First Contractor Charged Under Military Justice System

It began as a simple argument between two Arabic-speaking interpreters. It rose to a physical altercation, and when the two men found themselves alone in a room later that February afternoon, the tension had hardly dissipated. What followed was not what either man could have imagined. One was left with four knife wounds to his sternum, and the other -- a 44-year-old dual Canadian and Iraqi citizen -- was put behind bars in Baghdad.

The incident might have been no more than a footnote amid the death and carnage of daily life in Iraq. But the case against the jailed interpreter, who was employed by L-3 Communications Titan Group, is expected to be the most significant test of whether military contractors can be held legally accountable in the theatre of war.

Until now, contractors in Iraq have largely remained outside the reach of the legal system. But changes tucked into federal legislation in late 2006 have made it possible to charge civilians under the military justice system. The case against Alaa Mohammad Ali, charged last week, is the first following the changes to the military justice system, and Ali is the first civilian to face a possible court-martial in nearly four decades.

"The issues are significant just because it's an untested power," says Michael Navarre, a former military lawyer now in private practice. "It will have an impact not only on this case but on how contractor employees are treated under the law."

If Ali's case is successful, it could have broad ramifications for contractors overseas, although it's unclear that it would affect the investigation into the Blackwater shooting -- in which 17 Iraqis were killed in an incident involving the security firm -- because the individuals were contractors of the U.S. State Department, not the military.

But while the charge against Ali, a simple assault, may seem straightforward, trying civilians under military code raises significant constitutional questions -- ones that would likely make Ali's case a key test in the court system, legal experts say.

First among those issues is whether Congress had the authority to make this change. Second is the question of a civilian’s right to be judged by a jury of peers. Though the military system provides juries, they are comprised of military personnel, not civilians, and are often as small as five individuals compared with the average 12 in federal court. What's more, a military jury needs only a two-thirds majority for conviction; federal courts require unanimity.

There is also a question of the right to a grand jury, which does not exist in the military system. Though an investigating officer goes through a similar process to review charges -- known as an Article 32 hearing -- the ultimate decision is not in the hands of a lawyer, but the commanding officer. It's also unclear whether Ali's Canadian citizenship could create diplomatic issues between the U.S. and Canada.

The last time the U.S. Supreme Court looked at trying civilians in the military was in 1957 when it struck down a case that tried to charge a military official's spouse under the military justice system. The reasoning was simple: the law only allowed the military to charge civilians in a time of declared war. The military largely refrained from going after civilians, and its attempts during the Vietnam War were mostly dismissed.

But as contractors have become a more significant part of military operations, particularly in Iraq, concern has grown that these individuals are escaping legal accountability while ordinary soldiers are not. Congress tried to bring contractors under the federal system with a 2000 bill known as the Military Extraterritorial Jurisdiction Act (MEJA), by giving the U.S. Justice Department jurisdiction for individuals accompanying the military. But the statute has been used very rarely since. Seeking a different solution, Republican Sen. Lindsey Graham (S.C.) and Democratic Sen. John Kerry (Mass.) inserted an amendment in the 2007 Defense Department authorization bill changing the language in the military code to allow charges against civilians during "contingency operations," which include Iraq. “There were concerns that contractors were operating in a somewhat lawless environment,” says Kevin Bishop, spokesman for Graham. “This was something that needed to be addressed.”

Why Ali’s case is the first charged under the military system is unclear. Although the statute has been on the books for more than a year, Defense Secretary Robert Gates released internal guidance on the law only last month. Those rules require the military to consult with the Justice Department before prosecuting a civilian. And that is what happened with Ali, says Col. Bill Buckner, spokesman for the multinational command in Iraq. But after the Justice Department declined prosecution under MEJA, the military took the lead.

Ali’s case is just beginning. He faces an Article 32 hearing April 10, in which the investigating officer will decide whether to recommend to the commanding officer, Lt. Gen. Lloyd Austin III, that Ali be court-martialed, Buckner says. In the meantime, Ali’s lawyers say the case is already taking a toll on Ali and his family.

Born and raised in Baghdad, Ali remained in Iraq until the Persian Gulf War. After taking part in the Shi’ite rebellion against Saddam Hussein in 1991, he fled the country for Canada, his lawyers say. His Iraqi-born wife eventually joined him, and they started a family. Ali worked as a shop manager, but with three children and a fourth on the way, he began looking for a job as a translator in Iraq. The money was certainly a draw, but he was also motivated by the cause, his lawyers said in a phone interview from Iraq.

Ali first arrived in Iraq in January after formal training in the United States to work as a civilian interpreter for the military police. Based in the Al-Anbar province, he helped the military both train Iraqi police and took part in patrols in the area, his lawyers say.

Details of the alleged assault remain vague. According to the military, the two men got in an argument earlier in the day, and when they met later in the afternoon, the other interpreter started to walk out of the room when Ali allegedly “grabbed him from behind and cut him four times with a knife.” Ali’s lawyers say Ali had been attacked by the other interpreter earlier in the day and that later on he was attacked by the same individual. “He denies being criminally responsible for assault,” says Army Capt. Clay Compton, Ali’s lead counsel. “Mr. Ali acted in a reasonable and prudent manner in fear of his life.”

What’s more, his lawyers argue that Ali is being unfairly jailed before trial. They say that after the incident Ali was brought to Baghdad and told to stay at Camp Victory until further notice. His lawyers say a representative from his company told him he needed to go back to work and put him on a plane to Al-Anbar. They say this return was later considered a violation of the order to stay at Camp Victory and became the basis for his pretrial detention in Baghdad. What that means, his lawyers say, is that Ali is no longer being paid by the contractor, something that rarely occurs for soldiers until after a conviction.

Buckner declined comment on the reasons for Ali’s confinement, but said in a statement that “the military legal system is inherently a fair system…Mr. Ali has been and will continue to be afforded the same rights, privileges and legal protections any U.S. service member receives in a court-martial.”

Though Ali’s lawyers say he is being treated quite well -- and allowed to regularly speak with his wife on his cell phone and to check his bank accounts on a computer -- Ali is unable to support his pregnant wife and is struggling to pay the family mortgage. “This is not the case to try out this statute,” Compton says. “This isn’t some U.S. contractor that is going to get away with murder because there is no jurisdiction there."