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59-006

110TH CONGRESS

REPORT

HOUSE OF REPRESENTATIVES

1st Session

110-353

--WAR PROFITEERING PREVENTION ACT OF 2007

SEPTEMBER 27, 2007- Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

Mr. CONYERS, from the Committee on the Judiciary, submitted the following

R E P O R T

[To accompany H.R. 400]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill (H.R. 400) to prohibit profiteering and fraud relating to military action, relief, and reconstruction efforts, and for other purposes, having considered the same, reports favorably thereon with an amendment and recommends that the bill as amended do pass.

CONTENTS Page
The Amendment 1
Purpose and Summary 2
Background and Need for the Legislation 2
Hearings 4
Committee Consideration 4
Committee Votes 4
Committee Oversight Findings 4
New Budget Authority and Tax Expenditures 4
Congressional Budget Office Cost Estimate 4
Performance Goals and Objectives 6
Constitutional Authority Statement 6
Advisory on Earmarks 6
Section-by-Section Analysis 6
Changes in Existing Law Made by the Bill, as Reported 7

THE AMENDMENT

SECTION 1. SHORT TITLE.

SEC. 2. PROHIBITION OF PROFITEERING.

`Sec. 1040. War profiteering and fraud

`1040. War profiteering and fraud.'.

PURPOSE AND SUMMARY

H.R. 400, `The War Profiteering Prevention Act of 2007,' strengthens the tools available to Federal law enforcement to combat contracting fraud during times of war, military action, or relief or reconstruction activities. The bill creates a new criminal fraud offense in title 18 of the United States Code to prohibit fraudulent acts involving the provision of goods or services in connection with a mission of the United States Government overseas. It also makes this new offense a predicate crime for criminal forfeiture, as well as for Federal money laundering and racketeering offenses.

BACKGROUND AND NEED FOR THE LEGISLATION

Over the past 4 years, war profiteering and reconstruction fraud have become a significant problem during the engagement of United States forces in Iraq and Afghanistan. The United States has devoted more than $50 billion to contractors for relief and reconstruction activities in Iraq alone, with billions of these dollars unaccounted for. 1

[Footnote] For example, the Special Inspector General for Iraq Reconstruction outlined in a report that the former Coalition Provisional Authority in Iraq could not account for nearly $8.8 billion. 2

[Footnote]

[Footnote 1: Steve Kroft, Billions Wasted in Iraq?, 60 Minutes, Feb. 12, 2006, available at http://www.cbsnews.com/stories/2006/02/09/60minutes/printable1302378.shtml.]

[Footnote 2: Special Inspector General for Iraq Reconstruction, Report to Congress (Jan. 30, 2005), available at http://www.sigir.mil/reports/QuarterlyReports/Jan05/SIGIR%20Jan05%20-%20Report% 20to%20Congress.pdf]

Private contractors have been used to a greater extent during these war-time activities than at any time in our history. The exigencies of war overseas, however, often make oversight of these contractors more difficult, and expenditures are often made with fewer audit and other controls than during normal government procurement. As a result, the provision of goods and services during these military actions, as well as during relief and reconstruction activities, are more vulnerable to acts of fraud and abuse.

Inspectors General have opened hundreds of investigations into fraud, waste, and abuse in Iraq, Kuwait, and Afghanistan involving, among other things, illegal kickbacks, bid-rigging, embezzlement, and fraudulent over-billing. The Special Inspector General for Iraq Reconstruction has more than 70 open and active investigations regarding contracting fraud and abuse in the war, with a number of them having been referred to the Department of Justice. 3

[Footnote] These investigations have uncovered crimes committed by employees of large and small government contractors in Iraq and Afghanistan, and many of these investigations involve abuse of the `cost-plus' and `no-bid' contracts used during times of emergency, such as military, relief, or reconstruction activities. In addition, private whistleblowers have filed numerous civil claims involving contractors in Iraq under the False Claims Act. 4

[Footnote] Considering the vast amount of evidence and investigations, there have been relatively few prosecutions for reconstruction fraud.

[Footnote 3: See War Profiteering and Other Contractor Crimes Committed Overseas: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security of the H. Comm. on the Judiciary, 110th Cong. (2007) (testimony of Stuart W. Bowen).]

[Footnote 4: There are an estimated 50 such cases pending against Iraq contractors, including large firms like Kellogg Brown and Root. See Yochi Dreazen, Attorney Pursues Iraq Contractor Fraud, WALL ST. J., Apr. 19, 2006, at B1.]

The lack of prosecutions--successful or otherwise--underscores the inadequacies in current law. There is currently no Federal criminal law specifically targeted at prohibiting contracting fraud during times of war, military action, or relief or reconstruction activities. Under current law, such fraudulent activities do not constitute a criminal offense by those who take advantage of exigent circumstances in times of emergency. Moreover, no Federal law provides enhanced criminal punishment for fraudulent acts during times of war, or relief or reconstruction activities.

In addition, none of the current fraud statutes explicitly extend extraterritorial jurisdiction for fraud offenses during times of war, military action, or relief or reconstruction activities. In the famous Custer Battles case, one contractor in Iraq was found guilty of 37 counts of fraud, including false billing, and was ordered to pay more than $10 million in damages. A Federal judge subsequently overturned the decision on a technicality that the contracts were let through the Coalition Provisional Authority, which the court held not to be part of the United States government, thereby barring the application of United States fraud laws. 5

[Footnote]

[Footnote 5: Renae Merle, Verdict Against Iraq Contractor Overturned, WASH. POST, Aug. 19, 2006, at D1.]

To address these gaps in existing law, Rep. Neil Abercrombie (D-HI) introduced H.R. 400, the `War Profiteering Prevention Act of 2007,' on February 2, 2007. A companion bill to this measure was introduced by Senator Patrick Leahy (D-VT) as S. 119.

HEARINGS

The Committee's Subcommittee on Crime, Terrorism, and Homeland Security held 1 day of hearings on H.R. 400 on June 19, 2007. Testimony was received from the Honorable Stuart W. Bowen, Jr., Special Inspector General for Iraq Reconstruction; Thomas F. Gimble, Principal Deputy Inspector General, United States Department of Defense; Barry M. Sabin, Deputy Assistant Attorney General, United States Department of Justice; and Alan Grayson, Grayson & Kubli, P.C.

COMMITTEE CONSIDERATION

On July 24, 2007, the Subcommittee on Crime, Terrorism, and Homeland Security met in open session and ordered the bill, H.R. 400, favorably reported, by voice vote, a quorum being present. On August 1, 2007, the Committee met in open session and ordered the bill, favorably reported with an amendment, by voice vote, a quorum being present.

COMMITTEE VOTES

In compliance with clause 3(b) of Rule XIII of the Rules of the House of Representatives, the Committee advises that there were no recorded votes during the Committee's consideration of H.R. 400.

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of Rule XIII of the Rules of the House of Representatives, the Committee advises that the findings and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of Rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report.

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of Rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new budgetary authority or increased tax expenditures.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of Rule XIII of the Rules of the House of Representatives, the Committee sets forth, with respect to the bill, H.R. 400, the following estimate and comparison prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974:

U.S. Congress,

Congressional Budget Office,

Washington, DC, August 10, 2007.

Hon. JOHN CONYERS, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 400, the War Profiteering Prevention Act of 2007.

If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Mark Grabowicz, who can be reached at 226-2860.

Sincerely,

Peter R. Orszag,

Director.

H.R. 400--War Profiteering Prevention Act of 2007.

CBO estimates that implementing H.R. 400 would have no significant cost to the Federal Government. Enacting the bill could affect direct spending and revenues, but CBO estimates that any such effects would not be significant.

H.R. 400 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would impose no costs on State, local, or tribal governments.

H.R. 400 would make it a Federal crime to commit fraudulent acts while providing goods or services for a U.S. mission overseas. Because the bill would establish a new offense, the Government would be able to pursue cases that it otherwise would not be able to prosecute. We expect that H.R. 400 would apply to a relatively small number of offenders, so any increase in costs for law enforcement, court proceedings, or prison operations would not be significant. Any such costs would be subject to the availability of appropriated funds.

Because those prosecuted and convicted under H.R. 400 could be subject to criminal fines, the Federal Government might collect additional fines if the legislation is enacted. Criminal fines are recorded as revenues, deposited in the Crime Victims Fund, and later spent. CBO expects that any additional revenues and direct spending would not be significant because of the small number of cases likely to be affected.

Persons prosecuted and convicted under the bill also could be subject to the seizure of certain assets by the Federal Government. Proceeds from the sale of such assets would be deposited into the Assets Forfeiture Fund and spent from that fund, mostly in the same year. Thus, enacting H.R. 400 could increase both revenues deposited into the fund and direct spending from the fund. However, CBO estimates that any increased revenues or spending would be negligible.

On May 2, 2007, CBO transmitted a cost estimate for S. 119, the War Profiteering Prevention Act of 2007, as ordered reported by the Senate Committee on the Judiciary on April 25, 2007. The two bills are similar and the cost estimates are identical.

The CBO staff contact for this estimate is Mark Grabowicz, who can be reached at 226-2860. This estimate was approved by Peter H. Fontaine, Assistant Director for Budget Analysis.

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of Rule XIII of the Rules of the House of Representatives, H.R. 400, as amended, is intended to punish and deter the practice of profiteering and fraud relating to military action, relief, and reconstruction efforts.

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the House of Representatives, the Committee finds the authority for this legislation in article 1, section 8, clauses 10, 14, 16, and 18 of the Constitution.

ADVISORY ON EARMARKS

In accordance with clause 9 of Rule XXI of the Rules of the House of Representatives, H.R. 400 does not contain any congressional earmarks, limited tax benefits, or limited tariff benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.

SECTION-BY-SECTION ANALYSIS

The following discussion describes the bill as reported by the Committee.

Sec. 1. Short title. Section 1 sets forth the short title of the bill as the `War Profiteering Prevention Act of 2007.'

Sec. 2. Prohibition of Profiteering. Section 2 creates a new criminal offense in title 18 of the United States Code for fraudulent acts involving contracts or the provision of goods or services in connection with a mission of the United States Government overseas. Such missions would include war, military actions, and relief or reconstruction activities. This would include circumstances where war was declared, or where the Executive Branch was engaged in any military action with or without congressional authorization. This would also include relief or reconstruction activities, whether or not a war or military action was undertaken. This provision applies not only to any contract with the United States government overseas, but also to any provisional authority, such as the Coalition Provisional Authority in Iraq.

An offense under this provision may be committed by engaging in fraudulent conduct or making a materially false statement. Pursuant to this provision, it is a crime to execute or attempt to execute a scheme or artifice to defraud the United States or to materially overvalue any good or service with the specific intent to defraud.

Section 2 is intended to prohibit schemes to defraud the United States, including efforts to exploit `cost plus' or `no-bid' contracts by materially overvaluing goods or services with the specific intent to defraud. On the other hand, section 2 is not intended to prohibit or punish contractors providing goods or services in the normal course of business. To that end, the legislation specifically provides that violators may only be criminally liable if they materially overvalue any good or service `with the intent to defraud.' This requirement ensures that no contractor may be prosecuted for this offense based on the contractor's merely negligent or innocently mistaken conduct. Accordingly, a person's conduct must be undertaken knowingly to constitute an offense under this provision.

The material false statement provisions make it a crime to: (1) falsify, conceal, or coverup by any trick, scheme, or device a material fact; (2) make any materially false, fictitious, or fraudulent statements or representations; or (3) make or use any materially false writing or document knowing it contains a false, fictitious, or fraudulent statement. This language is consistent with other materially-false-statement provisions under Federal law such as sections 1001 and 1035 of title 18 of the United States Code.

Section 2 explicitly provides for extraterritorial jurisdiction, and the provision is intended to extend jurisdiction for such offenses to the full extent of United States law. This is intended to ensure that offenses committed outside the United States, even by non-United States nationals, can be prosecuted. Furthermore, consistent with other Federal fraud provisions, the United States Government need not be a victim or incur any losses from an offense under this provision, provided the conduct satisfies the other requisite elements of the offense.

Section 2 establishes venue for the offense as authorized by existing Federal statutes, 6

[Footnote] including extradition, in any district where any act in furtherance of the offense took place, or where any party to the contract or the provider of goods or services is located.

[Footnote 6: See 18 U.S.C.A. Sec. 3231-3244 (2006).]

A violation of the fraud component of this provision is punishable by imprisonment for up to 20 years, and a violation of the materially-false-statement component of this provision is punishable by imprisonment for up to 10 years. All violations are subject to fines of up to $1 million, or twice the gross profits or other proceeds of the offense, whichever is greater. In addition, any unlawful proceeds may be subject to criminal forfeiture, and the new offense constitutes a predicate crime for money laundering (18 U.S.C. Sec. 1956(c)(7)) and for racketeering offenses (18 U.S.C. 1961(1)).

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

TITLE 18, UNITED STATES CODE

* * * * * * *

PART I--CRIMES

* * * * * * *

CHAPTER 46--FORFEITURE

* * * * * * *

Sec. 982. Criminal forfeiture

* * * * * * *

CHAPTER 47--FRAUD AND FALSE STATEMENTS

Sec.
1001. Statements or entries generally.
* * * * * * *
1040. War profiteering and fraud.

* * * * * * *

Sec. 1040. War profiteering and fraud

* * * * * * *

CHAPTER 95--RACKETEERING

* * * * * * *

Sec. 1956. Laundering of monetary instruments

* * * * * * *

* * * * * * *

* * * * * * *

* * * * * * *

CHAPTER 96--RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS

* * * * * * *

Sec. 1961. Definitions

* * * * * * *