Veterans for Common Sense

Soldiers returning from Iraq and Afghanistan who claim the Department of Veterans Affairs hasn’t provided the services they need got their day in court Monday, when a bench trial before U.S. District Court Judge Samuel Conti began in San Francisco. The case, Veterans for Common Sense v. Peake, is expected to continue through May 1.

Morrison & Foerster senior counsel Gordon Erspamer represents the two organizations that are plaintiffs in the case: Veterans for Common Sense and Veterans United for Truth. Erspamer, who is co-chair of MoFo’s energy group, also has 30 years of experience handling pro bono litigation on behalf of veterans. He says this case is the first of its kind against the DVA.

The suit claims that many disabled combat veterans are in dire need of counseling and other services they are not currently receiving from the U.S. government. Erspamer estimates that 120 veterans who served in Iraq or Afghanistan commit suicide each week. The veterans’ groups are not seeking monetary damages but want reform of a health care system in which they allege a huge backlog of cases prevents veterans from receiving timely care.

The case was initially filed last July as a class action but the plaintiffs decided not to seek class certification. “It’s hard to do a class action with veterans who have [post traumatic stress disorder],” Erspamer says. “We think we can get the relief we need through these organizational plaintiffs.”

Disability Rights Advocates, a Berkeley-based nonprofit, is serving as Erspamer’s co-counsel.

Daniel Bensing, the Department of Justice lawyer who is lead counsel for the DVA, declined to comment. A Justice Department spokesperson also declined to comment.

But in a pretrial brief filed by the DVA on April 14, the government argued that “constitutional and statutory considerations” should preclude the federal court from hearing many of the veterans groups’ claims and ordering the remedies they seek.

Several high-ranking DVA officials are expected to testify at the trial, according to a witness list included in the DVA’s brief.

Arturo Gonzalez, a partner and chair of the trial practice group at MoFo, is also working on the case with San Francisco-based associates Alexandria Amezcua, Suzanna Brickman, Jennifer Gould, Ryan Hassanein, Heather Moser, Natalie Naugle and Stacey Sprenkel. Assisting lead DRA lawyer Sidney Wolinsky are Jennifer Bezoza, Katrina “Kasey” Corbit and Ron Elsberry.

April 22, 2008 – San Francisco, CA — The Department of Veterans Affairs is struggling to meet the skyrocketing demand for medical services as an unanticipated flood of former soldiers from Iraq and Afghanistan seek help along with a parallel surge of claims from aging Vietnam veterans, according to both sides in a trial that opened Monday in federal court here.

The lawsuit was brought by two groups, Veterans for Common Sense and Veterans United for Truth, seeking to force the government to streamline its procedures for treating former soldiers, particularly those suffering from combat trauma and other mental health problems.

Opening arguments painted sharply different pictures of the department’s success. The veterans groups said the department was ignoring a mental health crisis and was so swamped that former soldiers were dying needlessly. The defense countered that the country’s largest medical care system was adding the personnel needed to cope.

“Our ultimate goal is guaranteed health care, timely health care, timely decisions on disability payments,” Gordon P. Erspamer, the lead lawyer representing the two veterans groups, said in an interview.

“The system is choking on the claims; the delays are unconscionable,” Mr. Erspamer said.

The trial, before Judge Samuel Conti, an Army veteran of World War II, does not seek monetary damages but asks the court to appoint a special master or otherwise intervene to make the department run more efficiently.

Claims for help from the department jumped 25 percent in recent years, hitting 838,000, Richard G. Lepley said in his opening statement for the government.

The defense said the jump was generated by a combination of veterans returning from Iraq and Afghanistan, where head injuries that can lead to stress problems are a signature issue, as well as an upswing of Vietnam veterans seeking help for medical conditions associated with aging. News coverage from the current wars has also led to new mental health problems among Vietnam veterans, said Kerri J. Childress, a spokeswoman for the veterans department in Palo Alto, Calif.

“I don’t think anybody had any idea how long the war was going to go on,” Ms. Childress said, referring to Iraq. She added that there was no way to fully anticipate the demand for medical care from Vietnam veterans.

The department is falling short of its goal of addressing claims within 125 days, saying that it was now closer to 180 to 185 days, Mr. Lepley said. But he said the department had added 3,700 mental health care professionals in the last two years, bringing the total to 17,000, and started a program where anyone feeling suicidal could get attention within 24 hours and a follow-up appointment within two weeks, he said. The program started last summer, he said, so it is too new to measure its effectiveness.

Over all, there are 6,600 suicides per year among the 25 million veterans of all wars, representing about one in five suicides in the country, Ms. Childress said. There are an estimated 1,000 suicide attempts per month among the 7.8 million veterans treated by Veterans Affairs, she said. The suicides tend to be more frequent among older veterans, she said, citing statistics from data collected by the Centers for Disease Control and Prevention.

The number — 126 suicides a week, higher than the 120 published in previous studies — was in a December e-mail message from Dr. Ira Katz, the head of mental health services for Veterans Affairs, to Dr. Michael J. Kussman, the under secretary for the Veterans Health Administration in the department. Mr. Erspamer displayed the message in his opening argument.

The department has long been reluctant to release specific numbers regarding suicides or suicide attempts, lawyers for the veterans groups said. “We certainly think there was a cover-up in some sense,” said Heather Moser, a lawyer for the plaintiffs.

A second department e-mail message from Dr. Katz shown at the trial starts with “Shh!” and refers to the 12,000 veterans per year who attempt suicide while under department treatment. “Is this something we should (carefully) address ourselves in some sort of release before someone stumbles on it?” it asks.

April 22, 2008 – Congress held a hearing last week on ways to modernize the benefits claims system at the Department of Veterans Affairs, which has a backlog of 600,000 claims and counting.

Nothing unusual about that — and that’s the problem.

As the backlog swells with new claims from the still-rising tide of veterans of the wars in Iraq and Afghanistan, lawmakers are looking for options to deal with this crisis.

It now takes an average of six months for VA to make a decision on an initial benefits claim. It takes two years to rule on appeals of the initial decisions.

VA’s response to date — hiring a small number of extra claims adjudicators — has been disappointingly timid. Bolder action is needed.

One of the most promising options, crafted by Rep. Doug Lamborn, R-Colo., would have VA automatically approve simple, clear-cut claims that don’t need extensive documentation. This would leave the flesh-and-blood adjudicators to work on the more complex claims.

Former VA Secretary Jim Nicholson threw his support behind that idea last summer, making further debate irrelevant.

Other ideas include giving greater benefit of the doubt to veterans who file post-traumatic stress disorder claims, which make up an increasing proportion of the backlog, and a potential overhaul of the way VA caseworkers go about deciding claims.

With U.S. operations in Iraq and Afghanistan showing no signs of ending soon, the backlog problem is not going to get better on its own.

Lawmakers must take concrete steps in the 2009 VA budget to deal with this problem. When they do, VA must salute smartly and get it done.

On this issue, it’s long past time to stop talking and start doing.

April 21, 2008 – Staff Sgt. Chad A. Barrett was determined to muddle through a third tour of duty in Iraq.

Though his medical records show he suffered from acute post- traumatic stress disorder, had difficulty sleeping and was struggling with a traumatic brain injury, he assured his commanders and doctors that he could again serve his nation.

Yet, only weeks after arriving in Mosul in northern Iraq, Barrett, 35, a member of Fort Carson’s 4th Infantry Division, was struggling.

“I am not getting any better, and really bad thoughts are running around my head,” Barrett wrote in an e-mail to his father after five fellow soldiers were killed on Jan. 28 in an ambush by insurgents.

“Part of me wishes that one of those guys was me,” he wrote. “I am goin(g) to try to talk to someone about sending me back home, cause I feel like I am just going to cause harm out here.”

But Barrett would never make it home. Just five weeks into his tour, on Feb. 2, he went to his room and swallowed a lethal combination of antidepressants and sleeping pills that were prescribed for him.

Barrett is not alone.

The Associated Press in January reported 121 Army suicides in 2007, an increase of more than 20 percent over 2006, based on internal briefing documents the news organization obtained.

A RAND Corp. study released last week estimates that 300,000 U.S. troops – about 20 percent of those deployed – are suffering from depression or post-traumatic stress from serving in Iraq and Afghanistan.

Earned medals

In the days leading up to his deployment, Barrett lobbied his commanders and doctors to drop a medical evaluation process that appeared destined to end his 11-year Army career in early retirement for a disability.

Now Barrett’s parents in Tennessee want to know why the Army’s medical professionals were swayed by their son’s entreaties.

“In my experience, you don’t tell the doctors what to do, the doctors tell you,” said Chad Barrett’s mother, Linda Helton.

Fort Carson has faced scrutiny in recent months for deploying dozens of soldiers deemed unfit for duty.

Officials at Fort Carson won’t discuss the Barrett case, citing medical privacy rules, but post commander, Maj. Gen. Mark A. Graham, issued a statement.

“Our thoughts and prayers remain with the Barrett family and friends,” he said. “The specifics of this case are currently under investigation and no further information can be released until the conclusion.”

During a memorial service in March, Barrett’s Army comrades described him as an expert marksman with a friendly smile and selfless attitude.

“He didn’t have much direction growing up,” said his father, Ronnie Barrett. “When he joined the Army he found himself and became a man.”

Chad Barrett served in Texas, Virginia and Germany before completing two tours in Iraq. Along the way, he earned the Army Commendation Medal, the Army Achievement Medal and several other honors, including a Combat Action Badge.

Living in pain

The after-effects of combat took their toll, however.

During his second deployment to Iraq, Barrett survived several nearby explosions, including one that left him briefly unconscious. When he returned home to Fountain, he found it difficult to relax and enjoy life. He was gripped by agonizing headaches, said his wife, Shelby Barrett.

“There were times when he was on the ground, holding his head, because he was in so much pain,” she said.

Chad Barrett also weathered violent dreams, she said.

Finally, in June 2007, Barrett was hospitalized briefly following what medical records indicate was a suicide attempt – although Shelby Barrett believes her husband suffered a bad reaction to various medications prescribed for him at Fort Carson’s Evans Army Community Hospital.

Barrett later was diagnosed with post-traumatic stress disorder, a condition where witnesses or survivors of a traumatic event face ongoing emotional and other problems.

According to an Army medical record of Sept. 13, 2007, Chad Barrett’s PTSD was a barrier to his retention in the Army. Dr. Clark L. Jennings of Evans’ hospital psychiatry service wrote that Barrett should be given “no assignments remote from definitive psychiatric care” and should be barred from carrying a weapon.

On Oct. 24, 2007, at least one of Barrett’s commanders backed a medical evaluation process and possible retirement. Barrett was no longer able to perform daily duties. He was described as distant and had previously attempted to harm himself.

“All specialists and command agree it is time for Chad to be removed from the United States Army,” the commander wrote.

Treatment planned

Weeks later, Shelby Barrett said she attended a meeting between her husband and Fort Carson doctors and commanders, who decided to end her husband’s medical evaluation.

“Chad didn’t want me to oppose him in the meeting,” Shelby Barrett said. “So I didn’t. The plan was that he could be deployed and receive regular psychological help once he was in Iraq.”

An Army Medical Evaluation Board, or MEB, may be terminated at the discretion of a physician if the physician determines the soldier meets all of the Army’s retention standards, according to Michael P. Griffin, deputy director of patient administration for Army Medical Command.

“An MEB cannot be terminated by a solider,” Griffin said.

During a Dec. 21, 2007, psychological visit just before his Christmas Day deployment, Barrett had eight active prescriptions, including Klonopin for bouts of anxiety and Ambien to help him sleep, his medical records indicate.

Dr. Jonathan A. Olin, an Evans hospital psychiatrist, concluded that Barrett had “no suicidal intent” at that time.

Just weeks later, though, Barrett had thoughts of harming himself.

“I might be a lot stronger, but I have also went through a lot, I know not as much as some, but everyone is different and certain people can only take so much before they break,” he wrote in an e-mail to his parents. “I feel like I am at that point. I can try to play tough all I want, but I know that I am not and that I need help.”

Barrett’s parents encouraged him to seek help, but he told them he was having difficulty finding it and that he had difficulty sleeping because he was assigned as an overnight radio operator.

Barrett sent his last e-mail to his parents, claiming the Army only wanted “the correct number of people on the ground . . . no matter what the cost.”

“Well everyone will find out the cost soon enough,” he wrote hours before he died.

Shelby Barrett said her marriage to Chad was strained and that was part of her husband’s suffering, but she does not buy into the official explanation.

Her husband’s death might have been an unintended reaction to his medications, she said.

“I won’t believe it was a suicide until the final report is issued,” she said. “I have to see it for myself.”

Linda Helton wants the Army to release the note found on her son’s body.

Ronnie Barrett said he is proud of his son, even though he may have ended his own life. He noted that Army Secretary Peter Geren attended his son’s burial at Arlington National Cemetery.

“I appreciate the Army for honoring him as a hero,” Ronnie Barrett said. “Yet I also feel the Army let my son down. Chad felt he was just a number and the Army didn’t care.”

Army suicides by year

2003 2004 2005 2006

* Active duty

79 67 87 99

* Soldiers deployed in Iraq or Afghanistan

26 13 25 30

March 30, 2008 – Randy Mills, a Vietnam veteran who lives in Mount Pleasant, occasionally gets newsletters reporting that another veteran committed suicide.

“It brings back memories of what we went through there,” Mills said. He was part of an elite Army force that worked in small teams of five or six men, traveling long distances to monitor enemy activity.

While Mills and his closest friends are doing well, he said, it’s hard to hear the bell toll for his fellow Long Range Reconnaissance Patrol members.

Veterans facing retirement are at an alarmingly high risk for depression and suicide. A national push by Veterans Affairs to ratchet up its mental health services has led to the recent hire of Ralph H. Johnson VA Medical Center’s first suicide prevention coordinator, neuropsychologist Mark De Santis.

“It’s not just a response to combat veterans,” De Santis said. “While we do see a lot of combat veterans, we have a large retirement community, which is at least of equal weight.”

The high rate of suicide among younger veterans received much attention in the fall when VA researcher Kara Zivin and colleagues released their findings.

Overall, the researchers found that from 1999 to 2004 the suicide rate for veterans was 88.3 per 100,000 person-years. A person-year is a statistical formula with the number of years observed multiplied by the number of people in a group.

Broken down by age group, the youngest veterans, ages 18 to 44 had the highest rate at 95 suicides per 100,000 person-years.

But not far behind them was the age group of 65 and older, at 90 suicides per 100,000 person-years, versus the middle group of 45- to 64-year-olds at 78 per 100,000.

It can be hard to tell a 65-year-old, who survived a jungle war 40 years ago, that it’s time to leave his identity behind yet again, De Santis said. Ask a man who he is, and he will tell you what he does for a living. “Here comes retirement, and they don’t have a sense of purpose,” he said.

Add to that losing family members and friends they’ve known for 30 or 40 years, and the problem compounds. “White males above 70 have a two times greater risk of any population to commit suicide,” he said.

Dick Walsh, 70, is a Vietnam naval veteran and former state commander of the American Legion. “We’ve been intervening and trying to help out people who may be prone to suicide and PTSD (post-traumatic stress disorder),” he said. He knows of one veteran who committed suicide.

The demographic of the American Legion is age 59, so Walsh hopes to reach baby boomers through education and outreach.

About 13 percent of all Americans have suicidal thoughts, De Santis said. That’s 400,000 out of 3 million people. Of that number, nearly 4 percent have actually created a suicide plan, he said.

As the VA’s suicide prevention coordinator, De Santis tracks high-risk patients, or those who have attempted suicide or told someone they are planning to. “We extend everything we have,” he said. “Not everybody is going to get better at the same rate.”

After Mills returned to Charleston from Vietnam, he bought Gene’s Haufbrau, a tavern in West Ashley, which he owned for 30 years. Now retired, Mills receives full disability for post-traumatic stress disorder.

He enjoys keeping up with his war buddies and is planning a reunion in October for E Company Long Range Patrol 20th Infantry. He says he is satisfied with his life, but sometimes wrestles with the randomness of fate, why he lived and others didn’t.

April 19, 2008 – America’s most senior general was “hoodwinked” by top Bush administration officials determined to push through aggressive interrogation techniques of terror suspects held at Guantánamo Bay, leading to the US military abandoning its age-old ban on the cruel and inhumane treatment of prisoners, the Guardian reveals today.

General Richard Myers, chairman of the US joint chiefs of staff from 2001 to 2005, wrongly believed that inmates at Guantánamo and other prisons were protected by the Geneva conventions and from abuse tantamount to torture.

The way he was duped by senior officials in Washington, who believed the Geneva conventions and other traditional safeguards were out of date, is disclosed in a devastating account of their role, extracts of which appear in today’s Guardian.

In his new book, Torture Team, Philippe Sands QC, professor of law at University College London, reveals that:

· Senior Bush administration figures pushed through previously outlawed measures with the aid of inexperienced military officials at Guantánamo.

· Myers believes he was a victim of “intrigue” by top lawyers at the department of justice, the office of vice-president Dick Cheney, and at Donald Rumsfeld’s defence department.

· The Guantánamo lawyers charged with devising interrogation techniques were inspired by the exploits of Jack Bauer in the American TV series 24.

· Myers wrongly believed interrogation techniques had been taken from the army’s field manual.

The lawyers, all political appointees, who pushed through the interrogation techniques were Alberto Gonzales, David Addington and William Haynes. Also involved were Doug Feith, Rumsfeld’s under-secretary for policy, and Jay Bybee and John Yoo, two assistant attorney generals.

The revelations have sparked a fierce response in the US from those familiar with the contents of the book, and who are determined to establish accountability for the way the Bush administration violated international and domestic law by sanctioning prisoner abuse and torture.

The Bush administration has tried to explain away the ill-treatment of detainees at Guantánamo Bay and Abu Ghraib prison in Iraq by blaming junior officials. Sands’ book establishes that pressure for aggressive and cruel treatment of detainees came from the top and was sanctioned by the most senior lawyers.

Myers was one top official who did not understand the implications of what was being done. Sands, who spent three hours with the former general, says he was “confused” about the decisions that were taken.

Myers mistakenly believed that new techniques recommended by Haynes and authorised by Rumsfeld in December 2002 for use by the military at Guantánamo had been taken from the US army field manual. They included hooding, sensory deprivation, and physical and mental abuse.

“As we worked through the list of techniques, Myers became increasingly hesitant and troubled,” writes Sands. “Haynes and Rumsfeld had been able to run rings around him.”

Myers and his closest advisers were cut out of the decision-making process. He did not know that Bush administration officials were changing the rules allowing interrogation techniques, including the use of dogs, amounting to torture.

“We never authorised torture, we just didn’t, not what we would do,” Myers said. Sands comments: “He really had taken his eye off the ball … he didn’t ask too many questions … and kept his distance from the decision-making process.”

Larry Wilkerson, a former army officer and chief of staff to Colin Powell, US secretary of state at the time, told the Guardian: “I do know that Rumsfeld had neutralised the chairman [Myers] in many significant ways.

“The secretary did this by cutting [Myers] out of important communications, meetings, deliberations and plans.

“At the end of the day, however, Dick Myers was not a very powerful chairman in the first place, one reason Rumsfeld recommended him for the job”.

He added: “Haynes, Feith, Yoo, Bybee, Gonzalez and – at the apex – Addington, should never travel outside the US, except perhaps to Saudi Arabia and Israel. They broke the law; they violated their professional ethical code. In future, some government may build the case necessary to prosecute them in a foreign court, or in an international court.”

April 20, 2008 – Spc. Justin Rollins

On January 3, 2008, military blogger Major Andrew Olmsted was killed in Iraq. Andrew wrote a blog to be published in the event of his death. While Americans were losing interest in Iraq, Andrew was trying to find the right words to express the peace he had made with the possibility of his death there. Like many who have written about Andrew Olmsted’s remarkable final words, I did not have the honor of knowing Andrew personally but wish now that I had.

Andrew’s blog is replete with self-deprecating humor, which I immediately found endearing. Andrew is also very clear about his reason for being in Iraq–which transcends the politics of war:

“Soldiers cannot have the option of opting out of missions because they don’t agree with them: that violates the social contract. The duly-elected American government decided to go to war in Iraq. (Even if you maintain President Bush was not properly elected, Congress voted for war as well.) . . . Whether or not this mission was a good one, my participation in it was an affirmation of something I consider quite necessary to society. So if nothing else, I gave my life for a pretty important principle; I can (if you’ll pardon the pun) live with that.”
At the same time, he writes that he hopes his death can be a reminder to others about the true costs of war-the costs that Americans, academics, and politicians tend to overlook when calculating the pros and cons of military engagements. The trouble, of course, is that there are no figures for these costs, no meaningful measurements. I believe that numbers alone are insufficient. The value of a human life, and the value of Andrew’s life, cannot be properly expressed by a number, any number.
At the end of his blog, Andrew worries about the suffering his wife will endure and wishes he had been a better husband. It is official. I adore Major Andrew Olmsted. A man I never met and never will. Which brings me to another soldier I posthumously adore: Specialist Justin Rollins.

Justin was part of the 82nd Airborne Division when his team found a litter of motherless puppies. They rescued the puppies and brought them back to their camp. Justin had his picture taken that night holding one of the puppies–a glimpse of the human heart beating beneath all that army-issued gear.

The following day, Justin was killed by a roadside bomb.

My husband asks me why I do things like this: cut Justin’s photo out of the paper and put it on our refrigerator, print out Andrew’s final blog. I do it because I have to. I do it because I don’t want to reduce a human life to a single digit. I do it because it isn’t about what we are losing when a soldier dies, it is about who we have lost.

I just wish every other American was doing it too. If they were, maybe Iraq would still be the number one issue on voters’ minds in November and I would have less people to adore after they have died.

“War is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and patriotic feeling which thinks that nothing is worth war is much worse. The person who has nothing for which he is willing to fight, nothing which is more important than his own personal safety, is a miserable creature and has no chance of being free unless made and kept so by the exertions of better men than himself.”  – John Stuart Mill

I believe this is why I am here and why we are here and why Milspouse Press is here: to remind the American public that “the military” is not some faceless entity.  It is an institution comprised of human beings, many of whom are exceptional in ways that go unnoticed… rescuing motherless puppies; worrying about their wives coping with their deaths; sometimes dissenting but serving anyway.

San Francisco, CA — A lawsuit charging that the Veterans Administration has fallen down in providing mental health care to returning vets is about to go to trial in San Francisco, and two organizations are asking a federal judge for major oversight.
“The bottom line is that we’re not taking care of the veterans and we need to change that,” said Lead attorney Gordon Erspamer, who wants the court to appoint a third party overseer to improve mental health services for veterans of wars in Iraq, Afghanistan and Vietnam.

“There are massive delays in the system. It is unconscionable how long it takes for the VA to decide these claims,” said Erspamer.

Erspamer claims that as many as 125 veterans take their own lives each week, with a huge wave of vet’s expected to return from the middle east within the next year or so.

The VA, which was unavailable for comment this weekend, claims the court has no jurisdiction over its operations, which it says are improving.

Judge Samuel Conti will hear the case without a jury, the trial is expected to last about two weeks.

April 16, 2008 – A state Senate bill that provides additional protections for the re-employment of military veterans is headed to Gov. Jennifer M. Granholm for her signature.

Senate Bill 192, sponsored by Sen. Jim Barcia, D-Bay City, unanimously passed the House and the Senate, with the help of Rep. John Espinoza, D-Croswell, Barcia said.

“My colleagues and I care deeply about the welfare of our veterans and their families,” Barcia said in a news release. “These young men and women should be praised, not penalized, upon return from honorably serving their country.”

Michigan law currently considers violation of the re-employment statute as a misdemeanor and a victimized veteran has no compensatory recourse.

The Senate bill allows veterans to seek reinstatement and reasonable attorney fees through the courts.

The legislation also amends law to require an employer to re-employ an employee following service if provided written notice within 45 days of release, or within 90 days if the length of service was for more than 180 days.

Previously, notice was required within 15 days. It also requires re-employment be in a comparable position with comparable pay, Barcia said.

April 17, 2008 – As news broke of the rape of yet another US military contractor employee in Iraq [see “Another KBR Rape Case” at thenation.com], the Senate Foreign Relations Committee convened a hearing April 9 to demand that the Justice Department explain why it has failed to prosecute a single sexual assault case in the theater since the Iraq War began.

“American women working in Iraq and Afghanistan continue to be sexually assaulted while their assailants go free,” said Senator Bill Nelson, who called the hearing. Because squabbles about who has jurisdiction in these cases have proliferated, Nelson arranged to have representatives from the Defense, State and Justice departments sit down together in front of him. They were forced to listen while the latest victims testified.

Dawn Leamon, who worked for a subsidiary of KBR and had told her story to The Nation a week before, described–with her back to the packed room and her voice (mostly) steady–being sodomized and forced to have oral sex with a KBR colleague and a Special Forces soldier two months earlier. When she reported the incident to KBR supervisors, she met a series of obstacles, she said. “They would tell me to stay quiet about it or try to make it seem as if I brought it on myself or lied about it.”

Another woman, Mary Beth Kineston, who worked as a commercial trucker for KBR in Iraq, testified that she had been raped in the cab of her truck by a KBR subcontractor employee at night while waiting in line to fill her water tanker truck. She immediately reported the incident to her supervisors; no one did a rape kit test, referred her for medical treatment or even offered to escort her back through the dark to her quarters that night.

Also at the hearing was 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 government. Jones, who has formed a nonprofit to support the many other women with similar experiences, says forty employees of US contractors have contacted her with stories of sexual assault or sexual harassment–and accounts of how Halliburton, KBR and the Cayman Island-based Service Employees International Inc. (SEII), a KBR shell company, either failed to help them or outright obstructed them.

As the number of women coming forward rises, Congress has begun to question why these crimes are not being prosecuted. In fact, there are several laws on the books that would allow these cases to proceed: the problem is not a lack of legal tools but a lack of will. “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 rapes of Jones and Leamon 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.

Senator Nelson noted that the Defense Department, which has reported 742 sexual assaults against soldiers and civilians in Iraq and Afghanistan, has claimed that it was unable to prosecute cases involving civilians–like defense contractor employees–until recently. (Even among those cases where it clearly had jurisdiction, a close look at the DoD’s own stats reveals a far from stellar record: among the 684 sexual assault complaints lodged by US soldiers in the Middle East, only eighty-three cases have led to courts-martial. Meanwhile, last year alone, 2,688 sexual assaults were reported globally against women serving in the US Armed Forces; disposition of these cases is pending.)

Worse, those figures represent only the official count. Given that so many women are now coming forward complaining that they have been hushed by their private-military-contractor supervisors, it’s clear that the real tally is likely far higher. Even in cases where the victims do report the incidents, most complaints never see the light of day, thanks to the fine print in employee contracts, which compels employees into private arbitration instead of allowing their charges to be heard in a public courtroom. Todd Kelly, a lawyer in Houston who is trying to fight the legality of private arbitration, says his firm alone has fifteen clients with sexual assault, sexual harassment or retaliation complaints (for reporting assault and/or harassment) against Halliburton and its former subsidiary KBR, as well as SEII.

Obviously, US military contractors have an interest in avoiding the bad publicity that would follow if these complaints were not kept secret. With huge sums hanging in the balance–KBR has an estimated $16 billion in contracts–the stakes are high.

But such a financial incentive cannot explain why the Justice Department has failed to act. Although it has the authority to pursue criminal cases involving US military contractor employees, it has hemmed and hawed over even the tiny fraction of cases that have made their way through the maze of obstacles to land in the Justice Department’s offices. Grilling Justice about these twenty-four civilian sexual assault cases, Senator Nelson demanded to know exactly how many cases Justice was pursuing–and whether there had been a single conviction. “I don’t know of any convictions for sexual assault,” admitted Sigal Mandelker, deputy assistant attorney general for the Criminal Division. But, she stammered, “we do have active investigations…somewhere about…somewhere upwards of…somewhere between four and six, I believe is the number.” (Leamon’s attorney just learned that the department is initiating an investigation into her case.)

At the hearing, Nelson dryly observed that there was a very quick way to make sure US contractors did not force employees into private arbitration, and an easy way to force contractors to follow established protocols for sexual assault and harassment: “This might be something you want to require and include in your contracts–before you award them,” he said. To which, in quick succession, the Defense, State and Justice department representatives responded that, well, they couldn’t respond because this was, er, beyond their area of expertise.