Commentary

Yes, KBR, Congress Is Talking About You

By David Isenberg
This article appeared on the Huffington Post on December 26, 2009.

Although it was not mentioned by name there are some provisions in the FY 2010 Defense Appropriations bill which are very clearly aimed at KBR, the former Halliburton company. These are not the sort of provisions that will be making KBR officials happy.

Consider Sec. Sec. 8116, “Limitation on Availability of Funds for Execution of Contracts Under LOGCAP.” It says:

No later than 90 days after enactment of this Act none of the funds appropriated or otherwise made available by this Act may be obligated or expended for the execution of a contract under the Logistics Civil Augmentation Program (LOGCAP) unless the Secretary of the Army determines that the contract explicitly requires the contractor—

(1) to inspect and immediately correct deficiencies that present an imminent threat of death or serious bodily injury so as to ensure compliance with generally accepted electrical standards as determined by the Secretary of Defense in work under the contract;

For those who have forgotten, it was KBR which has done the majority of the electrical work at U.S. facilities in Iraq. That work resulted in faulty wiring in far too many facilities, resulting in the low-level electrocutions of 16 U.S soldiers and 2 contractors and hundreds more incurred shock-related injuries in Iraq over a span of four years.. The most recent was 25-year-old Adam Hermanson, a US Air Force veteran-turned private security contractor who died in a shower at the compound of his employer, Triple Canopy, in Baghdad’s Green Zone on September 1, 2009. That a contractor’s apparently shoddy work ended up killing a contractor can only be viewed as ironic.

In October an Army task force re-inspecting thousands of potentially unsafe U.S. facilities in Iraq for faulty electrical wiring said KBR, which previously ordered to conduct inspections of its own work, placed 5,600 facilities on a “deferred” list — meaning they were low priority or there were no plans to inspect them.

Officials with the Defense Department’s Task Force SAFE said many of the buildings on KBR’s deferred list were still being used by soldiers.

Those wanting details on KBR’s offenses over the years should head over Ms. Sparky , an excellent blog on the perils of KBR.

And then there was part 3 of Sec. 8116, which says:

(3) establish and enforce strict standards for preventing, and immediately addressing and cooperating with the prosecution of, any instances of sexual assault in all of its operations and the operations of its subcontractors.

For those who follow KBR this is a not very veiled reference to KBR’s rape problem. Prompted by the allegation that former KBR employee Jamie Leigh Jones was drugged, stripped, beaten and gang-raped by her co-workers on her fourth day in Iraq in 2005 , this provision bans defense contractors from forcing employees to use arbitration to resolve claims of discrimination and sexual assault.

The provision is a result of an amendment introduced by Sen. Al Franken (D-MN) to the appropriations bill.

Employers and other potential lawsuit targets generally prefer binding arbitration because it keeps disputes out of the court system, where juries can inflict damaging verdicts. The no-arbitration provision would ban defense contracts worth more than $1 million with companies that seek to enforce or establish binding requirements in employee contracts in certain circumstances.

On May 16, 2007, Jones filed a civil lawsuit against KBR and former parent corporation Halliburton. KBR requested a private arbitration, and claims this is required by her employment contract. On September 15, 2009 the 5th Circuit Court of Appeals in New Orleans ruled Jamie Leigh Jones’ federal lawsuit against KBR and several affiliates can be tried in open court.

The provision covers any requirements that force workers to use arbitration to resolve claims of sexual assault, sexual harassment, assault, battery, infliction of emotional distress, false imprisonment and negligent hiring.

Of course, as is usually the case, Congress left in the usual all purpose national security escape clause for a contractor.

(b) Waiver.—The Secretary of the Army may waive the applicability of the limitation in subsection (a) to any contract if the Secretary certifies in writing to Congress that—

(1) the waiver is necessary for the provision of essential services or critical operating facilities for operational missions; or

(2) the work under such contract does not present an imminent threat of death or serious bodily injury.

David Isenberg is an analyst in national and international security affairs and a US Navy veteran. He is also a member of the Coalition for a Realistic Foreign Policy, an adjunct scholar with the Cato Institute, and the author of a new book, Shadow Force: Private Security Contractors in Iraq.