09/18/2012 06:31 pm ET Updated Nov 18, 2012

Zero Tolerance Should Not Mean Zero Action

I ask for your indulgence as I return once again to the issue of human trafficking a topic which, unfortunately, seems to intersect with private military and security contracting more than now and then.

I know that when this topic comes up, both the U.S. government and most contractors will emphasize that they have a zero-tolerance policy for this. This is true. It is also insufficient.

For proof let's look at the searing article, "If You Have a Zero-Tolerance Policy, Why Aren't You Doing Anything?": Using the Uniform Code of Military Justice to Combat Human Trafficking Abroad" by U.S. Army Captain Brittany Warren that appeared this past June in the George Washington Law Review. Given the general eye-glazing impact of most law journal articles it is not too often I use the word searing to describe one but I think this merits it.

The article abstract succinctly states the problem:

Human trafficking is a long-recognized problem with global implications. Officially, the U.S. Government has a "zero-tolerance" policy for human trafficking. To that end, the United States has enacted a variety of legislation since 2000 to combat human trafficking both at home and abroad. The over 600,000 individuals who are trafficked each year, however, are evidence that these laws are insufficient. Specifically, the current legal framework leaves significant jurisdictional, evidentiary, and motivational hurdles when it comes to applying that framework to crimes committed by civilian contractors abroad.

Perhaps you thought that sex trafficking and contractors was a past problem; something you dimly remember happening in the Balkan wars in the mid-nineties. If only that were true. Consider this example from Warren's article:

Faye is from China. At the suggestion of a friend, she went to Afghanistan to find work. Because she did not have money for a passport or travel documents, her friend introduced her to a man who made all the necessary arrangements. She was told she would owe the man $1500 for his services when she arrived in Afghanistan. Upon her arrival, Faye soon started working as a waitress in a Chinese restaurant in Kabul. A few weeks later, the restaurant's owner told her that she owed an additional $800 for a visa extension and would have to start having sex with the customers to pay the debt. He would call the police and have her arrested if she refused. After Afghan police raided the restaurant, Faye was interviewed by the International Organization for Migration ("IOM") and admitted that the restaurant was a front for a brothel.

After the raid, Faye was voluntarily repatriated to China with IOM's help. A series of such raids freed ninety Chinese women from similar brothels. Most of their clients were western men working for the security firms, companies, and aid groups that poured into Afghanistan following the 2001 U.S.-led invasion. A whistleblower within one of these contracting companies alleged that one of his coworkers regularly bragged about owning women in Kabul brothels. Despite the U.S. Government's stated zero-tolerance policy on human trafficking, neither the State Department nor the Federal Bureau of Investigation ("FBI") took action. No one was ever prosecuted.

True, there are existing statutes on the books, notably the Trafficking Victims Protection Act (TVPA), passed in 2000, the Military Extraterritorial Jurisdiction Act MEJA), which provides a jurisdictional hook through which anti-trafficking laws can be applied against civilian contractors, and trial in the military system through the grant of jurisdiction found in Uniform Code of Military Justice (UCMJ) article 2(a)(10).

But this framework leaves gaps that hinder the effective prosecution of human trafficking offenses.

According to Warren, the TVPA's weakness lies in its statutory definitions of trafficking offenses. It only reaches "severe" forms of trafficking, defined as either sex trafficking where the person involved was under eighteen, or sex and labor trafficking by means of force, fraud, or coercion. Moreover, the TVPA's findings section explains that "force" includes "rape and other forms of sexual abuse, torture, starvation, imprisonment, threats, psychological abuse, and coercion." According to the Code of Federal Regulations, "coercion," in turn, is defined as threats of serious harm or physical restraint, "any scheme, plan, or pattern" intended to cause a person to believe that failure to cooperate would result in serious harm or physical restraint, or threatened abuse of the legal process.

Commentators have criticized this definition of coercion as unduly narrow. For example, debt bondage -- when a person's labor is demanded in repayment for a loan -- only rises to the level of coercion when the value of the services provided by the laborer "is not applied toward the liquidation of the debt or the length and nature of those services are not... limited and defined." Thus, as commentators have pointed out, under its own statutory definitions, the TVPA would not reach a contractor who procures adult women for prostitution in Turkey and brings them into Iraq where they are required to work off the cost of the journey and living expenses before being allowed to return home. Because the trafficker did not use force, fraud, or coercion as defined under the Act, he did not engage in a severe form of trafficking in persons and therefore cannot be prosecuted under the TVPA.

Additionally, absent physical restraint, coercion requires "serious harm," defined as any harm that is "sufficiently serious ... to compel a reasonable person of the same background and in the same circumstances" to continue to perform the required labor or sexual activity. There are two problems with this requirement. First, as commentators have noted, the TVPA's formulation equates to a belief that, up to the point when "severe force" is exerted on the victim, he or she is able to consent. By comparison, the much broader United Nations Palermo Protocol, enacted in 2000, defines coercion as including "the abuse of power or of a position of vulnerability," a definition that would easily encompass the actions by the trafficker in the Turkey-Iraq hypothetical above. The Palermo Protocol thus covers more types of pressure than physical coercion, including psychological pressure, and submission to psychological pressure is not equivalent to consent under this definition. The second problem with the TVPA's definition of coercion is that it is often difficult to prove. By contrast, the Palermo Protocol's definition, with its focus on exploitation, greatly reduces the prosecutorial burden of proving coercion, which is often considered an insurmountable obstacle in the context of trafficking cases. In short, although the TVPA represents significant strides forward in combating human trafficking, its legal force against civilian contractors is diluted due to its narrow statutory definitions.

As others have noted, MEJA's applicability, which is limited to persons "supporting the mission of the DOD," insulates contractors working in support of other federal agency missions, citizens of host nations, and U.S. citizens working for the United States but paid by other countries. But beyond that, individual offices of the U.S. Attorney handle MEJA prosecutions.

Because these offices are generally separated by vast geographical distances from the nations where civilian contractors function (and where their alleged victims are located), there are often enormous obstacles that hinder successful prosecutions, including the difficulty in gathering evidence from distant locations days, or even weeks, after an alleged crime and the daunting task of securing witnesses to testify in the United States. As Peter Singer, a senior fellow in Foreign Policy at the Brookings Institution, pointed out when discussing these hurdles, "No U.S. Attorney likes to waste limited budgets on such messy, complex cases 9,000 miles outside their district, even if they were fortunate enough to have the evidence on hand." Human trafficking -- a messy, complicated offense made even more complex when it occurs in areas of contingency operations--provides ample opportunities for these obstacles to arise.

These problems are reflected in the low number of successful MEJA prosecutions: "In the ten years since its passage, MEJA has been used to prosecute only twenty-seven former military members, civilian dependents, and civilian contractors."

Only fifteen of these prosecutions or attempted prosecutions were against civilian contractors in Iraq and Afghanistan. Moreover, the majority of the charged offenses concerned sexual assault or possession of child pornography rather than human trafficking. Given the sheer number of contractors who have been in Iraq and Afghanistan over the last eight years, twenty-seven is an absurdly low number of prosecutions. To date, only one contractor has been referred to DOJ for trafficking under MEJA, but no prosecution ever resulted.

This leaves the UCMJ as a way to deal with human trafficking.

Until recently, the UCMJ could only be applied against civilians accompanying the armed forces "in time of declared war." But in 2006, Congress undertook a "clarification" of article 2(a)(10) by amending its language to include contingency operations. Subsequently the Army Court of Criminal Appeals ("ACCA) held that civilian contractors accompanying military forces in the field during contingency operations are constitutionally subject to the UCMJ under the expanded article.

It is true that despite the ACCA's holding, the constitutionality of this clarification has been debated extensively and will likely someday have to be settled by the Supreme Court. But for now the change was duly enacted by Congress and allows the UCMJ to be applied against any civilian contractors accompanying the Armed Forces in either declared wars or contingency operations like those in Iraq and Afghanistan.

This is not to say that the UCMJ, at present, is optimal for prosecuting human trafficking crimes. Captain Warren notes:

On October 14, 2005, President Bush, by executive order, added "patronizing a prostitute" to the prohibitions against prostitution and pandering that are currently contained in article 134 of the UCMJ. This section punishes those who "compel[], induce[], entice[], or procure" a prostitute to engage in a sex act for money or other The maximum punishment for either prostitution or patronizing a prostitute is, inter alia, confinement for one year. Pandering, or recruiting another for prostitution, carries a maximum punishment of five years' confinement.

Although these punitive articles were intended to aid DOD in enforcing its zero-tolerance policy for human trafficking, they do not go far enough. The primary deficiency is that these articles define trafficking in terms of sex and prostitution rather than in terms of forced labor. Human trafficking is a much broader problem that involves the exploitation of men, women, and children in both sex and nonsex sectors. As noted by Professor Janie Chuang, a former trafficking advisor to the U.N. Office of the High Commissioner for Human Rights, antitrafficking laws and policies have remained focused on sex trafficking and prostitution despite the recognition that human trafficking involves a much wider range of activities than just sexual slavery. Defining trafficking in terms of prostitution and sexual slavery conflates the two and narrows the focus of antitrafficking efforts, rendering them significantly less effective. The deficiencies in the UCMJ antiprostitution article have thus rendered the article ineffective as a tool in efforts to uphold DOD's antitrafficking policies.

To strengthen the UCMJ Captain Warren proposes that the UCMJ should be amended to explicitly make human trafficking a crime under military law. "Such an amendment, along with its proposed implementing executive order, would resolve two issues. First, it would provide military criminal jurisdiction over all personnel supporting the U.S. Government in a declared war or contingency operation who commit trafficking offenses abroad. Second, it would supplement the current prostitution and pandering article by redefining the issue in terms of trafficking as opposed to prostitution, thus encompassing forced labor and bringing the scope of potential punishments in line with federal domestic antitrafficking statutes."

The proposed amendment, the Military Human Trafficking Act of 2012, would amend chapter 47 of title 10 of the U.S. Code (UCMJ) to create two new offenses under military law: human trafficking and aggravated human trafficking. Each would prohibit substantially similar conduct--the trafficking or benefit obtained from trafficking of persons for purposes of exploitation. The elements that would differentiate between the two offenses would be the means used by the accused in engaging in the trafficking, the age of the victim, and any serious bodily injury or death of the victim that occurs as a result of the trafficking.

If Captain Warren's proposal was reality this is how the plight of Faye, mentioned above, would have played out:

When a whistleblower in an American contracting company brought allegations of human trafficking to U.S. commanders in Kabul, the commanders would have initiated an investigation into several named employees. Because the contracting company was accompanying the force in an area of contingency operations, the commander of the U.S. base in Kabul would have initiated the court-martial process. CID agents in Kabul would have been on the scene within seventy-two hours to investigate the crime, collect evidence, and interview witnesses. After an article 32 hearing, the investigating officer would have determined that there were sufficient grounds for the case to be referred to court-martial. Several employees would have been charged with aggravated human trafficking for purposes of sexual exploitation for subjecting women in the brothel to exploitation by means of fraud and psychological coercion. Before Faye was repatriated back to China, she would have testified at the court-martial of her American "owner." He would have received a sentence of twelve years' imprisonment.