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Why Did The DoD, And The White House, Oppose The Franken Rape Amendment?

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Sen. Al Franken (D-MN)

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On Oct. 6, the Senate passed an amendment that would guarantee rape victims employed by defense contractors a chance to take their case to court. The 30 Republicans who voted against it have been vilified. (See, for example, RepublicansForRape.org.) But the Department of Defense -- and, by extension, the White House -- also opposed the amendment. Why?

Some background: The amendment, introduced by Sen. Al Franken (D-MN), would prohibit the Pentagon from using contractors whose employment contracts force employees to arbitrate disputes rather than take them to court. The amendment applies to certain employee allegations, including rape, sexual assault and discrimination.

The Department of Defense sent a letter to the Senate urging lawmakers to vote no on the amendment, according to the Huffington Post.

The department argued that it and its subcontractors "may not be in a position to know about such things," i.e., whether contractors employ the mandatory arbitration clauses. "Enforcement would be problematic," the note read, because contractors may not be privy to what's in their subcontractors' contracts.

The department suggests that "it may be more effective" to seek a law that would prohibit the clauses in any business contracts within U.S. jurisdiction.

The White House does say it supports "the intent of the amendment," spokesman Tommy Vietor told TPM.

Vietor also said the White House is working with legislators to rework the amendment "to make sure it is enforceable."

The Senate legislation, part of a defense appropriations bill, must still be merged with a House bill before it can be signed.

Franken's amendment stems from the story of Jamie Leigh Jones who alleges that, as a 19-year-old employee of Halliburton subsidiary KBR, she was drugged, gang-raped and locked in a storage container by several of her co-workers. When she returned to the States, she found she couldn't bring the charges to court because of the contract she had signed with KBR.

Speaking on the Senate floor against the amendment, Sen. Jeff Sessions (R-AL) argued that it was a political move aimed at Halliburton.

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41 comments

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October 21, 2009 12:40 PM   

Um, dear Senator Sessions:

No, moron - it is not "…a political move aimed at Halliburton" or any other specific contractor. It's actually a minimal attempt to protect victims from misconduct on the part of employees and supervisors of and and all contracted firms, and—by extension—their corporate employer. The thought that a corporation would require advance indemnification against claims of criminal conduct on its part or on the part of its agents or employees is both reprehensible and ridiculous.

And, I say that as a former police officer and US Army officer with a background in military police and military intelligence matters.

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October 21, 2009 5:01 PM    in reply to Michael Lafferty

i find this appalling. obama has two daghtersu? or michelle? or his sister or niece?

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October 21, 2009 12:50 PM   

They should ban all mandatory arbitration.

Ban that from employment contracts and consumer contracts.

Voluntary arbitration is fine. But parties should always have the option of going to court.

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October 21, 2009 12:53 PM   

A problem with Al Franken's amendment is that it only stops funding of companies which make signing a mandatory arbitration agreement a condition of employment.

KBR could continue asking applicants to sign mandatory arbitration agreements, and tell the Pentagon that it wasn't a condition of employment.

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October 21, 2009 4:02 PM    in reply to Eric Jaffa

I used to work for a company that had "voluntary" drug tests. Refusing a drug test was one of their recognized ways of submitting a resignation.

I think we'd see the same thing here.

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October 21, 2009 12:55 PM   

Am I the only one who thinks that the DoD's explanation smells funny?

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October 21, 2009 1:00 PM   

The Department of Defense's explanation is ridiculous. They don't need to know what is in the contractors contracts. All DoD would need to do is insert language into all of its contracts that prohibits mandatory arbitration for the contractor's employees, just as the Franken amendment requires. Further, to deal with employment contracts that already exist or are "secret", the DoD would simply require that arbitration language, to the extent it exists in contravention of the Franken Amendemnet, would be unenforceable. Problem solved.

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October 21, 2009 2:41 PM    in reply to eric the red

Actually, I sort of see the point. There are so many federal regulations that it's difficult to keep track of them all, especially if the company is allowed to keep these kind of clauses in non-governmental contracts. But it seems easier to simply insert a line into the amendment that says if a contract is given with an arbitration clause from now on, that clause is invalid.

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October 21, 2009 5:09 PM    in reply to midnight rambler

This is the one part of that DoD memo I agree with - this should be something that no employee in America should have to sign. Congress could make all such agreements null and void, no matter if they were voluntary or not. Unfortunately, as all the nonsensical talk about using "tort reform" to drive down health care costs demonstrates, Congress isn't in a mood to pass that sort of legislation.

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Ann

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October 21, 2009 1:10 PM   

We're supposed to trust that they can figure out billion-dollar budgets, advanced weapons systems, multi-continent defense strategies, but they can't keep track of subcontractor contracts? Oh, I'm completely reassured now.

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October 21, 2009 1:50 PM    in reply to Ann

Well, I guess there go the rules against racial and sexual discrimination by contractors. You never know what your subs are doing, so the rules couldn't possibly be enforceable.

One big enforcement mechanism: any contractor or sub who takes the money and keeps the clause is defrauding the government, and any employee who knows of it can file a qui tam suit and pocket the money...

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EdA

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October 21, 2009 1:11 PM   

As Goethean and Eric the Red point out, the DOD explanation is completely absurd on its face. There are all sorts of clauses in laws and in the Federal Acquisition Regulations that "flow down" to all contractors and their sub-contractors, even if they may seem to be totally irrelevant. Civil rights, EEO, drug-free workplace (and drug-free people), water quality, air quality, no financing of terrorists, no kickbacks (for DOD, perhaps "Ha!"), and a lot of others -- these are just the ones that I thought of just while typing.

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October 21, 2009 1:44 PM    in reply to EdA

Exactly! The fucking DoD and WH act as though contractors have to be begged to bid/buy contracts. Government contracting is a multi-bizillion dollar business and the number of sleazy contractors who won/bought awards under Bushco proves it. That the DoD can't even account for billions of dollars it has spent, let alone oversee its contracts or add a simple contract flow down clause is mind boggling.

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October 21, 2009 5:17 PM    in reply to EdA

Correct. This is no less enforceable than a great many things DoD is already expected to enforce as part of contracting. Actually, I think it's easier than a lot of those things. As others have pointed out, once a contractor makes any such agreements with its own employees null and void, it's a simple step to ask its contractors if it has such things in place with affidavits for any subcontractors. Federal contracting is different from commercial or industrial contracting. The lawyers are used to that idea by now, I'm sure.

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October 21, 2009 1:12 PM   

Hey Sessions, would it be political if it was your daughter who was raped and not allowed to seek justice in a court of law?

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October 21, 2009 1:20 PM   

No one in the Senate has ever spewed more bull sh*t and said less than Senator Sessions. He has no shame or he is too stupid to understand what an ass he makes of himself. The producers should have used him for the young banjo player when they filmed "Deliverance!" The "Mouth of the South."

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October 21, 2009 1:21 PM   

The text:
===========================================================
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.

[Page: S10070] GPO's PDF (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.
===========================================================

So a company can still say, "Sign this."

As long as they don't say, "Sign this or we won't hire you," they can get Pentagon funding.

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October 21, 2009 2:19 PM    in reply to Eric Jaffa

No, they can't. To be enforceable, an arb agreement would need to be supported by consideration.

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October 21, 2009 2:35 PM    in reply to eric the red

By "consideration," you mean the person signing needs to have read what she signed?

The company could say, "Read these papers and then sign them."

As long as the company doesn't say, "Sign or you won't be hired" they are in compliance with Al Franken's amendment to be eligible for Pentagon funding.

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October 21, 2009 2:50 PM    in reply to Eric Jaffa

No, he means, "sign this and we'll give you an extra dollar." Or, "sign this and we promise to give you an extra dollar." "Consideration" is a thing bargained for--money, good, services, an act, a promise to do or not do something in the future. The exchange of consideration is what makes a contract binding and enforceable.

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October 21, 2009 1:42 PM   

They should just pass a separate law while we control all the votes that is:

It is illegal for employers to mandate arbitration contractually for criminal matters.

Criminal law > contract law.

A legal contract cannot supercede criminal law. How stupid.

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October 21, 2009 1:43 PM   

And make it illegal for employers to require it as a condition of employment, OR to refuse to hire employees for refusing arbitration.

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October 21, 2009 1:50 PM   

Why are you against privitizing the court system? Isn't it better if we take the power out of the hands of a publicly elected official and put it into an employee of an arbitration company? The arbitrator is chosen by a business who will repeatedly seek to provide arbitration services for an organization, but an individual may seek an arbitrator only once? Do you think that would jeopardize the bias of the arbitrator at all, having an employer who wants to obtain repeat business from the organization? What, and damage their own credibility in the process? Like the insurance companies just did with their Cooper/Waterhouse study? Rush limbaugh said no business would ever compromise themselves because of the possibility of this occurance, losing credibility. But then again, how long did Ford produce pick-up trucks with exploding saddle gas tanks, or Ford Pintos? Or carcinogenic cigarettes, or ... gee there are a lot of examples to suggest arbitrators are not going to be unbiased, aren't there? Judges are not perfect, but I trust them more then I do private enterprise.

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October 26, 2009 4:54 PM    in reply to GregorZap

The arbitrarion in the case that prompted Franken's amendment was required to be accomplished by the company's own arbitrators. How fair ist that to the victim?

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October 21, 2009 1:55 PM   

DOD, GOP: Come on, what fun is war without rape and pillage?

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October 21, 2009 7:42 PM    in reply to NobleCommentDecider

Actually, Halliburton has HQ in both Texas AND Dubai, United Arab Emirates. They are kind of like co-capitals. It's a true reflection of their divided loyalties and duplicitous practices, although I never thought they were in business for anyone but themselves and their own profits, whether that comes in dollars or dirham means nothing to them. All they want is wealth in any language. BTW, their President lives in Dubai now too.

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October 21, 2009 2:00 PM   

Sessions is now supporting foreign corporations? Halliburton moved to Dubai..

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October 21, 2009 2:09 PM   

@seafarer: Criminal law does trump civil law. However, in this case, where the crimes were committed in Iraq, there was no US court with jurisdiction for a criminal prosecution. Ms. Jones' only recourse in a US court would have been a civil action, but her contract with KBR prevented her from bringing a civil suit in court - she could only seek arbitration.

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October 21, 2009 2:36 PM    in reply to thomast

That, and as I understand it, vital evidence including photos "disappeared" from the file, making criminal prosecution much more difficult.

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October 21, 2009 2:20 PM   

So wasting billions of dollars isn't a good enough reason to look into the contracts the government has with defense contractors and subcontractors, but avoiding the protection of rape victims *is*?

Our government am broken.

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October 21, 2009 2:29 PM   

Jesus H. Christ. Executive identifies what it thinks is a technical problem with the wording of an amendment, White House says it is working with the Senate to correct the issue and somehow that gets run through the Betrayal Decoder Rings and translated as perfidious sellout to pro-rape lobby.

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October 21, 2009 7:00 PM    in reply to The Commenter Formerly Known as NCSteve

Amazing isn't it how the facts get distorted.

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AJM

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October 26, 2009 1:04 PM    in reply to lousgirl84

Funny, the 'pro-rape' lobby involved seems to be some of the defense industries. Last time I looked they had $$$$$$$$$!

At least make your objections plausible.

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October 21, 2009 2:37 PM   

Senator Sessions:

KBR was wholly spun off of Halliburton in the Spring of 2007. KBR's IPO was in 2006. Halliburton has publicly washed its hands of this matter.

That said, this incident remains a black eye on that company.

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October 21, 2009 2:58 PM   

It occurs to me that this amendment could also be the template for legislation to reverse off-shore outsourcing. Just make it illegal for any corporation whose employment standards worldwide do not conform to the labor conditions and minimum wage requirements of the US to do any business with, or within - or to market any goods or services through third parties to or within - the United States.

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October 21, 2009 4:17 PM   

My guess would be that there MIGHT be two companies with contract clauses that say an employee can't sue because they were raped. The Pentagon and GOP act there are thousands, maybe everyone in the US Chamber of Commerce!

BS

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October 21, 2009 5:06 PM    in reply to hychka

The contract clauses don't say anything specific about rape or sexual harassment. They say that the employee waives the right to sue the employer in court, and must pursue all grievances through arbitration, on ANY issue arising from the employment. And there are lots of companies that do that.

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October 21, 2009 7:53 PM    in reply to thomast

Rape is a grievance? Like what, having your morning break cut by five minutes?

Rape is a crime. And if Americans can gang-rape anybody, whether in Iraq or on one of the moons of Jupiter, and get away with it, there's a lot more that needs fixing than arbitration clauses in employment contracts.

Hey, if she had suffocated in that storage container, she couldn't even file an arbitration claim. How tidy.

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October 21, 2009 4:50 PM   

The only thing I want to hear from the DoD is "Sir Yes Sir" and "Of course we can do a lot more for a lot less."

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October 21, 2009 9:47 PM   

Employment contracts are one thing. Trying to claim that one can perform on a Federal contract by "any means necessary" is a crock of shit.

If they were performing on a Federal contract then the idea that they would be able to keep their employment policies or contracts separate from that is a bigger crock of shit.

The only thing that should have been done differently is an avenue, or agency or advocacy group tasked (and funded) to field these "grievances". Asking the DoD to self-police it is just stupid. You know, because they have such a stellar track record on sexual abuse of women in the armed services or the detainees in their care.

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October 22, 2009 1:53 AM   

The title of this story is misleading at best. I atually don't give people the benefit of the doubt anymore. The White House actually agrees with the amendment, but they want to make sure it is enforceable. Ummm, that's almost entirely differnet than opposing it. A couple other pretend dems on this site join in with the phony outrage as usual.

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