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September 24, 2015

Hold Military Contractor KBR Accountable for Deadly Trafficking Scheme

In 2004, thirteen Nepali laborers were offered jobs in a luxury hotel and restaurants in Amman, Jordan. The families of these young men took on enormous debt to pay recruiting fees for jobs they believed would lift their loved ones out of poverty. But at the end of their long journeys, the workers found not the hospitality jobs they were promised, but a trafficking scheme that forced them into a war zone in Iraq, where they were sent to work for a U.S. military contractor on the Al Asad Air Base.

Twelve of the men never made it. Their car, traveling without security, was stopped by members of the insurgent group Ansar al-Sunna. The insurgents executed them before posting graphic videos of their murders online for their families to see. A thirteenth man, traveling in a different car, arrived at Al Asad. There, he was held against his will and forced to work in a warehouse for 15 months, supervised by U.S. military contractor Kellogg Root & Brown (“KBR”).

At the same time that KBR and its subcontractor, Daoud & Partners, were exploiting vulnerable workers from a transnational human trafficking pipeline, the U.S. military was engaged in an aggressive anti-trafficking campaign. President Bush announced a “zero tolerance” policy toward trafficking by the military and its contractors in 2002, calling trafficking “a modern day form of slavery.”

In 2003, the Inspector General of the Department of Defense, Joseph Schmitz, produced reports on anti-trafficking efforts at U.S. bases in South Korea and Bosnia-Herzegovina and Kosovo. IG Schmitz made a number of powerful public statements decrying human trafficking on and around military bases. He told Congress that trafficking was, “in a word, un-American.” The United States further expressed its commitment to national and global anti-trafficking campaigns through the 2000 Victims of Trafficking Protection Act and its reauthorizations.

In 2008, the one surviving trafficked worker and the families of the twelve who were murdered sued KBR and Daoud in U.S. federal court. The plaintiffs alleged multiple violations of U.S. law, including violations of the 2003 Trafficking Victims Protection Reauthorization Act (“TVPRA”) and the Alien Tort Statute (“ATS”). Although the district court originally allowed many of plaintiffs’ claims to proceed, it gradually backtracked on parts of its own decision, finally ruling in 2014 that neither the TVPRA nor the ATS could be applied outside of the United States.

Human Rights First is working with a group of retired U.S. admirals and generals to file an amicus brief in the Fifth Circuit challenging the district court’s decision. The retired military leaders argue that, in light of the transnational nature of trafficking, the legal framework in place at the time, and, above all, the military’s own overt anti-slavery efforts, KBR and Daoud knew that they could not traffic with impunity. The TVPRA was always intended to apply to circumstances like these.

Similarly, as the retired military leaders argue, the ATS applies here because, although the torts took place outside of the territorial United States, they occurred in an area under effective U.S. control. And even if the court were to find that the area was not under U.S. control, one test for the extraterritorial application of the ATS is whether the alleged tort “touches and concerns” U.S. interests. A transnational trafficking pipeline to U.S. military bases is precisely the sort of case where U.S. interests are implicated.

In order to maintain U.S. leadership in global anti-trafficking efforts, and in keeping with Congressional direction on anti-trafficking, U.S. courts should keep their doors open to workers trafficked into forced labor on U.S. military bases.