Another KBR Rape Case

Editor's Note:Lisa Smith is a pseudonym used on request. Additional reporting by Te-Ping Chen. Research support provided by the Investigative Fund of The Nation Institute.

Houston, Texas

It was an early January morning in 2008 when 42-year-old Lisa Smith*, a paramedic for a defense contractor in southern Iraq, woke up to find her entire room shaking. The shipping container that served as her living quarters was reverberating from nearby rocket attacks, and she was jolted awake to discover an awful reality. "Right then my whole life was turned upside down," she says.

What follows is the story she told me in a lengthy, painful on-the-record interview, conducted in a lawyer's office in Houston, Texas, while she was back from Iraq on a brief leave.

That dawn, naked, covered in blood and feces, bleeding from her anus, she found a US soldier she did not know lying naked in the bed next to her: his gun lay on the floor beside the bed, she could not rouse him and all she could remember of the night before was screaming and screaming as the soldier anally penetrated her while a colleague who worked for defense contractor KBR held her hand--but instead of helping her, as she had hoped, he jammed his penis in her mouth.

Over the next few weeks Smith would be told to keep quiet about the incident by a KBR supervisor. The camp's military liaison officer also told her not to speak about what had happened, she says. And she would follow these instructions. "Because then, all of a sudden, if you've done exactly what you've been instructed not to do--tell somebody--then you're in danger," Smith says.

As a brand-new arrival at Camp Harper, she had not yet forged many connections and was working in a red zone under regular rocket fire alongside the very men who had participated in the attack. (At one point, as the sole medical provider, she was even forced to treat one of her alleged assailants for a minor injury.) She waited two and a half weeks, until she returned to a much larger facility, to report the incident. "It's very easy for bad things to happen down there and not have it be even slightly suspicious."

Over the next month and a half, she says, she faced a series of hurdles. She would be discouraged from reporting the incident by several KBR employees, she says. She would be confused by the lack of any written medical protocol for sexual assault (as the only medical person on site, she treated herself with doxycycline). She would wander through a tangled maze of interviews with KBR and Army investigators about the incident without any clear explanation of her rights. She would be asked to sign several documents agreeing not to publicly discuss the incident, she says. She describes having her computer--which she saw as her lifeline, her main access to the outside world--confiscated by Army investigators as "evidence" within hours of receiving her first e-mail from a stateside lawyer she had reached out to for help.

And eventually she would find herself temporarily assigned to sleeping quarters between two Army Criminal Investigation Division (CID) officials, who, she says, assured her that it was for her own safety, since her alleged assailants were at the same camp for questioning; they roamed freely. When she wanted to move about the camp to get meals etc., she was escorted.

Smith felt very alone. But she was not.

In fact, a growing number of women employees working for US defense contractors in the Middle East are coming forward with complaints of violence directed at them. As the Iraq War drags on, and as stories of US security contractors who seem to operate with impunity continue to emerge (like Blackwater and its deadly attack against Iraqi civilians on September 16, 2007), a rash of new sexual assault and sexual harassment complaints are being lodged against overseas contractors--by their own employees. Todd Kelly, a lawyer in Houston, says his firm alone has fifteen clients with sexual assault, sexual harassment and retaliation complaints (for reporting assault and/or harassment) against Halliburton and its former subsidiary Kellogg, Brown & Root LLC (KBR), as well as Cayman Island-based Service Employees International Inc., a KBR shell company. (While Smith is technically an SEII employee, she is supervised by KBR staff as a KBR employee.)

Jamie Leigh Jones, whose story made the news in December--when she alleged that her 2005 gang rape by Halliburton/KBR co-workers in Iraq was being covered up by the company and the US government--also initially believed hers was an isolated incident. But today, Jones reports that she has formed a nonprofit to support the many other women with similar stories. Currently, she has forty US contractor employees in her database who have contacted her alleging a variety of sexual assault or sexual harassment incidents--and claim that Halliburton, KBR and SEII have either failed to help them or outright obstructed them.

Most of these complaints never see the light of day, thanks to the fine print in employee contracts that compels employees into binding arbitration instead of allowing their complaints to be tried in a public courtroom. Criminal prosecutions are practically nonexistent, as the US Justice Department has turned a blind eye to these cases.

Jones's case was the subject of a House Judiciary hearing in December. Right now, Jones's lawyers are awaiting a decision on whether she will get her day in court or be forced to submit to binding arbitration, which KBR is insisting on. Likewise, the company is pressuring Lisa Smith into pursuing her claims against the company through its Dispute Resolution Program based on the contract she signed before she went to Iraq. Critics argue that the company's arbitration system allows it to minimize bad publicity and lets assailants off the hook.

Smith, who retained a lawyer only two weeks ago, is weighing her options.

KBR attorney Celia BallAfA, responding to a letter from Smith's lawyer, wrote in a letter dated March 17, "The Company takes Ms. Smith's allegations very seriously and has and will continue to cooperate with the proper law enforcement authorities in the investigation of her allegations to the extent possible." BallAfA noted that the matter has been turned over to the CID and said that Smith has been "afforded with counseling and referral services through the Company's Employee Assistance Program." BallAfA wrote in the letter that there are "inaccuracies" in the description Smith has put forward regarding her treatment after the alleged sexual assault. "Therefore, the Company requests that you fully investigate all the facts alleged by Ms. [Smith] as the Company intends to pursue all available remedies should false statements be publicized."

Such "investigation" may prove difficult for her attorney. In the next sentence, the company says it is "not in a position to release any personnel or investigative records regarding Ms. [Smith's] allegations at this time." In response to a request for comment on this story, a company spokesperson wrote in an e-mail that Smith's "allegations are currently under investigation by the appropriate law enforcement authorities. Therefore, KBR cannot comment on the specifics of the allegations or investigation." The spokesperson added, "Any allegation of sexual harassment or assault is taken seriously and investigated thoroughly." It remains unclear, however, what law enforcement investigation is examining the KBR employee's role in the alleged assault, since Army CID is charged with investigating only cases that involve US military personnel.

For her part, Smith can't quite call herself a victim yet. In the course of several conversations over several days, she never once says the word "victim" out loud. Let alone "rape." Let alone "gang rape."

She simply describes what happened, moving through the course of events as if this had happened to someone else, as if the recitation of details were an act of contrition she was compelled to perform.

Like many rape survivors, she feels guilty. In this case, Smith confesses that she broke company policy the evening of the incident by having a drink (alcohol is expressly forbidden). She had landed at Camp Harper only a week earlier, when she returned from a stateside R&R with her family. Since arriving in Iraq six months earlier, she had been at a larger facility, Camp Cedar. But her new posting at Camp Harper put her in a smaller outpost of sixty people: part US military, part KBR employees, part SEII workers. When some KBR colleagues invited her to join them for a drink after work, she did.

Smith says she had only one drink--and she asked someone to hold it after a few sips while she went outside for a smoke. Smith's attorney, Daniel Ross, speculates that someone slipped the date-rape drug Rohypnol in her drink.

Smith's memory of the evening is fuzzy, and the only thing she remembers clearly about the events surrounding her assault is the aforementioned moment of oral and anal penetration. She also remembers screaming.

The morning after the incident, Smith says, she was called into the office of her supervisor, who was Camp Harper's KBR manager; he appeared to know--at least in part--what had happened. She would later learn from an Army investigator that her supervisor had been in the room where the drinking and alleged rape had taken place at least twice that evening. Smith, who appears to have blacked out, has no direct knowledge of his participation--or indeed of who else among the crowd initially gathered in the room may have been involved. "He was one of the people involved in saying, 'Don't say anything,'" Smith says of her conversation with the KBR camp manager the morning following the incident. "Then he said, 'This will never happen again.'"

Smith offered to pack up and go home. But he sent her back to work. First, though, he responded to Smith's plea to get the soldier she still had not been able to rouse out of her bed by contacting the military's Special Forces liaison at Camp Harper. The liaison, whom Smith knew only by his nickname, DJ, was direct. "He told me not to speak of this to anyone and that he would take care of it," Smith says.

Smith sat tight for a few days but then contacted a friend at Camp Cedar, where her permanent assignment was, and asked if the Employee Assistance person for KBR was back from her R&R yet. She was not. Smith was worried about even discussing the incident, since she knew that none of her conversations were confidential. "Camp Harper has only three phones," she says. "One is in the camp manager's office. One is in the Operations Office. And one is in a hallway." She wavered. A few days later, when she knew that the Employee Assistance person for KBR would be back, Smith called her on the phone. The Employee Assistance woman was a friend of hers and, without getting too specific about the details of the incident, Smith sought her advice. "We had worked other situations together in the past, and I talked to her and she was like, 'I don't know if I'd report that. You know what happens when you report things.' And I did. I'd seen it."

Despite Smith's silence, rumors were circulating at the camp. Two and a half weeks after the incident, she was questioned by someone from the KBR Employee Relations office, who appeared to be investigating a series of improprieties at the camp, Smith says. Fearful, she denied knowledge of any wrongdoing at the camp.

When Smith returned to her original posting at Camp Cedar, a larger facility with a human resources person and more friends she could approach for advice, she recontacted the man from Employee Relations who had been investigating "improprieties" and told him her story.

This set the wheels in motion for a series of interviews, most of which concluded with Smith being asked to sign a nondisclosure statement by representatives of the company, she says.

Eventually, shortly before she was slated to return to the United States for R&R, one of the investigators for KBR suggested that Smith get tested for STDs, hepatitis, HIV, etc. and took her to the nearby military Combat Support Hospital. "The doctor took me into her office, and we talked a long time before she did an exam," Smith says. "We talked about the assault and the details and she was actually very, very kind and encouraged me to report it to the military. She tried convincing me that it wasn't my fault [for having a drink]. She was just a really kind lady--and that was the first time I had given any of the whole details of all that had happened."

In fact, military protocol compelled the doctor to report the incident; Smith was immediately contacted by the Army Criminal Investigation Division and questioned.

A few days later, shortly after contacting an attorney in the United States to advise her on her rights, the attorney sent her a draft letter he was sending to KBR on her behalf, notifying the company that he was representing her and briefly summarizing her accusations. The military came to her office within hours, she alleges, and confiscated her computer as "evidence," effectively limiting her access to the outside world. The CID did not respond to requests for comment.

Many victims of sexual assault find themselves without meaningful recourse when they work for US defense contractors that are powerful companies on foreign soil. "It's one big battle over where to fight the battle," said Smith's attorney Ross, who is considering if and how and against whom to file charges on behalf of his client.

Take Jamie Leigh Jones's case, for example.

Since Jones alleged she was gang raped in 2005, while KBR was still a Halliburton subsidiary, her case is covered by an extralegal Halliburton dispute-resolution program implemented under then-CEO Dick Cheney in 1997. The program has all the hallmarks of the Cheney White House's penchant for secrecy. While Halliburton declared the program's aim was to reduce costly and lengthy litigation (and limit possible damage awards in the process), in practice it meant that employees like Jones signed away their constitutional right to a jury trial--and agreed to have any disputes heard in a private arbitration hearing without hope of appeal. (While two lower courts declared the tactic illegal, in 2001, the Texas Supreme Court overturned those rulings.)

Accordingly, Jones faces two major roadblocks in the fight for justice. The first is the battle to have the perpetrators prosecuted in criminal court--which, because of Order 17, may be nearly impossible. According to the order, imposed by Paul Bremer, US defense contractors in Iraq cannot be prosecuted in the Iraqi criminal justice system. While they can technically be tried in US federal court, the Justice Department has shown no interest in prosecuting her case. In fact, for more than two years now, the DOJ has brought no criminal charges in the matter. Representative Ted Poe, a Texas Republican who has taken up Jones's cause, reports that federal agencies refuse to discuss the status of the investigation; meanwhile, in December, the DOJ refused to send a representative to the related Congressional hearing on the matter.

Even more appalling, the Justice Department, which can and should prosecute most of these cases, has declined to do so. "There is no rational explanation for this," says Scott Horton, a lecturer at Columbia Law School who specializes in the law of armed conflict. Prosecutorial jurisdiction for crimes like the alleged rape of Jones is easily established under the Military Extraterritorial Jurisdiction Act and the Patriot Act's special maritime and territorial jurisdiction provisions. But somebody has to want to prosecute the cases.

Horton wonders what the 200 Justice Department employees and contractors stationed in Iraq do all day, noting that there has not been a single completed criminal conviction against a US contractor implicated in a violent crime anywhere in Iraq since the invasion.

"We have a complete process in place for solving military criminal violations when soldiers commit crimes, but for the 180,000 employees of private contractors over there, there is nothing," says Horton. "It's like Texas west of the Pecos in 1890 over there!" It's just common sense that you're going to have some violent crimes when you throw this many people together, he says. "Think about it. You have 180,000 people over there, you're going to have a few crimes. I don't know how anybody could fairly view this as a partisan issue. Crimes happen when you bring people together anywhere, and in a war setting, without adult supervision, crimes are going to increase. That is just a fact. And if you eliminate law enforcement, the crimes are going to get worse because people will quickly learn they can get away with it."

Things don't look a whole lot rosier when it comes to seeking relief in the civil courts.

For example, KBR is fighting tooth and nail to make sure Jones's case stays in private arbitration, as per her contract. And given that in February, a federal district court ruled that Tracy Barker--another KBR employee who says she was sexually assaulted--couldn't present her case in open court, prospects for the civil suit Jones brought last May look dim.

And that's particularly troubling, according to Jones's attorney Todd Kelly, because the clandestine nature of arbitration allows corporate malfeasance to go unchecked. Trials serve a purpose above and beyond pronouncing verdicts. "It's like the Enron trial here in Houston," he says. "Where every day in the Houston Chronicle there was a story exposing what egregious things go unchecked in the corporate culture. The United States got to peek into the corporate underwear drawer and saw it was not as pretty as it looked from the outside." Kelly argues that Halliburton and KBR ought to be similarly exposed to public scrutiny via jury trials. These civil remedies arranged in a secretive manner have repercussions beyond the dollar figures. "It allows for future rapes to occur," he says, arguing that these defense contractors have been able to quietly settle and compel victims to remain silent: the public remains oblivious to the crimes, no one is punished and a hostile and violent workplace continues unchecked.

In the future, the sole recourse for victims like Jones may be through Congress. Last October the House overwhelmingly passed legislation that requires the FBI to investigate allegations of wrongdoing and permits all US contractors to be tried under American jurisdiction. The Senate has yet to vote on the legislation.

For her part, Jones intends to persevere. "Part of the reason I'm going forward with this case is to change the system," she says. "Who knows how many of us rape victims are out there?"

Smith, who is now back in the United States on two weeks R&R, is uncertain what the future holds for her. "I don't think I've been able to make any decisions or plans or goals yet," she says. First of all, there is the fact that she arrived home from Iraq to learn that her husband had been rushed to the hospital earlier that day after a partial stroke. She needs her job with SEII because she is the one who gets health insurance--vital not only for the two teenage daughters still living at home but for her husband, with his health problems. She worries, "Human Resources made me sign statements saying that I'm supposed to be back in Dubai on April 7 at 10 p.m., and if I'm not there I will not be reimbursed my $1,600 airfare or for my two weeks' vacation."

And indeed, the March 17 letter her attorney received from KBR attorney Celia BallAfA says that Smith can be placed on medical leave "pending resolution of the investigations related to this matter" but warns, "However, per Company policy, [her] leave will be unpaid." She is welcome to apply for workers' comp, the lawyer states.

Can she return to her old job as a paramedic in Lena, Illinois?

"Yes, my license is in good standing, and I've never had a problem," she says. "But it means a difference of about $6,000 a month in salary and no health insurance. My biggest reason for working for KBR in the first place was so I could get insurance for my husband and girls..." Smith's sentence trails off. She begins a new one. Stops midway. She tries again to organize her thoughts. "I've been trying to figure out how I'm going to go back to work. How am I going to make myself do this?" she says, manifesting the confused indecisiveness and sense of a "foreshortened future" that are hallmarks of post-traumatic stress disorder.

Has she seen a rape crisis counselor?

Not yet, Smith says. "Someone from KBR Employee Assistance gave me a flier to call someone in Houston," she says, but it turned out to be for general financial or emotional problems during deployment. They referred her to a website. "I'm 9,000 miles away in Iraq and the website says, 'Please put in your zip code and we'll refer you to a rape crisis counselor in your zip code area.'"

Smith, who says she cannot sleep, appears exhausted. She tells her story without affect, little inflection and tamped emotion. She only tears up twice, most visibly when speaking about one of her sons, a 22-year-old US soldier who served in the Middle East recently. While she was in the process of debating whether--and how--to go about reporting her assault, she contacted him to see what his feelings were on the matter. "I didn't want him upset with his mom," she says, explaining that she was very loyal to the mission in Iraq and that he was similarly loyal to his service. "I was assaulted by somebody who was wearing the same uniform as him, and I just didn't want him to think bad of me. My children are pretty much my world." Smith's eyes fill with tears, and she pauses to collect herself. "I didn't want him to be upset because I was calling out somebody who was wearing his same uniform. They're supposed to be proud of what they do. And I'm proud of my sons. And in my mind, I live that war every day. I can make all sorts of excuses under the sun for bad behavior."

Her son advised her to make the formal complaint.

"He was like, 'Of course you're going to talk to CID, Mom. Of course you are.'" Smith smiles. "He doesn't think people should be allowed to wear his uniform and act like that. He's been in the war too and says it's no excuse. They're better trained than that. That's what my son thought. And he's not angry at his mom."

(c)2008 The Nation