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S. Hrg. 111–747 

ACCOUNTABILITY FOR FOREIGN CONTRACTORS: 

LIEUTENANT COLONEL DOMINIC ‘‘ROCKY’’ 

BARAGONA JUSTICE FOR AMERICAN HEROES 

HARMED BY CONTRACTORS ACT 

HEARING 

BEFORE THE

AD HOC SUBCOMMITTEE ON CONTRACTING 

OVERSIGHT 

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

NOVEMBER 18, 2009 

Available via http://www.gpoaccess.gov/congress/index.html 

Printed for the use of the Committee on Homeland Security 

and Governmental Affairs 

( 


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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

ROLAND W. BURRIS, Illinois 

PAUL G. KIRK, JR., Massachusetts 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

JOHN MCCAIN, Arizona 

GEORGE V. VOINOVICH, Ohio 

JOHN ENSIGN, Nevada 

LINDSEY GRAHAM, South Carolina 

ROBERT F. BENNETT, Utah 

MICHAEL L. ALEXANDER, Staff Director 

BRANDON L. MILHORN, Minority Staff Director and Chief Counsel 

TRINA DRIESSNACK TYRER, Chief Clerk 

AD HOC SUBCOMMITTEE ON CONTRACTING OVERSIGHT 

CLAIRE MCCASKILL, Chairman 

CARL LEVIN, Michigan 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

JON TESTER, Montana 

PAUL G. KIRK, JR., Massachusetts 

ROBERT F. BENNETT, Utah 

SUSAN M. COLLINS, Maine 

TOM COBURN, Oklahoma 

JOHN MCCAIN, Arizona 

LINDSEY GRAHAM, South Carolina 

MARGARET DAUM, Staff Director 

MOLLY WILKINSON, Minority Staff Director 

KELSEY STROUD, Chief Clerk 


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C O N T E N T S 

Opening statements: Page 

Senator McCaskill ............................................................................................ 1 

Senator Bennett ................................................................................................ 3 

Senator Tester .................................................................................................. 16 

Prepared statements: 

Senator McCaskill ............................................................................................ 33 

Senator Bennett ................................................................................................ 38 

WITNESSES 

WEDNESDAY, NOVEMBER 18, 2009 

Hon. Tim Ryan, a Representative in Congress from the State of Ohio .............. 6 

Dominic Baragona, Father of Lieutenant Colonel Dominic ‘‘Rocky’’ Baragona .. 8 

Scott Horton, Professor, Lecturer-in-Law, Columbia Law School ....................... 11 

Ralph G. Steinhardt, Professor of Law and International Affairs, The George 

Washington University Law School .................................................................... 12 

Tony West, Assistant Attorney General, Civil Division, U.S. Department of 

Justice ................................................................................................................... 19 

Richard T. Ginman, Deputy Director for Program Acquisition and Contingency Contracting, Defense Procurement and Acquisition Policy (DPAP), 

Office of the Under Secretary of Defense for Acquisition, Technology, and 

Logistics, U.S. Department of Defense ............................................................... 20 

Uldric I. Fiore, Jr., Suspension and Debarment Official, and Director, Soldier 

and Family Legal Services, Office of the Judge Advocate General, Department of the Army ................................................................................................. 22 

ALPHABETICAL LIST OF WITNESSES

Baragona, Dominic: 

Testimony .......................................................................................................... 8 

Prepared statement with attachments ........................................................... 40 

Fiore, Uldric I. Jr.: 

Testimony .......................................................................................................... 22 

Prepared statement .......................................................................................... 96 

Ginman, Richard T.: 

Testimony .......................................................................................................... 20 

Prepared statement .......................................................................................... 89 

Horton, Scott: 

Testimony .......................................................................................................... 11 

Prepared statement .......................................................................................... 60 

Ryan, Hon. Tim: 

Testimony .......................................................................................................... 6 

Steinhardt, Ralph G.: 

Testimony .......................................................................................................... 12 

Prepared statement .......................................................................................... 66 

West, Tony: 

Testimony .......................................................................................................... 19 

Prepared statement .......................................................................................... 81 

APPENDIX 

‘‘Agencies Fail to Suspend or Debar Companies,’’ Fact Sheet, submitted by 

Senator McCaskill ................................................................................................ 36 

Responses to questions for the Record from: 

Mr. Horton ........................................................................................................ 103 

Mr. Steinhardt .................................................................................................. 108 


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IV 

Responses to questions for the Record from—Continued 

Mr. West ............................................................................................................ 115 

Mr. Ginman ....................................................................................................... 121 

Mr. Fiore ........................................................................................................... 126 

Brian A. Persico, Attorney, Procurement Fraud Branch, Department of the 

Army, letter dated November 24, 2009 .............................................................. 128 


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ACCOUNTABILITY FOR FOREIGN 

CONTRACTORS: LIEUTENANT COLONEL 

DOMINIC ‘‘ROCKY’’ BARAGONA JUSTICE 

FOR AMERICAN HEROES HARMED BY 

CONTRACTORS ACT 

WEDNESDAY, NOVEMBER 18, 2009 

U.S. SENATE,

AD HOC SUBCOMMITTEE ON CONTRACTING OVERSIGHT,

OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:34 p.m., in room 

SD–342, Dirksen Senate Office Building, Hon. Claire McCaskill, 

Chairman of the Subcommittee, presiding. 

Present: Senators McCaskill, Tester, and Bennett. 

OPENING STATEMENT OF SENATOR MCCASKILL 

Senator MCCASKILL. Good afternoon. The Subcommittee on Contracting Oversight today is going to be looking at testimony and potential legislation surrounding accountability for foreign contractors. I want to thank everyone for being here today. Senator Bennett will be joining us. He is running a little late. I am going to 

go ahead and get started. With the permission of the witnesses, 

when he arrives I may interrupt you if you are in your testimony 

and give him an opportunity to make his opening statement on this 

important subject matter. 

Since the beginning of the wars in Iraq and Afghanistan, more 

than 5,000 American service members have been killed and more 

than 35,000 have been wounded. One of these brave Americans 

was Lieutenant Colonel Dominic ‘‘Rocky’’ Baragona. 

Lieutenant Colonel Baragona was killed in Iraq in 2003 when his 

vehicle was struck by a truck being driven by an employee of Kuwait and Gulf Link Transport Company (KGL). An Army investigation found the accident was caused by the KGL’s driver. 

For 2 years, the Baragona family went to the Army, the Defense 

Department, and the White House to obtain information about 

their son’s death and whether these officials intended to seek accountability. And for 2 years, the government did nothing. 

So in 2005, the Baragona family acted on its own and brought 

a lawsuit against KGL. The company refused to appear in the matter until after the court had entered a $4.9 million judgment 

against them. Only then did KGL enter the case, arguing that the 


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court had no jurisdiction over the Kuwaiti company and that the 

lawsuit must be dismissed. 

In September 2006, 17 months after the Baragona family’s suit 

began, and more than 3 years after the accident, the Army sent 

KGL the first of three letters asking for information about KGL’s 

tactics in the litigation and other concerns. Each time, the relevant 

information was supplied to the Army by the Baragona family or 

their lawyers. KGL responded to each letter, and the Army took 

KGL’s response at face value every time. 

This February, Uldric Fiore, the Army’s suspension and debarment official, decided based on a review of ‘‘the information available’’ that he would not initiate any suspension or debarment proceedings against KGL. This May, 4 years after the Baragona family 

brought their lawsuit, the court vacated its $4.9 million default 

judgment and dismissed the Baragona family’s case for lack of jurisdiction over KGL. 

Today, more than 6 years after Rocky’s death, the Baragona family is still waiting for justice. KGL has never admitted that their 

employee caused the accident. They have never paid a dime of compensation even though they were required as a contractor to the 

American Government to carry liability insurance. They have never 

even expressed condolences to the Baragona family for the loss of 

their son. 

Meanwhile, KGL has received millions of taxpayer dollars in subcontracts from major defense contractors like KBR, CSA, and IAP. 

According to information produced to the Subcommittee, KGL has 

received more than $200 million in new subcontracts since Lieutenant Colonel Baragona was killed. 

That is why I introduced the Lieutenant Colonel Dominic 

‘‘Rocky’’ Baragona Justice for American Heroes Harmed by Contractors Act in March of this year. Yesterday, the Ranking Member 

on the Subcommittee, Senator Bennett, the former acting Ranking 

Member, Senator Collins, and Senators Brown, Casey, LeMieux, 

Bill Nelson, and I reintroduced this legislation. This bill provides 

needed tools to ordinary Americans and the U.S. Government to 

hold foreign contractors accountable. 

First, the bill requires foreign entities who choose to enter—and 

I want to emphasize that—who ‘‘choose’’ to enter into contracts 

with the United States, it requires them to consent to personal jurisdiction in cases involving serious bodily injury, sexual assault, 

rape, and death. 

The bill also provides explicit authority under the Federal Acquisition Regulation for agencies to suspend or debar those companies 

who attempt to frustrate the legal process in these cases by failing 

to accept service or appear in court. 

The legislation that my fellow Senators and I reintroduced yesterday is a good first step, but the need for Congress to act with 

this legislation has raised serious questions for me about the systemic failures that have allowed companies like KGL to escape accountability for their actions. 

In April, the Subcommittee began an investigation of the suspension and debarment process. The Subcommittee’s findings are sumVerDate Nov 24 2008 10:22 Dec 07, 2010 Jkt 56144 PO 00000 Frm 000006 Fmt 06633 Sfmt 06633 P:\DOCS\56144.TXT SAFFAIRS PsN: PAT

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1The Fact Sheet submitted by Senator McCaskill appears in the Appendix on page 36. 

marized in a fact sheet that I am releasing today, and I ask unanimous consent that it be made part of the record.1

The Subcommittee has found that Federal agencies have only 

rarely used the suspension and debarment process to protect the 

government’s interests. In fact, agencies have consistently failed to 

suspend or debar even those companies who have been convicted 

through the work of their own Inspectors General. 

For example, from 2004 through March 2009, the Defense Department Office of Inspector General reported 2,768 convictions. 

The Defense Department suspended or debarred only 708 individuals and companies. 

The State Department is the second largest Department responsible for contracting in Iraq and Afghanistan behind the Department of Defense (DOD), and in 2008, the State Department did not 

suspend or debar a single company. 

From 2005 to 2008, the Department of Homeland Security (DHS) 

awarded 325,000 contracts to 67,696 different contractors and 

debarred just four companies. 

In 2006, amidst widespread reports of waste, fraud, and abuse 

following Hurricane Katrina, DHS did not suspend or debar a single company. 

At today’s hearing, we will hear from Lieutenant Colonel 

Baragona’s father, Dominic Baragona, about his family’s struggle 

to hold KGL accountable and how legislation like this could have 

helped him. 

We will also hear from two distinguished legal scholars about the 

gaps in the legal framework that this bill will help address. 

We will also hear from the Justice Department about its efforts 

to pursue accountability for foreign contractors and ask whether 

they have the tools they need to protect the U.S. Government and 

the men and women who bravely serve us in uniform. 

We will also ask our witnesses from the Defense Department and 

the Army tough questions about their suspension and debarment 

practices. And we will ask our witnesses what we need to ensure 

that Federal agencies aggressively protect the government and its 

citizens from irresponsible contractors. 

I thank our witnesses for being here today and look forward to 

their testimony, and I recognize the Ranking Member of this Subcommittee, Senator Bennett, for his statement. 

OPENING STATEMENT OF SENATOR BENNETT 

Senator BENNETT. Thank you very much, Madam Chairman. 

Thank you for calling this hearing. It is interesting, perhaps poignant, that we are doing this in the month of November. We are 

about to reflect on Veterans Day when we talk about our veterans 

and the sacrifice they make for our country, particularly this November with the tragedy at Fort Hood, where a single act of brutality against our troops demonstrates once again that merely 

wearing the uniform of the United States puts one at risk. 

The life and service of Lieutenant Colonel ‘‘Rocky’’ Baragona 

stands as an example of those who are willing to take this risk and 


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that the danger that comes from serving can come in places other 

than the battlefield itself. 

Now, following his commissioning at West Point, Colonel 

Baragona dedicated his life to being an officer in the U.S. Army. 

And in the early days of the war in Iraq, he commanded a maintenance battalion that ensured our soldiers had essential equipment 

and supplies necessary to fulfill their mission. And it was while he 

was fulfilling that duty, a very genuine duty even though it was 

not in combat, on a remote highway in Iraq that he was the victim 

of a negligent driver. 

Now, Colonel Baragona’s father, Dominic Baragona, is here today 

with us as a witness to testify. I want to take this opportunity to 

offer my condolences to you, sir, and to your family on the loss of 

your son. I apologize. 

We were able to meet the last time you were here in town and 

talk about him as a person. I wish I had had the opportunity to 

meet him, but I got to know a little bit about him through your 

stories and your description. Again, my deepest sympathies. 

When our troops make this ultimate sacrifice, we as a Nation inherit their legacy of selflessness and of service and, most of all, of 

freedom. And as their beneficiaries, we owe the fallen and their 

families our best efforts to ensure that their sacrifice was not in 

vain and that fairness in contracting must be applied in all instances. And in some particularly egregious instances, justice 

should be served. 

Justice is owed to the Baragona family. It has not been found because the company that is liable for Rocky’s death has refused to 

answer in any forum for the actions of its negligent driver. I do not 

hold them responsible for having a negligent driver because every 

organization runs that risk. But I do hold them responsible for not 

owning up to the consequences of what happened as a result of the 

actions of one of their employees. 

There are many facets to this case that go beyond just the 

Baragona experience, however, and, therefore, it justifies legislation of the kind that you have introduced. 

The company, Kuwait Gulf Link, has performed contracts for the 

Army and seeks to do it again. This is not a closed issue entirely 

in terms of the past. KGL, in avoiding answering for its negligence, 

has not only avoided the judgment of the Federal courts, but has 

managed to avoid the suspension and debarment process that 

would disqualify it from being a future contractor to the U.S. Government if the facts were fully aired, in my opinion. So to the outside observer, the outcome of the case and lack of consequences 

from the case are almost as abhorrent as the accident itself and 

demonstrate remedies that must be made to the system to see that 

it does not occur again. 

So this, which I cosponsor, is not in any sense anti-contractor. I 

have said here in this Subcommittee and will continue to say that 

I believe that the decision on the part of the Defense Department 

to move to contractors in those areas that do not require the skills 

of a warfighter is a wise decision. But contractors, U.S. owned and 

operated—as well as foreign owned and operated—regardless of 

their location or ownership, must be held accountable for their acVerDate Nov 24 2008 10:22 Dec 07, 2010 Jkt 56144 PO 00000 Frm 000008 Fmt 06633 Sfmt 06633 P:\DOCS\56144.TXT SAFFAIRS PsN: PAT

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tions and at the same standard. Foreign-owned contractors must be 

at the same standard as U.S.-owned contractors. 

This point is even more important in the hazardous areas because there the contractors are an extension of U.S. forces. And as 

such, the contractors in these cases must submit to the command, 

control, and communications of the U.S. military and, as they are 

working in concert with the U.S. military, they must be expected 

to answer for their actions to the United States, whether it be a 

military or civilian forum. They take on that obligation when they 

enter into an agreement with the U.S. Government. 

So, again, as a general principle, I am against any legislation or 

regulation that becomes a barrier for well-intended contractors. 

Many well-intended regulations actually do that, and they result in 

worse contracting behavior, as they keep some of the good ones out. 

But this bill, therefore, is not a barrier to entry; it addresses future contracting behavior for a variety of reasons. It is strictly voluntary and does not impose excessive cost on either party. It is just 

an agreement up front as to what the rules will be if something 

goes wrong. 

The central remedy of the bill will ensure a consistent forum for 

civil cases in the most dire of circumstances, and the act of contracting parties voluntarily submitting to a designated forum is one 

that is well established in common law. 

So today’s hearing, for which I thank you, Madam Chairman, 

convenes to examine some esoteric aspects of government contracting, civil law, and justice. And I am unburdened with a legal 

education, so I am here to be instructed by those who have that 

background. But we will examine legislation that seeks to remedy 

a gap that seems to exist in the command, control, and accountability of contractors that work for our military overseas. It is appropriate that the legislation bears the name of Lieutenant Colonel 

Rocky Baragona because of the sacrifice he made 6 years ago. And 

I hope that under the banner of his name we can move to see to 

it that justice will be available to any others who are unfortunate 

enough to have the same sort of circumstance occur to them. 

Thank you. 

Senator MCCASKILL. Thank you, Senator Bennett. 

I will introduce the witnesses now. I am going to skip Dominic, 

not because I do not want to tell about you and your wonderful 

family, but we are fortunate to have Representative Tim Ryan from 

Ohio, with us today, who has been by your family’s side from the 

beginning of this ordeal, trying to be of assistance. And so I am not 

going to tell about you, and when it is time for you to testify, we 

will defer to Representative Ryan to do your introduction. 

Ralph Steinhardt is the Arthur Selwyn Miller Research Professor 

of Law and International Relations at The George Washington University Law School here in Washington. He is co-founder and director of the program in international human rights law at New College, Oxford University. For 25 years, Professor Steinhardt has 

been active in the domestic litigation of international human rights 

norms, having represented pro bono various human rights organizations as well as individual human rights victims before all levels 

of the Federal judiciary, including the U.S. Supreme Court. He has 

also served as an expert witness in several cases testing the civil 


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liability of multinational corporations for their complicity in human 

rights violations. He currently serves on the International Commission of Jurists’ Expert Legal Panel on Corporate Complicity in 

International Crimes. He is also the founding Chairman of the 

Board of Directors of the Center for Justice and Accountability, an 

anti-impunity organization that specializes in litigation under the 

Alien Tort Statute. 

Scott Horton is an adjunct professor at Columbia Law School 

where he teaches law of armed conflict and international commercial law courses. He has served as chair of a number of committees 

at the Association of the Bar of the City of New York, including the 

Committee on International Law, and the Committee on International Human Rights. He currently serves on the association’s 

task force on national security law issues. In 2007 and 2008, he 

managed the Project on Accountability of Private Military Contractors, a Human Rights First Project, leading to the publication of 

‘‘Private Security Contractors at War,’’ a comprehensive study of 

legal accountability issues surrounding government contractors. He 

has also served as a legal affairs commentator for a number of network and cable news broadcasters and is a contributing editor covering legal and national security affairs for Harper’s Magazine. 

It is the custom of the Subcommittee that we swear in all witnesses that appear before us, so if you do not mind, I would like 

the three of you to stand, and raise your right hand. 

Do you swear that the testimony you will give before the Subcommittee will be the truth, the whole truth, and nothing but the 

truth, so help you, God? 

Mr. BARAGONA. I do. 

Mr. HORTON. I do. 

Mr. STEINHARDT. I do. 

Senator MCCASKILL. I want to thank all of the witnesses for 

being here today. We will use a timing system. We will ask you to 

try to hold your testimony to about 5 minutes, and your written 

testimony will be printed in the record in its entirety. And, with 

that, I will now turn to Representative Tim Ryan for the wonderful 

opportunity to represent and introduce Dominic Baragona and his 

family. 

TESTIMONY OF HON. TIM RYAN, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF OHIO 

Mr. RYAN. Thank you, Senator McCaskill and Senator Bennett, 

for the opportunity. On a personal note, I just want to thank you 

for how much it has meant to the Baragona family. This has really 

been an American story with a cause by the parents and the sister 

to come up here and literally work Capitol Hill until they get a 

hearing in the U.S. Senate and legislation introduced, and it is a 

real testament to them and the fact that our system does work. 

And I want to thank you for that. 

It is my distinct pleasure to introduce to you Dominic Baragona, 

who will deliver a personal story regarding his son, Lieutenant 

Colonel ‘‘Rocky’’ Baragona of the U.S. Army, and the injustice surrounding the negligence of a company that continues to avoid responsibility. 


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As you know, in 2003, Rocky Baragona was killed while serving 

our country in Iraq when his Humvee was struck by a supply truck 

driven by a Kuwaiti contractor. At the time, the company was 

under contract with the DOD to deliver supplies into Iraq. Near 

the end of his tour, as he was preparing to return home, Rocky was 

struck and killed. 

As the law now stands, U.S. citizens who have family members 

killed or harmed by foreign contractors working with the U.S. Government may not be able to bring those foreign contractors into a 

U.S. court to win justice for a wrongful death. This barrier to justice for American families is particularly worrisome for many reasons, among them the fact that these contractors are funded by us, 

the U.S. taxpayer. 

In light of this injustice and the perilous position in which it 

places the families of armed service members and other Americans 

pursuing our national interests, I draw to your attention Senator 

McCaskill’s bill as well as our bill that we have introduced, that 

I have introduced in the House, H.R. 2349, your bill’s companion 

in the House. 

This legislation requires that all foreign and domestic contractors 

operating pursuant to a Federal contract consent to U.S. Federal 

court jurisdiction over disputes arising out of such contracts, including suits involving injury to American armed service members, 

government employees, and American citizen contract employees. 

Under the bill, for existing cases brought on or after September 

11, 2001, contractors must consent to Federal jurisdiction as a condition of either entering into future contracts or receiving payments 

under current contracts. The legislation also provides for suspension and debarment of contractors for evading services of process 

and failure to answer for suits in U.S. Federal courts brought in 

relation to the performance of a Federal contract. 

Unfortunately, the Baragona case is by no means an isolated situation where a contractor headquartered abroad has acted in an 

egregious, fraudulent, or negligent manner. While few stories are 

as tragic as the Baragona case, there are many instances of impropriety. Such behavior is beyond egregious and must end. It is imperative that our legal system has unfettered reach in order to adjudicate such cases in our courts rather than allowing these companies to escape liability simply because they are headquartered 

abroad. 

My distinguished colleagues, this is about accountability. Foreign 

companies seeking American contracts paid by our tax dollars 

should be subject to the jurisdiction of our courts. If these companies seek our business, they can agree to appear in our courts, and 

it is that simple. 

Finally, the Baragona family will never completely recover from 

their tragic loss over 6 years ago. The family may, however, find 

solace in the knowledge that other families enduring similar circumstances will not face the particularly injustices they have been 

forced to endure since 2003. And, again, this family has taken the 

burdens of many other families here to Capitol Hill to have their 

voice heard, and it is just a wonderful, well-respected family back 

in Ohio, and Florida as well, and I want to thank you again and 

would like to introduce a hero in and of himself, along with his 


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1The prepared statement of Mr. Baragona with attachments appears in the Appendix on page 

40. 

wife, Vilma, and their daughter, Pam, speaking on behalf of their 

son, Rocky, as well, Dominic Baragona. 

Mr. BARAGONA. Thank you. 

Senator MCCASKILL. Go ahead. 

TESTIMONY OF DOMINIC BARAGONA,1 FATHER OF 

LIEUTENANT COLONEL DOMINIC ‘‘ROCKY’’ BARAGONA 

Mr. BARAGONA. Good afternoon, Senator McCaskill, Ranking Minority Member Senator Bennett, and Subcommittee Members. I 

ask that my full written statement be entered into the record. 

Behind me is my wife, Vilma, and our daughter, Pam. 

I want you to know I am scared to death. [Laughter.] 

Senator MCCASKILL. You have absolutely nothing to be worried 

about. You really don’t. [Laughter.] 

Mr. BARAGONA. I hear this. 

Senator McCaskill, you said it all in your statement. I could just 

turn this in and not even have to go any further. 

Senator MCCASKILL. No. We want to hear from you. 

Mr. BARAGONA. There you go. Our son, Lieutenant Colonel Rocky 

Baragona, battalion commander of the 19th Maintenance Battalion, 

was killed in Iraq on May 19, 2003, when a tractor-trailer truck 

owned and driven by Kuwait Gulf Link Transport careened across 

three lanes and crushed his Humvee. 

I am here to build a legacy in Rocky’s life through the passage 

of this bill. If it becomes law, foreign contractors who do harm to 

any of our soldiers will be held responsible in the U.S. courts. 

Second, I want a real criminal investigation into my son’s death, 

holding KGL responsible. 

I am kind of lucky, if you can say that. Just hours before Rocky 

got killed, I talked to him on a satellite phone. He said, ‘‘Dad, I am 

on my way home, and I will be in Kuwait in a couple of hours.’’ 

And I said to him, ‘‘Hey, Rock, is there anything I got to worry 

about?’’ He said, ‘‘Not unless something stupid happens, Dad.’’ 

Well, the next morning two soldiers are standing in my back 

yard. I realized something stupid had happened. We were shocked 

to learn that Rocky had been killed in a civilian accident. 

A civilian accident? It was just beyond us. We had a million 

questions, but the casualty officer told us, ‘‘Don’t worry, Dominic.’’ 

He said, ‘‘The Army will answer all your questions. In fact, they 

will answer questions you have not even heard of.’’ 

So the next few weeks are like a blur to us, between memorials 

in our home town, Fort Sill, and finally, Rocky’s burial at Arlington 

National Cemetery. 

By December, the report is delivered, 2 days before Christmas, 

what would be our first Christmas without the Rock. Our family 

felt the report, which had been approved by General Sanchez, was 

terrible. For one thing, it had no information about the driver or 

the name of the company. It gave a false impression of how Rock 

had died. The pictures they give us are just grainy xeroxed copies. 

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tion with a written statement of questions from my family to be answered. 

The colonel, Rocky’s commanding officer, gave us a little hint on 

who the company was by saying, ‘‘Dominic, I saw the original pictures, and they got ‘KGL’ written, and the color of the truck is orange.’’ Well, with the wonderful Internet we have today, we hold 

our own investigation and learned that the name of the company 

responsible for Rocky’s death was Kuwait Gulf Link Transport, a 

multi-million-dollar DOD contractor. 

We couldn’t get nothing done. We decided we needed to contact 

Ohio Senator DeWine to help us with the Army report and contacting KGL. 

Senator DeWine said, ‘‘Dominic, let me handle this.’’ He said, 

‘‘You know what? This company wouldn’t be in existence today if 

we had not gone to the Gulf War and saved that company. They 

will do the right thing. I am going to write a letter to the Kuwaiti 

Ambassador, and they will straighten this company right out.’’ 

Well, needless to say, he got rebuffed. 

He met with the Kuwaiti Prime Minister who tells him, ‘‘The 

Baragona family has to go to Iraq. That is where the accident happened, and they have got great courts there. They will solve the 

whole thing. Don’t worry about it.’’ 

I couldn’t help but think—but here we are, we liberated this 

country, and this company is going to get away with this? Anyhow, 

by the summer of 2004, Kuwait Gulf Link gained national attention by paying ransom money to terrorists for the release of their 

employees kidnapped in Iraq. CNN videos of the drivers—shows 

drivers complaining about KGL forcing them to work for U.S. 

forces by taking away their passports. 

We also learned that KGL was banned in India for the recruitment scams and forced labor—the point being they were known 

human traffickers with human rights violations. 

In January 2005, the second report was finally delivered to Senator DeWine’s office by Brigadier General Wright. The first thing 

the general says to us is, ‘‘This company has no contracts with the 

Army. Not only that,’’ he says, ‘‘they have immunity.’’ And I was 

trying to figure out whose side the general was on. I said we just 

could not fathom that. In fact, not to embarrass them, our lawyers 

whispered their name in their ear saying, ‘‘Hey, this company has 

got millions of dollars worth of contracts with DOD.’’ 

This report was also flawed, but the new pictures showed the 

truck has no license plates, and the driver’s passport with no commercial driver’s license. And yet we couldn’t figure out—the Army 

wouldn’t do no criminal investigation with just that evidence alone. 

And Rock was a battalion commander. 

Well, you won’t believe this next story. In February 2005, our 

daughter has a chance meeting with President Bush and asked 

him for his help. The first thing the President said is, ‘‘How are 

your parents doing?’’ President Bush literally initiates a debarment 

inquiry and the DOD issued a show cause letter to KGL citing bad 

behavior. KGL responded to the President’s request by hiring retired Brigadier General Richard Bednar, an ex-DOD debarment 

chief, who held off-the-record conversations with DOD officials, and 

the case come to a stop, the show cause letter. 


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I couldn’t believe this so I had Brian Persico, who was in charge 

of the Army’s suspension and debarment office. I had his number. 

I give him a call. I said, ‘‘I want to know how this show cause letter 

just came to an end like this. My God, we got the President behind 

us. How high do we have to go?’’ 

Let me tell you what he tells me. Well, I asked him about General Bednar and his conversation. He said, ‘‘If he moved the debarment forward, his career would come to an end.’’ I went, ‘‘Wow.’’ 

I said, ‘‘Is it possible that a KGL lawyer can trump the President 

and kill the debarment inquiry?’’ It was scary. 

So we pursued justice through the court since we had no admission by KGL and its negligence and no criminal investigation. KGL 

responds to the lawsuit by ignoring the court, not even bothering 

to show up. Well, it kind of made it a little bit easier for us to win 

if it was just one-sided. So the judge awards us $5 million. Well, 

30 seconds later, the KGL attorneys ask the court to vacate the 

judgment for lack of jurisdiction. 

Well, we always felt there was a weak case there. Judge Duffey 

ultimately rules in their favor, but he blasted KGL on their bad behavior. 

We spent the worst days since the funeral watching KGL executives and lawyers giving high-fives after the judge’s ruling. Since 

then, we have appealed the ruling. 

Our personal investigation found KGL continues forced labor 

practices and, in February 2008, was responsible for killing another 

soldier. This is a company that is supposed to have insurance with 

DOD for just such instances, but somehow manages never to pay 

when found guilty of negligence. 

It has really greatly disappointed our family that the Army did 

not take care of the Rock and investigate anything unless we 

pushed them to do it. You know what? We love the Army. We have 

two sons who graduated from West Point. We have a grandson 

nominated by Senator McCain to the Naval Academy. He goes to 

Iraq next month. I am a Korean War veteran. Our hearts bleed for 

the survivors of the Fort Hood families. We know how they felt 

during the final roll call. We were there. 

Today, we are grateful for Senator McCaskill’s bill, though it 

may not necessarily help our case. We just want to make sure that 

it does not happen again to other families. Just level the playing 

field between U.S. and foreign contractors. After this bill passes, 

the Wild West of contracting for foreigners will be over. 

Senator McCaskill and Senator Bennett sent a bipartisan letter 

to Secretary Robert Gates showing concerns that a company under 

investigation by the Senate Subcommittee could be awarded a 

multi-million-dollar food contract. And then we also appreciate letters from Representative Ryan and Representative Driehaus, who 

wrote a letter to the Department of Justice demanding a real investigation into KGL’s misconduct. 

Vilma, Pam, and I, we cannot thank everybody enough for trying 

to help us. For 6 years, we have walked these halls with our 

brownies and our hot peppers, and are exhausted. We have worked 

with three branches of the government for justice, and here we are 

today. Only in America. 

Thank you. 


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1The prepared statement of Mr. Horton appears in the Appendix on page 60. 

Senator MCCASKILL. Thank you so much, Mr. Baragona. And 

please convey to the rest of your children that we send our condolence for the loss of their brother because I know that you and your 

wife had seven children, including Rocky. So a big family, worked 

hard, the American dream, and I know that Senator Bennett and 

I are going to work as hard as we know how to get this law passed 

in your son’s name. 

Mr. BARAGONA. Thank you. 

Senator MCCASKILL. We will now turn to the testimony of Professor Scott Horton. 

TESTIMONY OF SCOTT HORTON,1 PROFESSOR, LECTURER-INLAW, COLUMBIA LAW SCHOOL 

Mr. HORTON. Chairman McCaskill and Ranking Minority Member Bennett, I am really moved by the testimony we have just 

heard from Mr. Baragona about this case. It is a clear miscarriage 

of justice, and I, therefore, feel honored to be able to offer some remarks in support of this legislation. 

I think it is a significant piece of legislation that will close an 

important jurisdictional gap that exists for Federal courts and 

allow them to adjudicate claims that arise from serious misconduct 

involving U.S. Government contractors, which now appears to be 

beyond their jurisdiction. 

I want to say at the outset that talking about accountability and 

accountability measures for contractors is not intended to be criticism or disparagement of contractors. In fact, it would be impossible for us to perform the contingency missions we have overseas 

without those contractors. They play key roles in protecting American soldiers overseas, and frequently they put their own lives at 

risk. But, nevertheless, it is inappropriate for them to operate without accountability. Accountability is necessary for safety, and it is 

essential to upholding basic norms of the rule of law. 

One of the questions that Congress has to look at is whether or 

not it has created the correct framework for this accountability to 

occur. Well, I want to suggest that there has been a change in the 

way the United States has approached this issue over the last couple of decades that justifies these changes. 

The United States has relied much more heavily on contractors 

in connection with these contingency operations, and taking this 

change into account, the United States has also adopted a much 

more aggressive posture on the negotiation of Status of Forces 

Agreements around the world, seeking higher levels of immunity 

from the law of host governments. 

Well, whenever it does so and it takes away the jurisdiction of 

the U.S. Government, which, in fact, is what happened in the case 

where you talked about the Kuwaiti Ambassador who told you, 

‘‘Bring it to the courts of Iraq.’’ Actually, you could not bring this 

matter in the courts of Iraq because of Order No. 17, which we had 

issued—it was issued by Paul Bremer in July 2004—that exempted 

exactly this sort of issue from the jurisdiction of Iraqi courts. 

Now, when that happens, it is very important that the United 

States step in and expand its own jurisdiction so that there is no 


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1The prepared statement of Mr. Steinhardt appears in the Appendix on page 66. 

vacuum. In fact, I think that is something axiomatic. If the United 

States says the host country does not have jurisdiction, the United 

States has to supply its own jurisdiction. And, moreover, this is an 

area where the United States clearly has both the right and the responsibility to do that. 

Well, one obvious question that arises from this litigation is 

whether or not it is constitutional to do so, because, of course, the 

district court judge here applying the International Shoe Doctrine 

concluded that there was a lack of sufficient minimum contacts 

with the jurisdiction to warrant that. And my answer to that question is clearly yes. The legislation approaches this on the basis of 

consent. Consent provides a completely adequate basis for the exercise of this jurisdiction, notwithstanding the Fourteenth Amendment’s limitations that apply minimum contacts. 

But even beyond that, there is an entirely separate area here 

which Senator Bennett alluded to in his remarks, and that is, the 

U.S. law of armed conflict jurisdiction. When contractors are 

brought in in connection with a contingency operation beyond the 

territory of the United States, the United States has the power to 

expand the jurisdiction of its courts to address those situations. 

That is something that has been recognized since the Constitution. 

It is implicit in the power that is given to Congress to define the 

law of nations. And, in fact, as that phrase was originally used at 

the time of the enactment of the Constitution, that comprehended 

little beyond this law of armed conflict norm. 

I would like to just note as well that the contracts, in order to 

implement this properly, probably need to address a couple of other 

things not dealt with in specificity in the legislation, but probably 

would be appropriate for the contracting officer to deal with. That 

is the venue of the court that would handle the case, and also a 

provision in the contract that would provide that third-party beneficiaries would be able to use it and, finally, more detailed notice 

provisions. Thank you. 

Senator MCCASKILL. Thank you, Professor Horton, for being 

here, and we will look forward to some questions. 

Professor Steinhardt. 

TESTIMONY OF RALPH G. STEINHARDT,1 PROFESSOR OF LAW 

AND INTERNATIONAL AFFAIRS, THE GEORGE WASHINGTON 

UNIVERSITY LAW SCHOOL 

Mr. STEINHARDT. Madam Chairman McCaskill, Ranking Minority 

Member Bennett, and Members of the Subcommittee, I am extremely grateful for the opportunity to testify today and to pay 

tribute to the Baragona family. I would like to emphasize just a 

few points from my written testimony and then respond to any 

questions. 

It is safe to say that this legislation is a welcome bipartisan response to an injustice. It is a response to a particular case, but as 

Senator Bennett suggested in his statement, the importance of this 

legislation goes well beyond that one lawsuit. 

The problem of government contractors’ accountability takes 

many forms, including not only the kinds of torts that are at the 


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heart of the Baragona case, but also in some rare but high-profile 

cases, human rights abuses that undermine the credibility of the 

United States, that contradict its values, and potentially empower 

our enemies. 

This proposed legislation, it seems to me, is one step towards assuring a measure of accountability whenever foreign businesses 

enter into contracts with the U.S. Government and, most importantly, levels the playing field between U.S. corporations and foreign corporations. 

In my written testimony, I describe the likely trajectory of lawsuits under this legislation with particular emphasis on the constitutional and international law issues that may arise and that 

supporters of the legislation need to anticipate. I also offer some 

modest suggestions for improving the reach and the reliability of 

the legislation. In the interest of making the legislation as strong 

as possible, let me just anticipate what some of those issues are 

likely to be. 

Specifically, and in a nutshell, the legislation offers a statutory 

solution to a constitutional problem, and it offers a domestic solution to an international problem. It also addresses issues that arise 

at the beginning of the litigation—notably, jurisdiction and service—but it does not address the range of obstacles that can derail 

transnational litigation at a later stage. 

One of the occupational hazards of being a law professor, other 

than faculty meetings and paper cuts, is that sometimes we get lost 

in the doctrine and the theory, so let me be plain. 

A constitutional concern. There is no question that Congress has 

constitutional authority over government contracts. That is easy. 

There is no question that you could require a bond of government 

contractors to assure that there is a compensation fund for future 

plaintiffs in Mr. Baragona’s circumstances. The harder case is that 

under the Supreme Court’s decision in International Shoe that Professor Horton mentioned, the courts will have to determine in every 

case, case by case, whether the particular defendant has certain 

minimum contacts with the forum or not. 

Congress cannot legislate a one-size-fits-all legislative answer to 

that constitutional question. Requiring a waiver of personal jurisdiction objections as a precondition for doing business with the government is an attractive approach, but it will be challenged as an 

unconstitutional condition. That is, there are many government 

privileges like contracting or driver’s licenses that cannot be subject to advance waivers of certain due process or fairness rights. I 

think that there are arguments that we should anticipate for getting around the unconstitutional conditions doctrine, but they have 

to be acknowledged and not ignored. The same is true with respect 

to service. 

Second, and turning briefly from the constitutional to the international issues, the proposed legislation addresses an international 

problem, and international law, including the treaties of the United 

States, will not be irrelevant. The most significant international 

issue arises under the Hague Service Convention, as the Baragonas 

discovered, to their dismay. I, too, have come up against the constraints of the treaty in practice. I have criticized the treaty in 

print and in testimony before the House of Representatives. I am 


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fully familiar with the logistical obstacles that the Hague Service 

Convention represents, but, again, this may not be an area in 

which we can simply legislate our way out of the box. Every one 

of this Nation’s major trading partners is a party to the Hague 

Service Convention, including Canada, China, Japan, Korea, Mexico, the United Kingdom, and almost every member of the European Union. They are unlikely to go away quietly if this legislation 

is construed as an effort to render that Hague Service Convention 

irrelevant. 

Let me just also briefly mention that there are certain practical 

considerations that have to be taken into account here. Defendants 

from countries that are parties to the Hague Service Convention 

will almost certainly insist on compliance with the treaty to the letter, and that is significant because when the judgments are taken 

from an American court to where the assets are likely to be—namely, one of the reasons that the courts in foreign countries resist 

U.S. judgments is that service has not been done in accordance 

with the treaty. 

There are other issues, of course: Choice of law, forum non 

conveniens, and enforcement of judgments. In my written testimony, I also describe the Alien Tort Statute. But, again, let me express my gratitude for the opportunity to testify today. 

Senator MCCASKILL. Thank you, and we welcome Senator Tester 

to the Subcommittee. 

I have to be honest with the professors on the panel. I am burdened with a legal education, and there for a minute I started 

thinking I should start taking notes—— [Laughter.] 

That I might have to write on this subject matter. And it is complicated, and we do want your help, and that is why we have asked 

you to come here today. 

Let me ask you, Professor Steinhardt, as it relates to the waiver 

of personal jurisdiction objections as a precondition of contracting 

with the Federal Government. Can you address the court’s decision 

in Insurance Corporation of Ireland v.—I think it is—I do not know 

how to say this in French. I am not French. I am going to say it 

like we would say it in the Midwest—Compagnie des Bauxites de 

Guinee, that personal jurisdiction is an individual constitutional 

right, like other rights, may be waived. 

Is there anything else we need to do in this legislation to assure 

that we could fall under the aegis of that Supreme Court decision, 

that is, a waiver in advance to submit to the jurisdiction of the 

court and, therefore, avoid the constitutional problems that you delineated? 

Mr. STEINHARDT. Absolutely right, Senator McCaskill. There is 

that dictum in the insurance company case. The difficulty is whether the waiver of due process rights is voluntary or statutorily directed, and that is what is going to trigger the unconstitutional 

conditions doctrine. 

I am not saying that those who challenge this legislation will 

necessarily win on the unconstitutional conditions doctrine, but if 

the government confers a benefit with conditions, and in particular 

the condition that parties relinquish a constitutional right, that 

triggers the unconstitutional conditions doctrine. The next step is 

to ask: Is there a substantial relationship, what the courts have 


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called an essential nexus, between the benefit conferred and the 

condition that is imposed? 

I think that if the Senate and the House of Representatives 

found as a matter of fact that there was a connection between the 

performance of the contract and the submission to liability litigation in the United States, then that is likely to satisfy this essential nexus test. But we should not oversimplify it or think that it 

is just going to go away. 

So the general principle that you can waive these rights is absolutely correct. But if you are forced to do so in a way that triggers 

the unconstitutional conditions doctrine, there will be difficulty. 

Senator MCCASKILL. Well, I certainly understand the point you 

are making. I just have to think that if we pass this law, the nexus 

of a company wanting to do business with our country, especially 

within the context of the military in a contingency operation, that 

level playing field that everyone referenced in their testimonies, I 

would think that there would be some compelling—as I think I remember from law school, the weighing tests. I think that on that 

weighing test you are going to get a thumb on the scale on the side 

of accountability as it relates to these foreign contractors. Am I off 

base on that? 

Mr. STEINHARDT. I do not think you are off base. I just do not 

think we can necessarily predict that the courts will automatically 

do the right thing in that regard, and that is why the sense of Congress, the finding by the Senate that liability is an essential part 

of the actual performance of the contract or the leveling of the playing field I think goes a long way towards assuring that the unconstitutional conditions doctrine will not be an obstacle. 

Senator MCCASKILL. Let us talk about the Hague Service Convention. What is your suggestion on service of process? The two of 

you with your knowledge of legal actions on an international platform, if you were writing this legislation, what suggestions would 

you give us to strengthen the process piece of this? I certainly get 

when it comes time, it does not—frankly, even if this company had 

not been such a coward and refused to ever step up and even speak 

to you about their negligence, Mr. Baragona, enforcing the judgment at a bank, as you referenced, could get really tricky if the 

lawyers start talking about the validity of process. 

What advice can you give us of any tweaking we can do to the 

language in this legislation that would strengthen the process part 

as it relates to the Hague Service Convention? Professor Horton. 

Mr. HORTON. Well, I know that the notice provisions are particularly important for this purpose, and in the sophisticated commercial contract that is an international contract, it is quite conventional not only to have specification of the law and the forum for 

the resolution of disputes, but also to have a designation of an 

agent for service of process. And if you want to anchor that to a 

jurisdiction in the United States, have an agent for the service of 

process designated at the jurisdiction that you have also specified 

for litigation, I think that really makes it much easier, and it 

shows within the four corners of the contract that this issue has 

been given thorough consideration and extraordinary steps have 

been taken by the contract counterparty to do this. 


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I agree with the general analysis that Professor Steinhardt has 

laid out. I think generally when we are talking about government 

procurement contracts, where it is a free and open process and a 

company participating has made the election to participate, to qualify, and bid, that these choices will be made in the context of the 

contractors, nothing coerced about it. That would be respected, I 

think, by a Federal court. 

There are other situations, particularly in wartime, certainly we 

saw circumstances in the 19th Century when military forces would 

commandeer—they would require or levy services from a local 

agent in terms of provisioning, yes, that would produce some problem in this regard. But not the sort of procurement that we are 

talking about here in connection with the war on terror. 

Senator MCCASKILL. Right. We are begging them—they are begging us to hire them. 

Mr. HORTON. Exactly right. 

Senator MCCASKILL. I do not know how in that context we are 

going to fall under a huge problem of coercion. Nobody is putting 

a gun to their head. They are working very hard to get our business, and I think as a piece of that, they should be responsible for 

their actions, and especially as it relates to our men and women 

in uniform. 

Senator Bennett. 

Senator BENNETT. I am sufficiently impressed with your legal 

background that I will pass. [Laughter.] 

Senator MCCASKILL. All right. Senator Tester. 

Senator TESTER. I can ask some questions, but it has no reflection on your legal background. [Laughter.] 

Senator MCCASKILL. That is a good thing. 

OPENING STATEMENT OF SENATOR TESTER 

Senator TESTER. Mr. Baragona, I want to thank you for testifying 

here today. I apologize for not getting here earlier for the entire 

panel, but I do understand that you did a fine job, and I certainly 

want to express my condolences to you and your family on your 

tragic loss. 

This is a question for any one of the three who can answer it. 

How pervasive is the problem of foreign contractors killing or injuring American service members or American civilians? Does anybody know the answer to that? 

It would be good to have the numbers on that. One is too many, 

but it would be good to have the numbers. 

A question for the legal team. Do the contractors in Afghanistan 

have the same kind of immunity that they did in Iraq? 

Mr. STEINHARDT. That is a completely opaque issue right now because the immunity was created—and there is a diplomatic note, 

which we have reproduced here, between the U.S. Embassy and the 

Afghan government that talks about levels of immunity that the 

United States is proposing. The United States also has proposed a 

Status of Forces Agreement which would give immunity to contractors. The Afghan government has essentially not agreed to this, so 

we are at something of a standoff on this immunity issue, and we 

do not have something like Order No. 17 which, clearly, effectively 

codifies the immunity. 


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Senator TESTER. So the question is what you just said, that there 

is immunity for contractors that injure or kill American servicemen 

or civilians? Is that what they are advocating for? 

Mr. STEINHARDT. Immunity. 

Mr. HORTON. I think it is a consequence of positions that the 

United States has taken, but let me go back and say Order No. 17 

said effectively they are immune from process under local law. 

That means that in Iraq no one can bring a contractor into a court 

other than Iraqi contractors—they were fair game—but not a Kuwaiti contractor, for instance, on account of wrongful death, rape, 

even murder, I mean, even an intentional crime they were immune. 

That is right. Of course, there was a major question as to how far 

the United States had gone in filling that void with assertion of 

U.S. jurisdiction. We have the Military Extraterritorial Jurisdiction 

Act and a couple of other pieces of legislation. The Uniform Code 

of Military Justice also was revised in December 2006 to create 

some basis of jurisdiction. We had no actual practice of enforcing 

that by the Department of Justice during that period. We had one 

single prosecution of a contractor coming out of Afghanistan up 

until the end of 2007. So it is only quite recently that our Justice 

Department has begun to step in and deal with these cases. 

Mr. STEINHARDT. Could I just add to that? Even if immunity 

were overcome by legislation or otherwise, there would still be a 

significant legal issue with the state secrets privilege. Many of 

these government contractors would be able successfully to invoke 

the state secrets privilege in circumstances that I suspect many 

Members of Congress would disapprove of. 

Senator TESTER. So let me get this straight, if I might, and 

please do correct me if I am wrong, because I hope I am. 

We have a situation in Afghanistan right now where, if a contractor is negligent, kills or injures somebody, there is no recourse. 

Mr. HORTON. Well, I was talking about immunity from the local 

courts. Then we have the question of whether there is immunity, 

whether there is a basis to go after that contractor in the United 

States, and on that we have a lot of very contentious litigation 

going on right now with contractors successfully asserting immunity under different doctrines in some cases, but also being held accountable in other cases. So it is a very complex picture. 

Generally they will attempt to argue that they are under the authority of the command there, and, therefore, they should have the 

same immunity that the military has, and they have gotten split 

verdicts on that question so far. 

Mr. STEINHARDT. Usually under the Alien Tort Statute. 

Senator TESTER. All right. And the contractors, of course, the 

ones we are talking about, are paid for by the American taxpayer. 

Mr. STEINHARDT. Correct. 

Senator TESTER. OK. Thank you very much. 

Senator MCCASKILL. Definitely we have work to do. 

I want to thank all three of you for your appearance today. Particularly I want to thank the Baragona family. 

The staff of this Subcommittee has done great work for this hearing, and when legislation gets passed, there is a moment on the 

floor where the sponsoring Senators thank the staffs of various 

committees. But many times the work that staff does day in and 


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day out is taking the time to sit, to listen, to understand, and I 

have a man on my staff, Stephen Hedger, who is a West Point 

graduate, who decided after he met the Baragona family that he 

was not going to let me rest until I did something about Rocky 

Baragona’s death. As a fellow West Point graduate—and he is now 

the Legislative Director in my office, so he has some elbows to 

throw around about what the priorities are. And I want to thank 

Mr. Hedger for his dedication to your family and to Rocky’s memory. Thank you all for being here today. 

[Applause.] 

Senator MCCASKILL. And he loves your brownies. [Laughter.] 

If the second panel of witnesses will come forward, please. Thank 

you for being here today. 

First, Tony West was nominated by President Barack Obama to 

be the Assistant Attorney General for the Justice Department’s 

Civil Division on January 22, 2009. He was confirmed by the Senate on April 20, 2009. From 1993 to 1994, he has served as a special assistant in the Justice Department. From 1994 to 1999, he 

served as Assistant U.S. Attorney for the Northern District of California. He later served as Special Assistant Attorney General, an 

appointee of California Attorney General Bill Lockyer. Prior to his 

return to the Justice Department, Mr. West was a litigation partner at Morrison and Foerster in San Francisco. 

Richard Ginman assumed the position of Deputy Director for 

Program Acquisition and Contingency Contracting, Defense Procurement and Acquisition Policy, in May 2007. In February 2008, 

he assumed the position of Principal Deputy to the Director of 

DPAP. In that capacity he is the principal adviser to the Director 

for all contracting and procurement policy areas. Mr. Ginman has 

more than 37 years of experience in government and commercial 

business in the fields of contracting, acquisition management, logistics, and financial management. Mr. Ginman was commissioned an 

ensign in the Supply Corps of the U.S. Navy in 1970 and retired 

as a rear admiral in 2000. 

Uldric Fiore was selected as the Army’s suspension and debarment official in October 2008. He has also served as the Director 

of Soldier and Family Legal Services for the Army Office of Judge 

Advocate General since July 2008. He formerly served as General 

Counsel for the Department of Defense Office of Inspector General 

from May 2005 until July 2008. He retired at the rank of colonel 

following 30 years of service, including 25 years in the Judge Advocate General Corps. 

It is the custom of this Subcommittee to swear all witnesses that 

appear before us, so if you do not mind, I would ask you to stand 

and raise your right hand. 

Do you swear that the testimony that you will give to the Subcommittee will be the truth, the whole truth, and nothing but the 

truth, so help you, God? 

Mr. WEST. I do. 

Mr. GINMAN. I do. 

Mr. FIORE. I do. 

Senator MCCASKILL. Thank you so much. We would ask you to 

try to keep your testimony to 5 minutes, and we will be happy to 

put your entire statements in the record as part of today’s hearing. 


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1The prepared statement of Mr. West appears in the Appendix on page 81. 

We will turn first to Tony West from the Department of Justice. 

TESTIMONY OF TONY WEST,1 ASSISTANT ATTORNEY GENERAL, 

CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE 

Mr. WEST. Thank you, Madam Chairman, Ranking Minority 

Member Bennett, and distinguished Members of the Committee. I 

appreciate the opportunity to appear before you today. 

Let me say at the outset that we, at the Department of Justice, 

greatly appreciate this Subcommittee’s attention to this issue, and 

we support your efforts to ensure that our servicemen and servicewomen and their families have recourse to our Federal courts. 

Let me also express the Department’s condolences to the Baragona family and express our gratitude to them both for the brave 

and honorable service of their son and for their perseverance to 

help turn the tragedy of his death into a legislative legacy that will 

ease the pain of other military families who may find themselves 

faced with the same road blocks. 

Now, as has been noted, S. 526, named for Lieutenant Colonel 

‘‘Rocky’’ Baragona, was introduced to address the challenges faced 

by them in trying to establish personal jurisdiction in a U.S. court 

for the wrongful death of their son. Lieutenant Colonel Baragona’s 

family pursued justice by suing the foreign contractor whose employee was involved in that accident, but that lawsuit was dismissed when the court held that it had no personal jurisdiction 

over the contractor. 

S. 526 would change that. For certain contracts, it would require 

contractors to consent to personal jurisdiction, thereby allowing 

U.S. courts to hear civil suits alleging rape, sexual assault, or serious bodily injury to members of the U.S. armed forces, U.S. civilian 

employees, or U.S. citizens employed by contractors working under 

government contracts performed abroad. And, importantly, S. 526 

would also require contractors to consent to personal jurisdiction in 

matters brought by the United States alleging wrongdoing in the 

performance of a government contract performed abroad. 

Madam Chairman, addressing procurement fraud is among our 

highest priorities at the Department of Justice. We have pursued 

and we will continue to aggressively pursue all contractors, foreign 

or domestic, who seek to defraud the government in the procurement process. Since 1986, we have recovered in excess of $4.4 billion in procurement fraud matters involving the Defense Department in cases that range from ensuring that the American taxpayer is not overcharged for vital services to our men and women 

in uniform, to enforcing the laws against bribery and other corruption. 

In fraud suits against foreign entities, we have been largely successful in asserting personal jurisdiction in U.S. courts. We have 

just announced the filing of two war-related cases against defendants that include foreign entities. 

The Department announced 2 days ago that it had intervened in 

a qui tam action against Public Warehousing Company (PWC) and 

others alleging that the defendants knowingly overcharged the 

United States for food supplies for our service members in Kuwait, 


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1The prepared statement of Mr. Ginsman appears in the Appendix on page 89. 

Iraq, and Jordan. A criminal indictment has also been filed against 

PWC in connection with that alleged fraud. 

Now, in these cases we anticipate that our authority under the 

False Claims Act will enable us to establish personal jurisdiction 

over the foreign entity defendants, just as we have had that success in the past. 

With respect to S. 526, we believe that the requirements it imposes should facilitate the establishment of personal jurisdiction 

over foreign contractors, particularly where it does not currently 

exist. We have a number of technical suggestions to the legislation 

that we have discussed with Subcommittee staff, and we are happy 

to further discuss with Subcommittee staff, and I discuss those in 

more detail in my written testimony. 

In conclusion, the Department of Justice supports protecting the 

rights of individuals and their families to recover appropriate damages for injuries caused by the negligent acts of foreign contractors. 

We are also dedicated to pursuing contractors that commit fraud 

against the government and drain the Treasury of funds so vital 

to our military and procurement systems. We appreciate the Subcommittee’s efforts to help us fulfill that important mission, and I 

am happy to answer any questions you have. 

Senator MCCASKILL. Thank you, Mr. West, for being here. Mr. 

Ginman. 

TESTIMONY OF RICHARD T. GINMAN,1 DEPUTY DIRECTOR FOR 

PROGRAM ACQUISITION AND CONTINGENCY CONTRACTING, 

DEFENSE PROCUREMENT AND ACQUISITION POLICY (DPAP), 

OFFICE OF THE UNDER SECRETARY OF DEFENSE FOR ACQUISITION, TECHNOLOGY, AND LOGISTICS, U.S. DEPARTMENT OF DEFENSE 

Mr. GINMAN. Madam Chairman, Senator Bennett, and distinguished Members of the Subcommittee, thank you for the opportunity to appear before you today on behalf of the Hon. Robert 

Gates, Secretary of Defense, to discuss the accountability of foreign 

contractors. 

Before I begin, I would like to convey my condolences to the 

Baragona family. You have my heartfelt sympathy for the loss of 

your son in service to his country. 

You asked me to address several aspects of S. 526 cited as the 

Lieutenant Colonel Dominic ‘‘Rocky’’ Baragona Justice for American Heroes Harmed by Contractors Act. 

The legislation is designed to ensure foreign contractors with 

U.S. contracts who perform contracts abroad are held accountable 

for their actions that result in serious bodily injuries of members 

of the armed forces, civilian employees of the U.S. Government, 

and the U.S. citizen employees of government contractor companies. While I support the overall substance of the legislation, I believe there are portions that could be improved. 

First, I believe liability should be limited to actions that are 

linked to the performance required under the government contract 

and not be broadly applied to any action by a government conVerDate Nov 24 2008 10:22 Dec 07, 2010 Jkt 56144 PO 00000 Frm 000024 Fmt 06633 Sfmt 06633 P:\DOCS\56144.TXT SAFFAIRS PsN: PAT

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tractor, subcontractor, independent contractor, or their respective 

employee. 

Second, applying this provision to contractors at all tiers is problematic. Changing the definition of ‘‘contractor’’ and limiting the 

applicability of this legislation to the prime contractor would allow 

us to more effectively implement and enforce it. It is likely, in 

order to protect themselves, that prime contractors would require 

all subcontractors, at all tiers, to certify compliance with this provision. This will undoubtedly impact the issuance of contracts in a 

combat environment and impact the ability to get our troops what 

they need in the required time that they need it. 

Third, the legislation could affect competition to some degree. Because the statute would apply to ‘‘any contract’’ regardless of dollar 

value, many smaller local vendors overseas would either refuse to 

do business with U.S. forces, or they would need to increase prices 

to cover the additional insurance for handling possible U.S. litigation, particularly for injuries unrelated to their business with the 

U.S. Government. 

Fourth, there should be a threshold used to apply the consent 

provision to contracts. 

Fifth, the prospective applicability under contracts and the retroactive application as a condition of receiving payments under current contracts would fall outside the changes clause and require bilateral modifications. It would eliminate the Department’s ability 

to unilaterally exercise valuable options and require bilateral modifications which allow the contractor to ask for consideration, or 

force termination of the contracts. 

We do not know for certain the extent that this new law will 

have on our ability to contract overseas and obtain mission-critical 

supplies and services. If foreign contractors opt not to bid on U.S. 

contracts as a result of the legislation, there would be negative impacts on the Department’s mission. In Iraq and Afghanistan, for 

example, our men and women rely on the delivery of food, fuel, and 

supplies from local and foreign contractors. If these contractors 

refuse to accept contracts from the U.S. Government to perform 

these services, a disruption of the logistical and supply system 

would impact operations while trying to find another contractor 

who will mobilize to perform these critical functions. 

And, finally, it would make sense to include a provision to allow 

the commander in the field to authorize an exception and that the 

contracting officer properly document that decision in the file. 

The Department agrees that we contract only entities that are 

responsible for fulfilling their contractual obligations. The Federal 

Acquisition Regulations (FAR) prescribes policies, standards, and 

procedures for determining whether prospective contractors are responsible. By statute, the U.S. Government may contract only with 

responsible contractors. 

To summarize, I believe the goals of the proposed legislation are 

sound. The U.S. Government should not do business with companies that are not accountable for their actions. However, as discussed, we believe we can achieve the intended end state and also 

limit any adverse impact or unintended consequences by addressing the concerns that I have shared with you. 


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1The prepared statement of Mr. Fiore appears in the Appendix on page 96. 

I ask that my full statement be entered into the record. I understand the latest draft of the bill has addressed several of my concerns, and, again, thank you for this opportunity to appear before 

you today, and I am ready to answer your questions. 

Senator MCCASKILL. Thank you, Mr. Ginman. Mr. Fiore. 

TESTIMONY OF ULDRIC I. FIORE, JR.,1 SUSPENSION AND DEBARMENT OFFICIAL, AND DIRECTOR, SOLDIER AND FAMILY 

LEGAL SERVICES, OFFICE OF THE JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE ARMY 

Mr. FIORE. Thank you, Chairman McCaskill, Ranking Minority 

Member Bennett, and distinguished Members of the Subcommittee. 

Thank you for the opportunity to appear before you today on the 

important issue of government contractor accountability. 

As Chairman McCaskill described, I serve in the dual capacity as 

Director of Soldier and Family Legal Services for the Army and 

also, since October 2008, as the Suspension and Debarment Official. I succeeded Robert Kittel who served as the Army Suspension 

and Debarment Official from September 2003 to September 2008. 

The Army follows the suspension and debarment regulatory process set forth in Subpart 9.4 of the Federal Acquisition Regulation. 

A government contractor can be debarred when there is a criminal 

conviction or civil judgment for fraud or a similar offense, or when 

there is a preponderance of the evidence that a contractor willfully 

failed to perform, has a history of unsatisfactory performance, or 

has engaged in conduct that affects the contractor’s present responsibility. 

Suspension and debarment are discretionary actions taken to ensure agencies contract only with responsible contractors, and the 

FAR specifies that these actions are ‘‘not for the purposes of punishment.’’ 

For several years, the Army has led DOD in the number of suspensions and debarments with over 300 actions annually, including 

390 actions during fiscal year 2009 and almost 300 actions since 

2005 against contractors and individuals in cases arising in Iraq 

and Afghanistan. I am not aware of any legal or regulatory barriers 

to the Army’s exercise of suspension and debarment authority. 

I understand that this Subcommittee is very concerned about the 

Army’s decisions not to debar the contractor involved in the accident that resulted in the tragic death of Lieutenant Colonel 

Dominic Baragona. I would like to express my condolences to the 

family of Lieutenant Colonel Baragona for their loss, and while I 

cannot comment on potential future proceedings, I can address the 

background and rationale for the Army decisions to date. 

In August 2006, the Army received information from Senator 

DeWine that in May 2003 a negligent driver for KGL had caused 

the death of Lieutenant Colonel Baragona in a collision between a 

commercial vehicle and his military vehicle in which he was a passenger, and that KGL had failed to appear in a related wrongful 

death civil lawsuit filed in Federal court in Georgia. The following 

month, the Army formally advised KGL that it was considering 

suspending or debarring it. 


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In October 2006, KGL replied that while it did not accept the initial service of process because it was served improperly, in July 

2006, it had accepted a properly served complaint. Based on this 

information, the Army suspension and debarment official decided 

against initiating a suspension or debarment action at that time. 

In November 2007, the Baragona family attorney notified the 

Army of the $5 million default judgment against KGL. Responding 

to the Army’s Request for Information, KGL advised PFB that in 

February 2008 it had sought to vacate that judgment. And, in fact, 

in May 2009, the Federal court did vacate that judgment and dismissed the lawsuit for lack of personal jurisdiction. 

In June 2008, Lieutenant Colonel Baragona’s father wrote to the 

Army seeking to have KGL debarred based on an Army accident 

investigation that concluded that the truck driver’s negligence was 

the cause of the accident. Mr. Baragona also alleged that KGL was 

involved in illegal ‘‘human trafficking.’’ Separately, the Baragona 

family attorney alleged that KGL lacked adequate automobile insurance at the time of the incident. 

In July 2009, KGL responded to a second Army Request for Information with proof of insurance, and further Army inquiry discovered insufficient evidence of human trafficking. After carefully 

reviewing that information, I determined that the allegations of 

human trafficking and lack of insurance were not substantiated 

and did not warrant a debarment proceeding. 

The Army’s decisions to date do not preclude future Army suspension or debarment action if it is determined that KGL has 

acted, or intends to act, in a manner demonstrating a lack of 

present responsibility. Under present authorities, contractors’ failures to respond to properly served process of a U.S. court or administrative tribunal would be an indication of a lack of present responsibility and could be the basis for a suspension and debarment 

proceeding. 

I have recently declined to lift a foreign contractor’s suspension 

in a case involving an indictment on just that specific basis. Although I certainly do not approve of the tactics employed by KGL 

in the lawsuit, KGL acted within its legal rights, and a suspension 

and debarment action was not warranted on that issue. 

Thank you again for this opportunity to appear before you today 

and for the support Congress and the Members of the Subcommittee have provided to our soldiers, sailors, airmen, and marines, and their families. 

I am happy to answer any questions you may have. 

Senator MCCASKILL. Thank you, Mr. Fiore. 

Let us start with a timeline here. I think you have just testified 

that the first involvement was in August 2006 of the suspension 

and debarment folks, and that was some 3 years after this accident 

occurred. Is that correct? 

Mr. FIORE. Based on the records available to me, that is correct. 

Senator MCCASKILL. And you have access to all the record, correct? 

Mr. FIORE. I have access to the records in the Procurement 

Fraud Branch, which is the branch that processes these cases, yes. 

Senator MCCASKILL. OK. And you have reviewed all those 

records? 


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Mr. FIORE. I have. 

Senator MCCASKILL. And so in August 2006, as a result of the 

Baragona family, not as a result of anybody else—I want to make 

sure the record is clear on that—that this initial inquiry of suspension and debarment looking at the actions of this company occurred 

as a result of the Baragona family contacting their Member of Congress, and that Member of Congress making an inquiry to the Suspension and Debarment Office. Is that correct? 

Mr. FIORE. That is my understanding. I was not in this capacity 

at the time. 

Senator MCCASKILL. I understand that. And it was, in fact, after 

that point in time that the Baragona family began to try to seek 

justice on their own because of their frustration that the military 

had not done anything, that General Bednar got involved. Is that 

correct? 

Mr. FIORE. I have not had any involvement with General Bednar. 

Senator MCCASKILL. And there is nothing in the records about 

General Bednar contacting the office? 

Mr. FIORE. I would have to go back and check that and respond 

to the Subcommittee on that, Senator. 

Senator MCCASKILL. I think that would be important. When you 

were reviewing the records, wouldn’t it jump out at you that a 

former general was representing the Kuwaiti company that killed 

a member of the military? Wouldn’t that be something that would 

stick in your mind? 

Mr. FIORE. General Bednar represents many contractors in his 

capacity as a private attorney. He has been retired for almost 30 

years at this point, but he has been very active in the private bar 

in Washington. 

Senator MCCASKILL. But when he worked in the military, he 

worked in the Suspension and Debarment Office. Is that correct? 

Mr. FIORE. For a brief period of time, he was a suspension and 

debarment official in his last position as the Assistant Judge Advocate General for Civil Law. 

Senator MCCASKILL. OK. I just would find it startling, if you 

have reviewed all the records, that you would not have noticed that 

General Bednar would have been involved. But you are saying you 

did not see his name when you were reviewing the records, or you 

are just not sure? 

Mr. FIORE. I am not sure because, as I said, he is involved in a 

number of different cases in this field, and seeing his name in a 

suspension and debarment file would not be unusual. 

Senator MCCASKILL. I do not know whether that is good news or 

bad news, but I would certainly appreciate you looking at the 

records and letting us know specifically where his name appears, 

if at all, in the records of this case and in what context, and we 

would like copies of any of those records. 

Mr. FIORE. We will do so. 

Senator MCCASKILL. OK. Now, in your testimony you correctly 

refer to the various ways that suspension and debarment can 

occur, and one of them that you quote in your testimony is that a 

company ‘‘has engaged in conduct of so serious and compelling a 

nature that it affects that contractor’s present responsibility as a 


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government contractor.’’ And I think we would call that in the legal 

business a catch-all. Would you characterize it that way? 

Mr. FIORE. Yes, Senator. 

Senator MCCASKILL. And it provides for discretion on the part of 

the Suspension and Debarment Office because clearly this is in 

many ways a subjective decision that the office would have to 

make. Is that correct? 

Mr. FIORE. It is a decision that is made based on the evidence 

of record. There are times when it has some subjectivity to it, but 

we try and use objective evidence. 

Senator MCCASKILL. Well, serious and compelling, I think that is 

one of those things that juries figure out, and it is one of those 

things that finders of fact figure out. It is not a matter of law. That 

is a factual determination, interpreting the facts to determine 

whether or not it is serious and compelling. 

Mr. FIORE. Yes, that is correct. 

Senator MCCASKILL. I am going to read you what the judge said 

at the point in time that the judge reluctantly had to let any hope 

of justice on the civil front in the courts of this great country go 

out the door for the Baragona family. 

‘‘KGL derived substantial revenue from its contracts with the 

United States Army. For KGL to then turn a blind eye to the death 

caused by a KGL employee of a United States service member, who 

was on duty protecting the region at the time of the incident, is an 

affront to the solemn sacrifices service members such as Lieutenant Colonel Baragona honorably provided. KGL took this callousness even further by causing plaintiffs to expend nearly 4 years 

and significant expense in merely getting the question of jurisdiction before the court. This court abides by its charge to seek just 

and constitutional results, in spite of KGL’s irresponsible participation in this process.’’ 

Those were the words of the judge. 

Now, what about that is not serious or compelling? 

Mr. FIORE. Senator, there is an argument that can be made that 

is serious and compelling. However, the judge also pointed out that 

KGL was within its legal rights to do so, however abhorrent. 

Therefore, it is hard for me to conclude that was misconduct, however serious and compelling or important it might have been. 

Senator MCCASKILL. Well, the phrase does not say ‘‘misconduct,’’ 

sir. It says ‘‘serious and compelling.’’ And I guess what I am trying 

to get at, if a contractor kills one of our soldiers through their negligence and then sits silently and plays a game of ‘‘You can’t touch 

me’’ and watches this family suffer the way they have for years on 

end and go to great expense trying to find justice, and if the court 

itself cries out at the time they must follow the law and turn this 

family away, what would be serious and compelling? Is it two people being killed? What if they killed three people? What if there 

were seven soldiers killed that day in the accident? At what point 

in time does their conduct become serious and compelling? 

Is it that your office takes the view that it must be a crime or 

that the courts must find something wrong first? 

Mr. FIORE. No, Senator, that is not the case. 

Senator MCCASKILL. Well, I am at a loss at what the Suspension 

and Debarment Office would consider serious and compelling if this 


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is not, and somebody in the military needs to explain that to me. 

I am, frankly, flabbergasted that most, if not all, of the effort in 

this case came from the Baragona family and not internally in our 

military after a member of our military is killed, that the only way 

that we are sitting here today is because of this brave and tenacious family doing this on behalf of their loved one. And I guess I 

am confused that there is not more remorse about the way this was 

handled. 

Do either of you have any testimony you would like to give about 

how you think this has been mishandled? None? 

Mr. GINMAN. I do not. 

Senator MCCASKILL. You do not. OK. 

In your testimony, Mr. Ginman, let me ask you about the exception that you testified about that you think that people should be 

able in the field, commanders in the field should be able to give an 

exception to personal jurisdiction to a contractor. Could you give 

me an example of when you think that exception would be appropriate? 

Mr. GINMAN. It is difficult to determine when that would be. If 

I am the battle group commander, I am on the scene, the only contractor that has the product that I need is, in fact, debarred or has 

been suspended, do I think I might need an exception to be able 

to get to that person? Yes. Do I think it would be an exception that 

I would expect to take? No. I think I should always expect to find 

contractors that are responsible to deliver. 

Senator MCCASKILL. Well, if there is a hypothetical that you 

could come up with that would be specific that a commander in the 

field would want to do an exception, I would be very interested in 

understanding what the parameters of that situation would be 

where an exception for a foreign contractor—by the way, if you hire 

an American company, they do not get to write an exception in the 

field for them. Why would we need to write an exception in the 

field for a foreign contractor? 

I am trying to understand why there is this distinct difference 

between the Army’s view or the military’s view of contractors from 

the United States of America and foreign contractors? And believe 

me, I understand the need for foreign contractors. I have spent a 

lot of time on military contracting in the time I have been here. I 

understand that. But I think I need a more specific example why 

we would want to write into the law the ability to ignore the law. 

If you could work on that and get back to us, I would really appreciate it. 

Why don’t I go ahead and let Senator Bennett ask questions, and 

I will do that on my second round. Thank you. Senator Bennett. 

Senator BENNETT. Thank you, Madam Chairman. I appreciate 

that, and I appreciate, again, your holding the hearing, and these 

witnesses. I apologize that I am going to have to leave after my 

round because I have another assignment, but this has been a very 

useful experience. 

Mr. Fiore, you made the point, which I think is an important 

point to make, that you do not use suspension and debarment as 

a punishment, and as I say, I think that is an appropriate point 

to make. 


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However, as the Chairman has pointed out, you do have discretion, and she has done her best to make a case that feels to me 

that says that in this circumstance the discretion can be appropriately used, not as punishment. 

Is KGL still a viable candidate for Army contracts? 

Mr. FIORE. At this point they are. They are not on the excluded 

parties list. And I would just point out that my discretion is not 

unfettered. The decisions I make are subject to review in Federal 

courts under the Administrative Procedures Act, and so that is the 

standard by which I have to make decisions on the records that I 

have before me. 

Senator BENNETT. So you feel that the record before you, if you 

were to say KGL should not be considered for future contracts, you 

feel if you made that decision it would be overturned? 

Mr. FIORE. Based on the record I had before me, I did not feel 

that it would be sustainable in Federal court. 

Senator BENNETT. All right. Let us talk about that record. As I 

understand it, as you went through it, the reactions—and when I 

say ‘‘you,’’ I understand that many of these decisions were not necessarily made by you personally, but by the office that you now 

hold. The decisions were made on the basis of the responses from 

KGL. Did you take their word for it on every point of fact or conduct any kind of independent investigation to see if they were leveling with you? 

Mr. FIORE. The record includes the submissions by the Baragona 

family and their attorney, the courts records that we obtained, the 

information that KGL provided, and other information that the 

people in the Procurement Fraud Office gathered on those issues. 

We did not take the information from either side at face value. 

Senator BENNETT. But you did not conduct any kind of investigation of your own? You just said, OK, here we are, and everybody 

who wants to comment, comment, and then you made the decision 

on the basis of—— 

Mr. FIORE. I did not personally conduct an investigation. The 

Procurement Fraud Branch attorney in charge of the case conducted an investigation, to the extent he had the ability to do so, 

of various sources that had relevant information. It is not done to 

the same level as you would conduct a criminal investigation. 

Senator BENNETT. OK. Let us talk about that level. I continue 

to be troubled here. How do you investigate evidence in these 

cases? Whether it is accusatory or exculpatory, you are getting information—one family is saying to you this is what happened, 

somebody else says, no, and we are within our rights to stonewall. 

What kind of follow-up do you do? 

Mr. FIORE. Those items that are in agreement, we do no followup on. Where there is a dispute, then additional information is 

gathered if it is available, and ultimately it is brought to me, and 

I have to make the determinations of fact based on what is in the 

record. I am not an investigator. I am an adjudicator at that point. 

Senator BENNETT. OK. Additional information is gathered and 

submitted to you. Gathered by whom? 

Mr. FIORE. It would be gathered by the attorneys in the Army’s 

Procurement Fraud Branch. 


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Senator BENNETT. Would it be useful, Madam Chairman, if we 

got a look at what that information was? 

Senator MCCASKILL. I think it would be great. 

Senator BENNETT. Could you supply that for us, Mr. Fiore? 

Mr. FIORE. We certainly can. I believe most of it has already 

been provided to staff in prior meetings, but we can certainly make 

sure that it has been made available. 

Senator BENNETT. I think that would be helpful because—well, 

all right. I will leave that. 

Now, you entered into a discussion with the Chairman about 

General Bednar. Do you know General Bednar? 

Mr. FIORE. I know him professionally. 

Senator BENNETT. For how long have you known him? 

Mr. FIORE. I first met him somewhere around 1980 briefly when 

he was still on active duty and I was a mere captain. 

Senator BENNETT. There is always a relationship between a general and a mere captain that is somewhat different than the normal—— 

Mr. FIORE. It is somewhat attenuated, Senator. 

Senator BENNETT. Yes, I understand that. 

Mr. FIORE. Until I assumed this position, I may have seen him 

three times in 30 years. Since I have assumed this position, I have 

probably seen him twice. Once was at a meeting of the ABA’s Committee on Suspension and Debarment, of which he is a member. 

Senator BENNETT. But you do not recall any conversations with 

him or any contact with him about this case? 

Mr. FIORE. No, I do not. Certainly since I have been the suspension and debarment official, I do not believe I have had any contact 

with him on this case. 

Senator BENNETT. And you are going to review the record for the 

Chairman about any contact he may have had with your predecessor? 

Mr. FIORE. Or with the Procurement Fraud Branch office, yes. 

Senator BENNETT. All right. Well, again, the fact that I am not 

a lawyer enters into this, but having been an executive who had 

hired lawyers, I have paid a lot of legal bills, although I am not 

a lawyer. I would like to know a little bit more about the whole 

process because it does strike an outsider that this particular case 

has been decided on very technical grounds all the way through 

without any exercise of judgment along the way. And maybe that 

is the way it should be done, but I think the Chairman is appropriate in calling this hearing to pursue that question because it is 

a question that a non-lawyer would ask looking at the facts that 

we have before us. 

Thank you, Madam Chairman. 

Senator MCCASKILL. Thank you very much, Senator Bennett. 

I certainly understand that you have to make a decision. As you 

indicated, you are an adjudicator in the position you hold. You are 

not an investigator. You are an adjudicator. I understand that you 

have to have a record in front of you that will justify your decision. 

But I am curious since debarment, relative to the number of contractors that are out there in our government, is a fairly rare occurrence. Suspension is a little less rare, but, nonetheless, there is 

a whole lot of bad activity going on in contracting where there is 


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never a suspension or a debarment. I mean, you can look at some 

of the things that happened with KBR, and you have to scratch 

your head as to why—maybe we are into the too big to fail category 

in defense contracting like we have been in other areas of government. 

But I am curious. Is there a large body of case law where suspensions and debarments have been overturned? 

Mr. FIORE. It is not a large body, Senator, but there was one 

within the past month. 

Senator MCCASKILL. Where one was overturned? 

Mr. FIORE. Yes, Senator. 

Senator MCCASKILL. Well, I think it is incumbent on our Subcommittee, if we want to be responsible, that we take a look at 

that, and we will, to look at the case law in the area of suspension 

and debarment—maybe it is the former prosecutor in me, but it 

feels like there are some laydowns here that are occurring that people are not erring on the side of being aggressive in terms of cleaning up contracting procedures and practices. And I do not think 

that characterization is unfair, but we will take a look at the cases 

and see on what basis—and, generally speaking, in the case law 

how many cases would you say are out there that are informative 

of the legal standards you face on suspension and debarment where 

you have been challenged and the military has been overturned on 

their suspension and debarment activities? 

Mr. FIORE. I have not personally been challenged. I know in the 

Army it happens once every few years. The other services occasionally get challenged as well. Non-DOD agencies are not as aggressive in suspension and debarment as DOD agencies are, so there 

will be fewer of them. 

Senator MCCASKILL. Yes. And, generally, the basis is insufficient 

record? 

Mr. FIORE. The standard for the Administrative Procedures Act 

is arbitrary, capricious, or contrary to law. So a reasonable basis 

was a preponderance of the evidence type—— 

Senator MCCASKILL. So it is preponderance standard and it is arbitrary and capricious? 

Mr. FIORE. Yes, Senator. 

Senator MCCASKILL. OK. Well, I will admit I did not practice extensively in administrative law, but this does not feel like it would 

have been arbitrary or capricious, and it certainly feels like there 

was a preponderance of the evidence that there was some compelling activity here. 

Let me ask you about liability insurance. It is my understanding 

these contractors have to have liability insurance, correct? 

Mr. GINMAN. Yes, ma’am. 

Senator MCCASKILL. What for? 

Mr. GINMAN. They have third-party workers’ compensation, particularly in the case of transportation, there is a responsibility to 

have—I will get it exactly. 

Senator MCCASKILL. Well, I think—it has been a long time since 

I have been to law school, but I think if transportation contractors, 

which KGL was, are required to have liability insurance, I think 

it is because they are supposed to use that insurance if they are 

negligent and kill someone. 


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Mr. GINMAN. Yes, ma’am. 

Senator MCCASKILL. Why are we requiring them to have liability 

insurance if we cannot ever sue them? That seems kind of dumb 

to me. 

Mr. GINMAN. They are required to have vehicular and general 

public liability insurance. 

Senator MCCASKILL. Yes. 

Mr. GINMAN. And at thresholds specified in the contract. 

Senator MCCASKILL. Yes, so that is what is really curious about 

this case, that we would require them to have insurance for just 

this occurrence, but yet the military would put no pressure on 

them to utilize the insurance that we require them to obtain for 

just this kind of occurrence. It is really curious to me. Frankly, I 

would think that they would not carry that insurance. That is an 

expense they do not need, because we cannot get them, we cannot 

reach them. And so it seems to me that we ought to take that out 

as a contract requirement and then maybe we can get the contracts 

for less money if we are not going to require them to make that 

insurance available to the victims of their negligence. 

Mr. West, let me talk about procurement litigation, and I did notice the cases that occurred a few days ago, and I think it is terrific. But it brings up the thorny subject of qui tam’s and why there 

are so many that are sitting at the Department of Justice. It seems 

these are money makers, right? 

Mr. WEST. Our record of intervention has been good, Madam 

Chairman. In terms of the cases that the government intervenes in, 

they tend to be successful, and they do tend to bring money back 

to the Federal Treasury. 

Senator MCCASKILL. So this is one of those things—this is the 

speech I always make about more auditors. Auditors save money. 

Mr. WEST. Right. 

Senator MCCASKILL. We need to hire more of them. This would 

be where I would want to make the speech: Why are we not putting more resources into these qui tam’s. Why are so many of them 

sitting—I mean, you seal them so we are not really sure how many 

there are. I do not suppose you would tell us today, would you? 

Mr. WEST. Well, actually, I will tell you, because this is something that has come up before, and when I began in this job in late 

April, it was something I was curious about, too. And what I have 

learned in my conversations with the attorneys who do these cases 

is that I would say there are roughly 1,000 cases which are currently under seal, qui tam’s. And at first glance, it might look like 

that is a backlog, that they are sitting there. But, in fact, what 

those 1,000 cases represent are active investigations which are 

going on, not only in Main Justice but in every one of the 94 U.S. 

Attorney’s Offices around the country. And so that 1,000 actually 

represents every single qui tam that the United States is currently 

actively investigating. 

There are two other dynamics which also affect that number. 

One is that if you were to take a snapshot of the 1,000 or so cases 

that were under seal a year ago and you were to take a snapshot 

of those same 1,000 cases today, you would notice that the pool is 

actually different. There are cases which are always moving in and 


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cases which are always being unsealed, moving out. And so they 

are actually not the same cases. 

And then the last thing I would note is that oftentimes what you 

will see is when a case is unsealed, it is not simply an announcement of the allegations. What you often see is an announcement 

not only of the allegations, but also a settlement agreement at the 

same time, because what is actually happening when these cases 

are under seal is we are working with defendants, we are working 

with relators, to actually resolve the case so that we can announce 

both an allegation, a complaint, as well as a resolution at the same 

time. We think that serves everyone’s interests best. 

Senator MCCASKILL. Well, I think it would behoove this Administration to make this a priority. It is of great frustration to many 

people who have brought I think meritorious action under this law 

that it appears to go into a big black hole, not to be heard from 

for a while. And I do not know what your resources are over there, 

but maybe this is a subject matter that we can take up outside the 

purview of this hearing. But the lack of transparency—I understand the public policy reason behind the sealing. It is abhorrent 

to me in government that we have to seal anything. But the lack 

of transparency provides a really fallow ground for cynicism about 

how aggressive the government is being in going after these actions, especially in the field of contracting right now and the whistleblowing that we have had as a result of contingency contracting 

in Iraq and now carrying forward into Afghanistan. I think it is 

really important that we continue to work those cases very hard. 

Let me finish up. I want to make sure I understand who everybody works for. I know you work for Attorney General Holder. 

Mr. WEST. That is correct. 

Senator MCCASKILL. Mr. Ginman, what is your line of command? 

Mr. GINMAN. My immediate supervisor is Shay Assad, who is Director of Defense Procurement. 

Senator MCCASKILL. OK. I know Mr. Assad well. 

Mr. GINMAN. Who works for Under Secretary Carter for Acquisition, Technology, and Logistics, who in turn works for Secretary 

Lynn and Secretary Gates. 

Senator MCCASKILL. OK. And, Mr. Fiore, what is your command? 

Mr. FIORE. My supervisor is the Judge Advocate General, Lieutenant General Dana Chipman, and I operate under a delegation 

from the Secretary through him to me. 

Senator MCCASKILL. And who is the person who is responsible 

for actually—who fills your position? The JAG? Is that who fills 

your position? 

Mr. FIORE. The Judge Advocate General appoints the suspension 

and debarment official under authority delegated by the Secretary. 

Senator MCCASKILL. OK. I wanted to make sure I was clear on 

that. 

I think requiring these contractors to get liability insurance is 

great, and I think that we do it for a reason. And I think the notion 

that the Baragona family had to sit in a courtroom and watch lawyers high-five because they never even had to contact their insurance coverage is a gut punch for justice in this country. And I think 

we need to remedy that gut punch, and we are going to work really 

hard on this legislation. And I ask for your help and support to 


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make this legislation. I know we have changed it already, Mr. 

Ginman, because of some of the concerns of your office. I would certainly ask for your guidance, Mr. Fiore, if there are more tools you 

need to use the discretion as a determinator of the facts, as you 

make a determination of the facts, I would certainly hope you 

would speak up now, because something is terribly wrong with this 

story, and I think it is incumbent on all of us to get it fixed before 

there is another Rocky Baragona laying on a highway somewhere 

in Afghanistan with a foreign contractor that has an insurance policy but 6 years later high-fives a lawyer in a courtroom somewhere 

in America and says, ‘‘Catch me if you can. You cannot touch me.’’ 

I think that is a very bad result for our American military. 

I want to thank all of you for being here today, and the record 

will stay open for a week for any additional information you want 

to add. Thank you. 

[Whereupon, at 4:18 p.m., the Subcommittee was adjourned.] 


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