Thursday, November 5, 2009

Defending the Indefensible: When Partisan Politics Trumps Professed Principle

Approximately a week and half ago, I posted about an amendment in a defense appropriations bill. The amendment, offered by Senator Al Franken (D-MN), would bar defense contractors from using their employment agreements to shield themselves from liability in claims made against them by employees. The specific example that spurred the amendment was a case in which defense contractor KBR is claiming that its employment agreement (which requires all disputes between management and employees and liability by employees to be settled by an internal corporate arbitration process) protects it from any and all liability in a case where one employee was allegedly gang-raped by her fellow employees in Iraq.

I've written about the nature of agreements between employees and corporate employers before as well, particularly when attacking the conservative position (held by too many in both parties) of the sadly shelved Employee Fair Choice Act. I've also mentioned them in passing or in some detail in multiple other postings.

I'll recap here again: an agreement which grants a corporation ambiguously limited power over its employees while allowing the corporation to define the means by which its employees can negotiate on their own behalf is not an honest contract. It should not be a legal agreement at all, but that is another topic for another post.

I can understand some of economic arguments on the other side, though I tend to believe many of them are specious. That is not the point, however. A line needs to be drawn and we should all be able to agree that the alleged victim of a violent crime has a legitimate expectation to a certain degree of assistance from their employer (on whose watch the alleged crime occurred) in seeing justice done, specifically if the alleged incident involved fellow employees. When the employer fails to provide the proper assistance it should not then be able to use an employment agreement to shield it from its responsibilities.

30 Republican senators did not agree. I discusses this in the original posting on this topic.

Now, some are going even further: they are accusing those who would defend the notion that an employment agreement cannot shield a corporation from its share of culpability in an atrocity of politicizing rape.

Jenn Q Public writes:

This current smear campaign began when Sen. Al Franken (D-SNL) proposed S. Amdt. 2588, a measure ostensibly inspired by the horrific gang rape reported by Jamie Leigh Jones while she worked in Baghdad for defense contractor KBR, then a subsidiary of Halliburton. Franken contended that “her KBR contract banned her from taking her case to court, instead forcing her into an ‘arbitration’ process.”

It was a lie.

No employment contract can be used to force criminal complaints into arbitration. Not in America. But that didn’t stop the disingenuous left from immediately seizing upon the talking point that Republican opponents of the amendment want to deny rape survivors their day in court. Commentators pretended to be mystified as to how any rational human being could vote against rape victims.

Of course, it wasn't a lie and this kind of intellectual dishonesty attempts to ignore the actual issue of whether or not a corporation can shield itself from liability by forcing its employees to sign away their rights to sue it in return for their jobs. Franken did not ever claim the company somehow blocked criminal prosecution or that the agreement prevented the victim from filing charges. The alleged victim's lawsuit does accuse them of failing to properly and impartially investigate the incident. If this accusation is true then the corporation would be culpable if the case proved impossible to prosecute and might be guilty of obstruction of justice; but it's not the point of the amendment.

The point of the amendment is that corporations who believe their immunity from lawsuit trumps a thorough investigation into the truth of rape allegations should not be doing business with the US government. It's a damned good point. It's a damned good amendment. The 30 Republicans who opposed it were not only wrong, they were expressing implicit approval of such an attitude. Writing in their defense and attempting to spin the issue into a left-wing politicization of rape is also an implicit approval of such an attitude.

A principled government would not do business with such people. A principled political party would understand that. Principled activists and writers would call the party out when it made such a horribly wrong-headed decision en masse. Particularly those writers who accuse the opposition of being misogynists and claim to be champions of 'real' feminism.

Jenn Q Public continues:

It is the foot dragging of the United States Department of Justice that is keeping Jamie Leigh Jones from facing her attackers in court, not her KBR employment contract and not Republican legislators.

Well, this is not what the alleged victim claims in her lawsuit.

(As a note, the above link is the same link in the quoted text.)

KBR specifically contends that Jamie Leigh Jones was not raped:

KBR is disputing Jones' claims. They said she was a willing participant in the sex act, and they said the incident only involved only one man.

When the employer who ran the only investigation into the matter possible under the existing circumstances claims that no rape occurred, this could be seen as a barrier to effective prosecution. The facts of time and geography make an investigation difficult as well. KBR could cooperate to make such an investigation easier. Instead it is defending its procedures in order to protect itself from a lawsuit it claims is not valid anyway.

This may not be the 'KBR contract' to blame, but it certainly suggests the possibility that KBR could in fact be obstructing justice in this matter. KBR's 'investigation' essentially involved accepting the claims of the suspect as totally truthful and dismissing Jones' accusation. So it is not surprising that Jones would feel the need to sue, nor should anyone believe that KBR could possibly be trusted to properly adjudicate the internal abritration process the contract dictates.

Jones also claims in her lawsuit that KBR submitted a rape kit that may have been improperly handled during the testing process. KBR denies it. Once again, not something that they can be trusted to effectively adjudicate internally as their employment agreement dicates.

The idea that, under all these circumstances, KBR should be immune from actual civil liability in this matter is ridiculous. The argument that corporations should be able to maintain the kind of control over accusations made against their own conduct of such matters that Jenn Q Public defends is also ridiculous. The truth of these matters is best determined in actual court, not through corporate arbitration procedures.

A woman says she was raped and the corporation says she was not. They don't say they feel terrible but are not liable. They say she was not raped. They are saying her claims have no validity and should not be given credence.

Yes. They are clearly the innocent victims of persecution that the author seeks to portray them as being:

Franken’s primary objective was not to ensure justice for rape victims, but to strike a blow at the company that sits at the top of every rank and file liberal’s hit list: Halliburton. The legislation is an overly broad political sledgehammer designed to ban the disbursement of federal funds to Halliburton when narrow wording addressing arbitration in assault cases would have received bipartisan support.

Yes, Halliburton (along with KBR) is specifically mentioned in Senator Franken's amendment. This is because Halliburton owns KBR and KBR's activities in this matter can safely be said to reflect on its parent company in the absence of action by said parent to rectify the problem. It's certainly legitimate to name KBR in the amendment, as KBR is the company that has specifically behaved in the manner the amendment is supposed to address. Of course they would be mentioned in the memo.

Here we have it, the real reason Republicans voted against the amendment and the real reason that a conservative blogger is attacking Franken and the Democrats for 'politicizing rape.' They want to defend a company they have been deep in bed with for years, precisely because they have been so deep in bed with it. This kind of cynically partisan political response by Republicans is not, entirely, unexpected. A cynically partisan attack on those who criticize it, by a blogger who professes to be a 'real' feminist battling left-wing misogynists is more surprising.

It's also even less acceptable. If there is something worse than 'politicizing rape', it is cynically defending a corporate culture that brushes rape under the rug and then claims it can't be sued for doing so... because of one's politics.

There comes a point when one's personal positions on civil liberties mean nothing at all if one consistently cooperates with those who trample all over them.

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