Soldier's family brings fight with contractor to Congress

McClatchy NewspapersNovember 18, 2009 

WASHINGTON — Army Lt. Col. Dominic "Rocky" Baragona was killed in Iraq on the very day that he was going home.

He was en route, heading south on the road between Baghdad and Kuwait City, when a tractor-trailer lost control, jackknifed across the highway and crushed his Humvee.

That was more than six years ago, when the Iraq war was barely two months old, and Baragona's family has been fighting to hold someone accountable ever since.

His parents, Dominic and Vilma Baragona, and a sister, were on Capitol Hill Wednesday to tell a Senate hearing how their quest for justice after his death has been a frustrating effort.

"Never could I have imagined that I would sit here six years later with no justice, no criminal investigation, few answers," Dominic Baragona Sr. told the Senate Subcommittee on Contracting Oversight.

The family has been asking questions ever since it learned of Baragona's death.

The tractor-trailer that killed Baragona was owned by the Kuwait and Gulf Link Transport Co., an overseas U.S. government contractor that's earned millions of dollars from its work for the military.

However, an Army investigation of the accident initially didn't include key details, including the name of the company that owned the tractor-trailer, or an interview with its driver, or even his identity.

The Baragonas pushed for a second investigation, which found that the driver was at fault. They've endured years of legal stonewalling and a by-the-book attitude from the military that members of the Senate panel said seemed strangely removed from any concern over the death of one of its own.

"I am, frankly, flabbergasted that most — if not all — of the effort in this case came from the Baragona family and not from our military after a member of the military was killed," said the panel's chairman, Democratic Sen. Claire McCaskill of Missouri. "I'm confused there is not more remorse about how this was handled."

She's authored a bill, co-sponsored by several senators from both parties, which would attempt to fill in the legal crevice into which the Baragonas' case on behalf of their son has fallen.

Rocky Baragona was a West Point graduate, near the top of his class, an aeronautical engineer who commanded a maintenance battalion In Iraq in 2003.

He was career Army. Born on Flag Day, June 14, 1960, he died on May 19, 2003.

He grew up in Niles, Ohio, not far from Cleveland, and was a Browns and Indians fan. His dad, who sometimes refers to him as "the Rock," said that his son helped hold the family together when his 8-year-old brother died of leukemia.

Dominic Baragona Sr., a former marine, said that the day Rocky died, his son called him on a satellite phone near the Kuwait border.

"I finished the conversation by saying, 'Hey Rock. Is there anything I have to worry about?'"

His son replied, "No, Dad. Unless something stupid happens, you don't have to worry about nothing."

The Baragonas sued KGL for wrongful death in 2005. KGL ignored the lawsuit, and a federal judge ordered a default judgment against the company for $5 million.

It can be difficult sometimes, though, to bring foreign contractors into American courts if they argue that the courts have no jurisdiction because the companies claim no ties to the U.S., which is what KGL did.

The company challenged the order. The judge reluctantly agreed and dismissed the case.

"I'm not saying that there is not some fundamental wrong here and I think what the defendant has done is ghastly," federal Judge William S. Duffey Jr. said at a hearing last year.

The family also has been pressing the military to penalize KGL by either suspending the company or block it from obtaining future military contracts.

McCaskill and Republican Sen. Robert Bennett of Utah, the subcommittee's ranking member, urged Defense Secretary Robert Gates in a recent letter to look into the case.

They said that since 2000, KGL has earned nearly $44 million as a government contractor, and an additional $100 million as a subcontractor. The Defense Department has also approved the company as a bidder on a new food supply contract for the Middle East worth more than $3 billion.

KGL's law firm, Crowell & Moring, declined to comment.

Cheryl Irwin, a spokeswoman for the Defense Department, said that under current rules, the agency can't cancel a contract when a contractor is involved in an injury to a service member unless the injury occurred as a result of the contractor failing to perform its obligations.

She said suspending or blocking a company from obtaining future contracts is possible, "but not as punishment for past actions."

McCaskill's legislation would require foreign companies who want to do business with the U.S. to agree to jurisdiction by the courts. It would cover foreign contractors in cases involving injuries, rape or sexual assault to members of the military, employees of the U.S. government and American civilians employed by the contractors.

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