JURIST Guest Columnist Victor Hansen of New England School of Law says that the case of US civilian contractor Alaa 'Alex' Mohammad Ali, currently the subject of criminal charges initiated by the US military, is an ostensibly unremarkable proceeding that could nonetheless have a significant impact on US military law and bears careful attention as it moves forward…

On April 5th the Headquarters of the Multi-National Force-Iraq announced that the military was initiating criminal charges against a civilian contractor, Alaa “Alex” Mohammad Ali. Given the number of civilian contractors that have been part of the war in Iraq over the past five years, the possibility that one of those contractors may be involved in misconduct is certainly no surprise. What is a surprise is that with this particular contractor the military is proceeding with charges of aggravated assault under the Uniform Code of Military Justice (UCMJ). In other words, Ali will be charged, and if there is a trial, he will be tried as a civilian under military law.

The military is proceeding under a recent revision of the UCMJ that went largely unnoticed by commentators outside of the military. In the fiscal year 2007 Defense Authorization Act, Senator Lindsay Graham added an amendment to Article 2(a)(10) of the UCMJ which expands military jurisdiction to civilians accompanying the force in contingency operations. The amendment passed into law largely unnoticed and now seems to give military commanders the authority to discipline civilian contractors accompanying the force in Iraq and anywhere else U.S. forces are engaged in contingency operations.

This amendment to the UCMJ is seen by some as a tacit recognition that the Military Extraterritorial Jurisdiction Act (MEJA), PUBLIC LAW 106—523, has failed to live up to its intended purpose which was to extend federal criminal jurisdiction to civilians working with U.S. forces overseas. The track record for MEJA over the past eight years has shown the statute to be largely ineffectual for a variety of reasons not the least of which is the significant practical hurdles a federal prosecutor must overcome in order to successfully prosecute these cases. The most recent incidents with Blackwater contractors illustrate some of the difficulty if not impossibility of effectively applying MEJA to civilian contractors accompanying the forces.

Even so, the conventional wisdom seemed to be that the new expansion of military jurisdiction over civilians accompanying the force would go largely unused. The thought was that military commanders had enough on their plates as it is and they had little interest in court-martialing civilian contractors. Especially since the more expedient solution would be to simply ship the contractor out of theater. The conventional wisdom also held that if the military were to exercise jurisdiction over a civilian contractor, it would be in only very serious or extreme cases. This wisdom seems not to be holding true as demonstrated by this first case where the military is exercising jurisdiction. Mr. Ali is being charged with aggravated assault for stabbing a fellow contractor. While these charges are potentially serious, they lack the kind of headline grabbing misconduct that many experts expected would precede the first “test case.”

The military’s decision to assert jurisdiction over this contractor raises many questions that will not be easily answered. The first is whether subjecting a civilian to military jurisdiction in this case is even constitutional. While both civilian and military courts have addressed this question on a number of occasions, the Supreme Court has never directly addressed the question of how broad the military commander’s powers are in time of war let alone in contingency operations.

Another open question is what specific punitive articles of the UCMJ should apply to civilians. For example, some military crimes specifically require that the accused person be a service member. Other crimes, particularly those associated with common law criminal offenses have no such requirement. It is not clear then how much of the UCMJ should or would apply.

Another important and yet unresolved question is how does the expansion of UCMJ authority over civilians impact on the scope of a commander’s responsibility under the law of war. The doctrine of command responsibility holds that military commanders can be criminally liable for the conduct of the forces under their command if those commanders fail to prevent, suppress, or punish law of war violations committed by their forces. While this doctrine has not been codified under the UCMJ, is has been codified in a number of forms in various international treaties and statutes and the doctrine has obtained the status of customary international law. With the expansion of military jurisdiction over civilians, and with the military now indicating that it is willing to apply this expanded jurisdiction, one important question is whether military commanders can now be held criminally responsible for the law of war violations, such as abuse of detainees, committed by civilians accompanying the force.

While seemingly unremarkable for its facts, the case of Alaa “Alex” Mohammad Ali could have a significant impact on military law and bears careful attention as it moves forward.

Victor Hansen was a lieutenant colonel in the United States Army JAG Corps and currently teaches at New England School of Law
——–