Prayer For Justice

God damn it.

This is the result of the so called ownership society, more like the privatized society–Friedmanism gone wild where government regulation is demonized and the principles of the free market are allowed to regulate everything.  This is what you get.  A society wherein justice is privatized and then removed for the sake of business and privelege.

It wasn’t even two months ago when the terrible story of Jamie Leigh Jones broke nation wide.  The young woman had taken up a job at KBR and went to Iraq and it didn’t take long for the sexual harassment to begin.  Ms. Jones’ nightmare in Iraq when the State department rescued her from a container after she was allegedly drugged and gang raped.  Unfortunately, that nightmare which actually occurred a couple of years ago still exists today because even the possibility of justice has been stripped from Ms. Jones’ hands.

This is a result of KBR removing the right of an employee to sue their employer and instead forcing them to settle in arbitration, a mediated event to which no transcripts are taken, no witnesses are allowed, no jury, and no judge.

And here we are, two months later, and ABC news is reporting that mother of five, Tracy Barker, is also alleging that she was sexually assaulted, and again, the only place that even offers her a prayer for justice is on the tilted field of KBR’s arbitration.

At this point, guilt is not even relevent.  That isn’t what is at stake here.  It is that Tracy, like Jamie before her, does not even have the ability to take her grievances to court.  To face her attackers under the eyes of the law.

KBR has privatized justice to its own benefit and it seems to be working.

And yes, you’re damn right I’m laying some of the blame on privatization, on Friedmanism, on Bush’s precious ownership society.  These folks try to sell you this idea that if you privatize everything, the market sorts everything out, but here we have a prime example of a private corporation taking over a governmental function and failing miserably.

Can either Barker or Jones ever be guaranteed a fair trial under the rules of KBR’s arbitration?  No, not without impartial witness, or an objective judge.  KBR doesn’t hold the right to imprison someone, and while yes, they may be able to dole out a little change, can this monetary recompense ever truly heal the wounds inflicted?  And would this money lost come even close to admonishing those members of upper management who are ultimately responsible for the safety and wellbeing of its employees?

I doubt it.

And this is part of the reason why the unregulated capitalist society doesn’t work; because if given enough power, corporations don’t have a big enough incentive to police themselves.  Further, when you get corporations that are too big, or too spread out, or have a niche market like, say, the federal government, there is little to no avenue for the individual consumers, whom I assume are supposed to police the corporations, to actually impress any kind of influence.

Look at this situation again.  Two months and there are two horrid tales of sexual assault against KBR, do you think KBR is hurt one little bit?  Do you think they care about a little bad press?  No!  People have hated both Halliburton and KBR for years and as long as they have high powered ties to the government nothing happens.

There is no accountability here, and this is made even more frightening when you think that right now, during our occupation of Iraq, we are looking at the most privatized our military has been during a military conflict ever.

And who suffers?  A young woman trying to support the troops in Iraq.  A mother of five.  As long as we allow this rape and pillage of our justice system, these women don’t even have a prayer of ever getting justice.

This is not how America is supposed to work.

(h/t memeorandum where I hope more bloggers will weigh in soon)

8 Responses to “Prayer For Justice”

  1. we can thank al the start to deregulatio t Regan lazy ass, and aint it some shit, today his day of birty in 1911

  2. I think it goes further back than Reagan, though he gets a lot of credit for putting movement conservatism on the mainstream map. But you know, Milton Friedman and those like him have been trying to spread their gospel for ages. Problem for them was, there was no army for the movement, no troops willing to march. This is the kind of stuff that happened in South America, South Africa, the former Soviet, this drastic mass capitalism push and you got these guys who will say if the economy isn’t doing well, it’s because the government’s too involved.

    Still not doing well? Still too much government.

    But then, you get crap like this where you have the ideal scenario for the unfettered capitalist types. Iraq, where American corporations and multinationals get to operate free from any semblence of accountability either among the Iraqi (puppet) government or our own government. You get Halliburton, KBR, Blackwater, Custer Battles, all of whom are pretty much getting away with grand theft on a massive scale, and apparently free sexual assault and rape, and there’s not a damn thing we citizens can do about it because the legal ninjas made it impossible for these people to be called to answer when they do wrong.

    And yeah, that’s where Reagan comes in, that’s where we got the guy who put a popular face on movement conservatism. There were two things that allowed this kind of sanctioned lawlessness to happen. There was Reagan who one-lined his way to power, and then you had the alliance of the socially conservative religious right to the rest of the conservative base.

    It was that demographic that gave the conservative movement “legions”.

    Don’t get me wrong, though. I’m a capitalist too. I like money, I like making money, and I like the potentiality for mobility. But what must be understood is that capitalism is doomed to fail without government intervention and oversight.

    Without regulation to keep it in check, capitalism fails for the same reason communism fails. Communism is, in theory, perfect government, perfect democracy, but it fails because when you have a model big enough, power cannot help but centralize in specific epicenters, and that power corrupts, and you now have a corrupt system.

    Same goes with capitalism. You still have power centers, but instead of those power centers existing in government officials, those centers are CEOs, and they eventually get to operate above the law because in pure capitalism, the market is the law. Unfortunately, too big of a market prevents the market to actually mobilize and keep corporations in check.

    Both fail because we’re people, we’re fallible, greedy, and without a little outside help, we can’t be trusted.

    God…

    If it wasn’t so sick it would be funny. A damn economic philosophy resulting in women getting raped and not even being able to face their attackers in a court of law.

  3. Mark says:

    I’m going to repeat myself – this isn’t capitalism or the free market. Government contracting is quite the opposite. This is not a failure of the free market; it’s a failure of plutocracy. The difference between free markets and plutocracy is stark, and is something that Progressives need to better understand.

  4. eRobin says:

    in pure capitalism, the market is the law

    That’s pure capitalism like what Stalin did was pure communism. Even Smith allowed for the existence of regulation:

    “The government of an exclusive company of merchants is, perhaps, the worst government of any country whatsoever.”

    Smith was all about the market, of course, but he warned about excesses and he did warn about letting companies make the few laws he acknowledged should exist.

  5. Dario Siteros says:

    Yup, you’re right, it’s all Bush’s fault. Also, don’t forget that he is as dumb as a chimp and even eviller than Hitler. Yup, this was the greatest country on earth until he ruined it and made it the worst country on earth. Thanks for your insight.

    Dario

  6. Mark, this is my point. Unfettered capitalism BREEDS plutocracies. Power exiss, it’s like matter or energy, can’t be created or destroyed, only altered in form. In a purely democratic system that power is measured in votes. In a purely capitalistic system power is measured in currency.

    Thus, the mos tpowerful are those with the highest currency levels, and ta-da, plutocracy.

    That this is a government contract is irrelevent because in this instance the government is still just a customer, and an example of what I’m talking about. Now, capitalism, communism, all this stuff, on a small scale possibly can work and that is because the level of power can’t ever accumulate to such levels that oppression and disenfranchisement is possible.

    On the macroscopic level, however, power accrues to insurmountable levels, particularly in homogenous systems wherein counterracting forms of power can keep each other in check.

    Thus in an unchecked plutocracy brought on by unregulated capitalism, opposing power from within the system (ie. consumers) is either not enough to overcome the trends, or the consumer is ambivalent, or… power centers finds who become each other’s consumers/checkers reach mutually beneficial situations that compromise the rights of others.

    So this is why I’ve always been opposed to unregulated capitalism. When money power accrues in the few, then you can use votes to check that power in the benefit of the many.

    And I apologize if this isn’t coherent,Mark, I’m actually paying more attention to NCIS than what I’m writing. Sorry, night time ritual.

    And, yeah, Dario, I do think Bush is reasonably culpable here. But… ah… Matt would kill me. DFTT.

    Nevermind.

  7. Mark says:

    A few notes. And I apologize for my short response before, which was largely a result of a failure to read your post closely and the fact that I wrote it a time when I should have been long in bed.

    Anyways:
    1. Don’t be so quick to dismiss private arbitration as inherently evil. It certainly has its flaws, and in this case those flaws may appear to be on full display. But it’s never a good idea to use one case to generalize about an entire system. Indeed, nowhere do I see any mention of the specific details of the arbitration clause – does it require a neutral arbitrator or does it provide for an employer-appointed arbitrator? This is an important detail that is missing, and my understanding is that neutral arbitrators are required in the employment law context. Lack of neutrality is thus a valid grounds for overturning an arbitrator’s decision.
    2. Arbitration is not inherently as evil as you make it out to be. I actually have some first hand experience with the arbitration process representing a client. As much as I hated the process, the case was -if anything- much more biased in favor of the employee than the employer. The rules are less formal than regular court cases, but there is still ample due process. In the employment law context, I would even argue that the lower evidentiary standards actually benefit the employee in most cases since the employer most often has exclusive control of most of the traditional evidence. By lowering evidentiary standards, the employee is more able to introduce favorable evidence to which she has access that would otherwise be hearsay evidence.
    3. It’s important to ask why so many employers have arbitration clauses these days. The fact is that the costs of litigation have become extraordinarily high for a variety of reasons too lengthy to get into here (much of it having to do with excessive legislative meddling in judicial affairs); on top of that, our courts have become overtaxed and have a caseload far in excess of their capacity. This has particularly become true in the specific field of employment law, and courts and governments have frequently encouraged arbitration agreements as a matter of judicial economy. But the biggest reason for the prevalence of arbitration agreements is the prohibitive costs of traditional litigation. In the case I was involved with, the employer kept its arbitration clause despite the utterly unpleasant experience it had with the arbitration. It didn’t keep the clause because it thought arbitration was more favorable to it, but in spite of the fact that the employer thought arbitration was biased in the employee’s favor. The reason was that the employer would rather risk losing in arbitration than have to fight a prolonged and expensive formal litigation that it would almost certainly win.
    4. Arbitration clauses in employment agreements have no effect on criminal charges. To the extent the arbitration agreement in this case has created harm, it has no connection to the DOJ’s unwillingness to press criminal charges. The lack of criminal charges in this case is, to me, a far greater injustice than the arbitration requirement.
    5. Ordinarily, a case like this would create a monstrous PR problem for the company and would have a huge effect on the company’s bottom line such that it would be in the company’s best interest to settle one-on-one with the victim. But that’s not the case here. Why? Because as you said “as long as they have high powered ties to the government nothing happens.” But it goes beyond that – Halliburton and KBR to my knowledge do almost all of their business with governments rather than with the general public. This is plutocracy that exists precisely because of overly powerful government, not because of a decentralized and limited government. Any business – in a free market, plutocracy, socialism, or otherwise- has one goal only, which is to serve its customers and make a profit. When your only customer is government, then you only need to serve the interests of the government officials who hired you. The only public relations that matter are your relations with those government officials, since the general public is not and cannot be your customer.
    6. Arbitration proceedings are not “secret,” but are subject to the same amount of disclosure as any other case, possibly even more disclosure since I believe (could be wrong here) arbitrators typically lack the authority to unilaterally impose gag orders absent a post-incident agreement between the parties. While there may or may not be an “official record” so to speak, there is nothing to prohibit the parties from creating their own unofficial records that they then release to the public.
    7. Statistics suggesting that employers have a higher “win rate” in arbitration are extremely misleading as they do not include cases that are dismissed on summary judgment, which happens on an extremely regular basis in employment law. It also ignores the fact that the lower costs of arbitration may (and probably do) encourage more claims by employees that would be even more likely to fail than typically in court.

    Bottom line: these are unique cases that say little about the relative plusses and minuses of arbitration agreements more generally. It’s worth remembering, in fact, that private, binding, arbitration is often a key demand by labor unions in contract negotiations. Arbitration agreements are not an evil failure of the market, but are instead a market response to the failures of government. By far the greater injustice in this case is the DOJ”s unwillingness to bring criminal charges against the culpable individuals. It’s also worth pointing out that she has the right to sue the actual culprit regardless of her arbitration agreement with KBR. For more, I would recommend Overlawyered’s Arbitration section: http://overlawyered.com/arbitration/

  8. This is why I like debating with ya Mark.

    Alright, I don’t know to what end I can answer all of your points, however as I expect at least the next couple hours to be busy for me.

    And don’t worry about being short. People like you and I are bound to be so especially when we are getting at the heart of where you and I probably disagree the most.

    First, I don’t believe that arbitration is itself inherently evil if it is put in the right place. Remember, I’m in the military so I’m fully up on the idea of attempting to fix problems at the lowest possible level, and not breaking the chain of command. Of course if you take every problem up to the highest level in any sort of organizational system, you’re going to bog down the top with a lot of frivolity.

    But arbitration should not, particularly in such severe cases as these, be the ONLY means of addressing grievances, and should definitely not be used to preempt any official trials at all. Again, something I take away from the military, and something that can be directly applied to sexual harassment.

    Generally, though, if justice does not avail itself, there should always be a path where it does.

    Now, if I remember rightly the situation with Jamie Leigh Jones, I think it is neutral arbitration. However, and I see what you are saying as far as arbitration sometimes favors the employee, the element that is missing is transparency, and our ability to be satisfied that in fact these people are granted due process.

    To be fair, I went a little off the handle with Jones, but especially in this case, I’m careful not to assign blame to KBR in Baker’s case, but this is because I take a certain faith in our legal system. And that is what is really nagging me here. These women want trials, and they aren’t getting them. So we, as citizens, and consumers, both the individual power brokers in our society, have no way of knowing whether or not justice is satisfied. We cannot say if the charges are valid, and we cannot say if justice has been served.

    One thing I’m pretty sure you and I do see eye to eye upon is transparency, and I think this is the same case, just different group of suits in power.

    As for point 4. we could probably do for more research on that in both of these instances. I remember skimming something at one point, but can’t remember the details. We’ll come back to that.

    Now, point 5. is the point that I think is very important to focus upon because I don’t think that’s true, and we see a great deal of instances of it. Bad publicity isn’t necessarily equal to governmental justice, and I think history has shown it to be a pretty poor replacement for the courts. Look at Don Imus who is back up and running as though nothing happened (Note: As a firm believer in free speech I’m in no way implying that the government should have stepped in, but instead am using this as a situation where Imus transgressed upon the opinions of a great many people, and suffered little penalty for it. He was temporarily “fired” and was probably a little embarrassed for a while, but he’s got his job back, and I’m doubting he really received any kind of financial reproach extending beyond the equivalent of a slap on the wrist.). Jack in the Box is still going strong, Wal-Mart despite all of its inherent problems, and the big point is this. For a major corporation to really suffer due to poor practices, it has to screw up BIG, and even then, PR managers and armies of lawyers eventually prevent any seriously lasting effects.

    Think OIL SPILLS.

    And the market metes out its justice a little differently. Coke got its pee pee spanked for putting out New Coke, but there seems to be any kind of repurcussions for clothing companies such as Nike, or Wal Mart’s own store line from using sweat shops on foreign or US Territory soil.

    As for frivolity of lawsuits and the burdens they have upon companies, don’t get me wrong I get that as pointed out above. I’m not one of these people that are really all about sue every time all the time. On the other hand, again, there must always be a path to justice, and the situation here is finding the sweet spot where someone who has a valid grievance can take their aggressor to court, while at the same time preventing people from the ridiculous kinds of suits such as the Pants Judge, or the McDonald’s coffee case.

    That’s it for now. When I get a spare few minutes I’ll go check out that link and read up on it. But my bottom line is simple. I like judges and juries and transcripts. Not every little paper cut warrants them, but damn it, when we’re talking about multiple instances of sexual assault and rape, why the hell isn’t this on court tv?

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