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.”