Implications for Federal Contractors
ON SEPTEMBER 25, 2012, President Barack Obama signed an executive order designed to end human trafficking among government contractors overseas. This order, Strengthening Protections Against Trafficking in Persons in Federal Contracts, together with pending Congressional legislation, the End Trafficking in Government Contracting Act of 2012, changes the way U.S. contractors do business overseas.
Federal contractors will be required front-load human trafficking prevention programs into their proposals before a grant is awarded. The executive order ups the ante on monitoring and accountability while the legislation strengthens criminal sanctions against offenders. Now, prime contractors are liable for the actions of their subcontractors all the way down the supply chain. These initiatives are timely and necessary.
The Trafficking Victims Protection Act (TVPA) of 2000 marked the United States Government's official declaration of war against human trafficking. Originally intended to guide U.S. foreign policy in combating human trafficking internationally, and provide assistance to foreign victims inside the United States, the Act has been fine-tuned at each of its three subsequent reauthorizations to keep pace with increasingly complex human trafficking practices. Following the brutal killings of twelve Nepalese contract workers in Iraq and allegations of large-scale labor exploitation, the 2005 Trafficking Victims Protection Reauthorization Act (TVPRA) introduced provisions related to extraterritorial jurisdiction over federal contractors, making U.S. contractors working overseas liable for acte of sex and labor trafficking.
Unfortunately, little has changed. Reports from the Commission on Wartime Contracting and the inspectors general of the Defense and State Departments provided detailed accounts indicating that Third Country Nationals (TCNs) in the employ of U.S. contractors notably in Iraq and Afghanistan have been subject to exploitative treatment equating to debt bondage and human trafficking. The Commission delivered a resounding censure of antj-TIP measures currently on the books by declaring "Existing prohibitions on such trafficking have failed to stop it." In response to such criticism, the House Subcommittee on Technology, Information Policy, Intergovernmental Relations and Procurement Reform held ite first of two hearings on November 2, 201 1. In his introductory remarks, Rep. James Lankford stated that the goals of the hearing were to answer two questions: Whether or not the U.S. Government "has become an enabler of human trafficking, or if we have knowingly turned a blind eye to trafficking?" According to expert witnesses, the answer was a resounding "yes" to both.
Liana Wyler, Senior Analyst with the Congressional Research Service of the Library of Congress, outlined ten years of USG antitrafficking legislation including the Trafficking Victims Protection Act (TVPA), three reauthorizations, a Zero-Tolerance Policy, and a Presidential Directive, and concluded by saying that, "Despite ongoing efforts to combat human trafficking associated with government contractors, recent annual reports on trafficking in persons by the U.S. Department of State acknowledge that government contractors and subcontractors continue to be implicated in allegations of forced labor and sex trafficking."
The primary reason for ongoing instances of abuse is that contractors have not been directed or expected to abide by the standards of existing legislation. The numbers of contracts released without clear anti-trafficking clauses allows for endemic indifference to exploitative practices in the supply chain. Nick Schwellenbach, Director of Investigations, Project on Government Oversight (POGO) remarked that "The DoD IG has found that a substantial percentage of the contracts they have audited do not have a mandatory trafficking in persons clause. …