. (Halliburton/KBR cooks and serves the food, but it does not supply it.)
At the time, Tarek Sultan had no experience in food supply, nor did he have a personal track record with the U.S. military – a requirement for bidding on the contract. However, KMSCO – run by his cousin, Kamal Sultan – had multi-million-dollar U.S. military contracts dating back to 1996 for “life support, food supplements, and ice.”
In a January 2007 interview with IPS, Kamal Sultan says he agreed to create a joint venture with Tarek in June 2002 to provide PWC with the qualifications to bid.
A year later in May 2003, PWC won the initial Prime Vendor contract. Soon after that, Kamal Sultan alleges, PWC officials asked him to take part in a scheme to defraud the military. When Kamal refused, Tarek Sultan dropped KMSCO from the contract, thus depriving Kamal Sultan of his expected 30 percent profit share.
Over the next four years, the two men waged a series of legal battles in Kuwaiti courts, with each side alternately gaining the legal upper hand.
Supporters and Critics
The company has powerful supporters in the U.S. military. Its brochures quote Gen. David Petraeus, now the head of U.S. Central Command: “Agility has performed a miracle across Iraq.”
Some see less a miracle and more profiteering. Rory Mayberry, a Halliburton/KBR food production manager for a dining facility at Camp Anaconda, testified before Congress in June 2005: “For example, tomatoes cost about $5 a box locally, but the PWC price was $13 to $15 per box. The local price for a 15-pound box of bacon was $12, compared to PWC’s price of $80 per box.”
“PWC charged a lot for transportation because they brought the food from Philadelphia,” he said.
“They get options, privileges, that no one else can get, because they used to be part of the [Kuwaiti] government,” says Saad Salem al-Qattan, a Kuwaiti businessman who owns al-Rakeb Company Petroleum Electricity & Construction Services (RAPICO), which is involved in a land dispute with PWC/Agility.
Asked about the U.S. military contracts, he shrugs: “They [PWC/Agility] are greedy, and the [U.S.] military doesn’t know where to go.”
Several lawsuits have been filed against the company. Beth Hanken, an Iowa businesswoman, sued PWC/Agility when she lost contracts to supply pork to the military. The case was dismissed. The only lawsuit that has stuck so far is Kamal Sultan’s 2005 charge against PWC and its top officials.
After the court unsealed the records in November 2009 when the DoJ joined Kamal Sultan’s lawsuit, PWC/Agility posted a statement on its Web site: “Kamal Mustafa Sultan, owner of Kamal Mustafa Sultan Company … has a long history of strong animosity toward PWC, its officers, and its employees.”
PWC/Agility added that Kamal has filed more than 40 court actions against PWC, its executives, and its employees in Kuwaiti courts, but that “all of the court actions have been unsuccessful.”
But whether or not Agility wins in court, it is already losing at the cash register. Immediately after the DoJ joined the case, the Pentagon barred PWC/Agility and its subsidiaries from federal contracts by placing it on the “Excluded Parties List System.”
DynCorp, a business partner, followed suit in late December by dropping PWC/Agility from a major U.S. military logistics contract in southern Afghanistan.
In November, PWC/Agility said it “is confident that once these allegations are examined in court, they will be found to be without merit.”
Since then PWC/Agility has attempted to reach a settlement with the DoJ by offering to pay a $600 million fine, according to reports in the Kuwaiti press. “No agreement has been reached so far and there is no guarantee these negotiations will lead to a solution,” the company stated at the end of December.
A criminal arraignment of PWC/Agility scheduled for early January has been postponed five times so far, the latest delay coming at the eleventh hour on Jan. 29. U.S. Magistrate Christopher Hagy agreed to a new date of Feb. 8, although he expressed exasperation.
“There’s a point at which this stops,” Hagy said.
Unless these settlement discussions bear fruit, the arraignment could lead to a trial in which spectators can expect a fascinating view into the extent of corruption engendered by the U.S. occupations of Afghanistan and Iraq.