On Wednesday, after fighting tooth-and-nail in the lower courts to keep the case from going to trial, KBR announced that it was dropping its Supreme Court appeal in the case. (The company actually withdrew its petition to the court on March 11, according to KBR spokesperson Heather Browne. This was less than two weeks after it was awarded a new $2.3 billion logistics contract by the Army.) Jones, who says she was raped by coworkers and then imprisoned in a shipping container for three days by KBR staffers who wanted to keep her complaint quiet, had been barred from pursuing her sexual harassment case in the courts by a provision in her employee contract: The fine print said all such issues must be resolved via the company’s own binding arbitration process.
I first reported on the case for The Investigative Fund, in partnership with The Nation, as part of an expose on the rash of rape and sexual harassment allegations lodged against Halliburton, KBR, and its subsidiaries. One Houston firm alone was representing more than fourteen women with similar rape or harassment complaints. But Jones, like the other women, was hit with a double-whammy of obstruction.
First, there was the contractual requirement that Jones pursue her complaint in an extralegal Halliburton dispute-resolution program implemented in 1997 under then-CEO Dick Cheney. Instead of taking their case to the US courts, employees agreed, before they were hired and shipped to Iraq, that all disputes would be resolved via the clandestine arbitration process.
Second, the US Justice Department is charged with pursuing criminal investigation of US defense contractor employees in Iraq, but seems disinclined to do so. Even though the alleged rapes took place in Iraq, they occurred on the quasi-US soil of a military base. That means the Military Extraterritorial Jurisdiction act and the Patriot Act’s special maritime and territorial jurisdiction provisions put the US Department of Justice in charge of prosecutions.
But the DOJ wasn’t being very aggressive in its pursuit of these crimes. At the time of Jones’s rape, approximately 180,000 American civilians were working for defense contractors there–a small city of people–and the DOJ had not convicted a single one in a violent crime.
All this kicked up a flurry of concern when The Nation story broke in April 2008 and, on the heels of multiple Congressional investigations, indignation grew. How could US taxpayers be awarding billions of dollars in defense contracts to companies allowed to skirt the law? US Senator Al Franken stepped into the fray and in December 2009 was able to get a provision included in the 2010 Defense Appropriations bill that banned government contracts from going to companies that used this sneaky "binding arbitration" clause to circumvent the courts. (He had a little help whipping up righteous anger from Jon Stewart who referred to it on his show as " the old ‘it’s okay if you get raped’ clause in government contracts" and re-enacted the imaginary employee’s first meeting with HR: "Here’s your inoculation verification form, your rape consent form, your 1099.")
Does this mean KBR is graciously giving up on the Jones case?
The company seems to be laying the groundwork for a battle that must now take place publicly, in the courts, by invoking that old she-wanted-it canard. In a document posted on the company’s website, KBR, after first stating "it would be inappropriate to comment on the specifics of the case," goes on to do just that: A firefighter accused of raping Jones says it was "consensual sex," KBR states. And get this: "several witnesses present at the social gathering outside the barracks observed her having several drinks and flirting" with the firefighter.
In an e-mailed statement, KBR’s spokesperson Heather Browne told me that KBR’s decision to withdraw its petition from the Supreme Court was directly related to passage of the Franken amendment. But she conceded little ground. "It is our belief that the language of the amendment is very broad and vague," she said. "As a result, KBR did not want to risk being in violation of the amendment, so the company withdrew its petition."