Trafficking in Persons: International Dimensions and Foreign Policy Issues for Congress
Liana Sun Wyler
Analyst in International Crime and Narcotics
October 17, 2012
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Preventing U.S. Government Participation in Trafficking Overseas
A final dimension of foreign policy activity to combat human trafficking addressed in this report is efforts to prevent U.S.-facilitated trafficking from occurring abroad. U.S. government personnel, diplomats, peacekeepers, and contractors operate overseas and represent U.S. interests abroad at U.S. embassies, consulates, military bases, and other posts located in foreign countries where domestic anti-trafficking laws and the enforcement of such laws may vary significantly.
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In recent decades, news reports have unearthed a range of international sex and labor trafficking schemes that have allegedly involved U.S. representatives overseas as the traffickers and exploiters and the end-user consumers of services provided by trafficking victims. Current focus has centered on allegations at U.S. installations in Iraq and Afghanistan, as well as at U.S. embassy missions, where third-country nationals (TCNs) are hired by subcontractors to perform low-skill, labor-intensive jobs.48 Such schemes involving U.S. personnel apparently occur despite NSPD-22, discussed above, which established a “zero tolerance” policy toward all U.S. government employees and contractor personnel overseas who engage in human trafficking violations. Individual departments and agencies have bolstered federal statutes and guidance with internal policies. Examples include DOD’s Instruction Number 2200.01 on Combating Trafficking in Persons, most recently updated in September 2010; USAID’s Counter-Trafficking in Persons Code of Conduct, which went into effect in February 2011; and the State Department’s Procurement Information Bulletin No. 2011-09 on Combating Trafficking in Persons, issued in March 2011.
The 112th Congress has introduced several bills that seek to improve the enforcement of antitrafficking regulations among federal contractors.49 Drawing in part on congressional initiative on this issue, President Obama issued Executive Order 13627, Strengthening Protections Against Trafficking in Persons in Federal Contracts, on September 25, 2012.
TVPA: Contractor Prohibitions and Reporting Requirements
The TVPA requires the President to authorize federal agencies and departments to terminate, without penalty, grants, contracts, and cooperative agreements if the grantee, subgrantee, contractor, or subcontractor (1) engages in severe forms of trafficking in persons while the grant, contract, or cooperative agreement is in effect; (2) procures a
48 Third-country nationals (TCNs) include non-local, non-U.S. citizen workers temporarily hired to work by federal contractors for the U.S. government overseas. There is concern that they are particularly susceptible to trafficking schemes, according to recent news and U.S. inspector general reports. As neither U.S. citizens nor citizens of the host nation where they are working, such TCNs are vulnerable due to distance and isolation from their home communities, the possibility of language barriers, and dependence on their employers to procure and maintain current visas and work permits. The U.S. government is often heavily reliant on such contractors for support in providing services at its overseas posts related to facilities maintenance, gardening, construction, cleaning, food, and local guard forces. Often, such TCNs are hired to perform labor for significantly lower cost than would be required to hire local staff. See for example DOS and the BBG, OIG, Performance Evaluation of Department of State Contracts to Assess the Risk of Trafficking in Persons Violations in Four States in the Cooperation Council for the Arab States of the Gulf, report no. MERO-I-11-06, January 2011.
49 See for example S. 2234 and H.R. 4259, the End Trafficking in Government Contracting Act of 2012 and S. 2139,
the Comprehensive Contingency Contracting Reform Act of 2012. For further discussion of trafficking-related legislation in the 112th Congress, see the Appendix.
50 Section 106(g) of the TVPA, as amended; 22 U.S.C. 7104(g).
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commercial sex act while the grant, contract, or cooperative agreement is in effect; or (3) uses forced labor in the performance of the grant, contract, or cooperative agreement.50 Also pursuant to the TVPA, actions to enforce the U.S. government’s zero-tolerance policy against human trafficking in contracts are reported in an annual report to Congress prepared by the Attorney General.51
Subsequently, the TVPRA of 2008 mandated additional reporting requirements for the OIGs for the Departments of State and Defense and USAID.52 This provision directed the OIGs to investigate, over the course of three years from FY2010 through FY2012, a series of contracts and subcontracts at any tier under which contractors and subcontractors are at heightened risk of engaging in acts related to human trafficking. Specified high-risk activities include confiscation of employee passports, restriction on an employee’s mobility, abrupt or evasive repatriation of an employee, and deception of an employee regarding the work destination.
Although the OIG reports submitted to Congress pursuant to the TVPRA of 2008 collectively documented few instances of likely contractor involvement in severe forms of human trafficking, solicitation of commercial sex acts, sex trafficking, or involuntary servitude,53 several of them identified contractor management practices that increased the risk of human trafficking and related violations. The State Department’s OIG, for example, found instances of contractor coercion at recruitment and destination points and exploitative conditions at work, including frequent instances in which workers paid recruiters brokerage fees and employers regularly confiscated employee passports, withheld wages, used confusing calculations to determine earnings, provided unsafe or unsanitary living conditions for workers, and participated in deceptive recruitment practices that exploited workers’ lack of language, education, and information.54 The DOD’s OIG evaluated selected contracts in the U.S. Pacific Command and U.S. Central Command areas of responsibility and revealed problems with ensuring that contracts had the appropriate anti-trafficking clauses.55
Although the U.S. government reports that it continues to investigate alleged cases of trafficking involving U.S. officials and contractors, many experts have questioned why such cases rarely result in criminal prosecution or other enforcement measures. Regarding federal contractors, allegations are generally corrected internally by the contractor before more severe contracting penalties are imposed by the U.S. government, such as contract termination, or contractor disqualifications, suspensions, and debarments. Though there are anti-trafficking laws, regulations, and zero-tolerance policies in place, some question whether they are effectively enforced.56 In war zones and overseas contingency operations, enforcement capacity is
51 Section 105(d)(7) of the TVPA, as amended; 22 U.S.C. 7103(d)(7). Although not congressionally mandated to report on anti-trafficking progress made by the U.S. government in the TIP Report, the 2011 edition reports that allegations of U.S. defense contractor violations were investigated and ultimately resulted in the dismissal of one employee by a DOD contractor. The 2012 edition reports that DOD conducted at least two investigations into allegations of forced labor by federal contractors during the reporting period. TIP Report (2011 and 2012), “Country Narrative for the United States.”
52 Section 232 of the TVPRA of 2008 (P.L. 110-457).
53 DOS and the BBG, OIG, Performance Evaluation of Department of State Contracts to Assess the Risk of Trafficking in Persons Violations in the Levant, report no. MERO-I-11-07, March 2011; Summary of Calendar Year 2009 Trafficking in Persons (TIP) Activities and Findings, report to the House Committee on Foreign Relations, January 15,
2010; Embassy Riyadh and Constituent Posts, Saudi Arabia, report no. ISP-I-10-19A, March 2010.
54 DOS and the BBG, OIG, Performance Evaluation of Department of State Contracts to Assess the Risk of Trafficking
in Persons Violations in Four States in the Cooperation Council for the Arab States of the Gulf, report no. MERO-I-11-06, January 2011; Summary of Calendar Year 2009 Trafficking in Persons (TIP) Activities and Findings, report to the House Committee on Foreign Relations, January 15, 2010; and The Bureau of Diplomatic Security Baghdad Embassy Security Force, report no. MERO-A-10-05, March 2010.
55 DOD, OIG, Evaluation of DOD Contracts Regarding Combating Trafficking in Persons, report no. IE-2010-001, January 2010; and Evaluation of DOD Contracts Regarding Combating Trafficking in Persons: U.S. Central Command, report no. IE-SPO-2011-002, January 18, 2011.
56 See for example U.S. Congress, House Committee on Oversight and Government Reform, Subcommittee on Technology, Information Policy, Intergovernmental Relations, and Procurement Reform, Are Government Contractors
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