CommentaryKevin Lanigan [Director, Human Rights First, Law and Security Program]: "The U.S. military in Iraq is quickly moving toward its first court-martial of a civilian contractor since the Vietnam war. The case holds some promise of beginning to reign in a pervasive culture of contractor impunity, but nevertheless raises important constitutional and human rights issues. And the case begs a critical question too: Why is the Justice Department not prosecuting it?
The Ali case
Alaa "Alex" Mohammad Ali is a dual citizen of Canada and Iraq; he left Iraq for Canada after the 1990-91 Persian Gulf War, as Saddam Hussein imposed repressive measures on Iraq's majority Shi'a Arab population. After the invasion of Iraq in 2003, Ali was hired as an interpreter and sent to Iraq by Reston, Virginia-based L-3 Communications Titan Group. Under its contract with the U.S. Army, L3 Titan provides approximately 7,000 interpreters in Iraq; according to a January 2008 L3 press release, this contract generated $738 million in "sales" in 2007.
Ali is charged with stabbing a fellow L3 Titan interpreter on February 23, 2008, following an argument on a remote U.S. military forward operating base (FOB) in al Anbar province, where both interpreters lived and worked. Six days after the incident Ali was moved to Camp Victory in Baghdad, where he remains confined in the complex of military bases adjoining Baghdad International Airport that serves as the operational headquarters of the U.S. military in Iraq.
UCMJ authority
In October 2006, Congress amended the Uniform Code of Military Justice (UCMJ) to extend the military's authority to prosecute crimes committed by civilians "serving with or accompanying" the armed forces. Prior to this amendment, such jurisdiction existed only "in time of war." The 2006 amendment extended jurisdiction to civilians serving in a "contingency operation," see 10 U.S.C. § 802(a)(10) — the current doctrinal term for the sorts of military operation in which the United States is currently engaged in Iraq and Afghanistan.
It took nearly a year-and-a-half for the Department of Defense (DoD) to prepare initial implementing instructions for its expanded UCMJ authority. On September 25, 2007 — just over a week after the notorious Blackwater International shooting incident in Baghdad's Nisoor Square in which 17 Iraqi civilians were killed — Deputy Secretary of Defense Gordon England issued a directive encouraging legal proceedings against contractors who violate military law, but providing no specific implementation guidance. Unsurprisingly, no UCMJ prosecutions followed. On March 10, 2008, Secretary of Defense Robert Gates issued a memorandum to senior DoD officials providing implementation guidance. The Gates memorandum was issued two weeks after Ali allegedly stabbed his colleague at the al Anbar FOB.
Initiating the prosecution
Less than a month later, on April 5, Multi-National Corps — Iraq (MNC-I) announced that Ali had been charged with aggravated assault in violation of UCMJ Article 128. Under the guidelines issued by Secretary Gates, before the military could refer court-martial charges against Ali, the combatant commander (in this case acting Central Command commander U.S. Army Lieutenant General Martin Dempsey) was required to provide formal written notice of the case to the Justice Department (DoJ). Under the Gates guidelines, such notice starts the clock on a 14-day period for DoJ to determine whether it intends to prosecute the case in civilian court, in which case the military would defer to civilian authorities. If DoJ requires more time to make its assessment, it need merely ask the Deputy Secretary of Defense and "an extension shall be granted . . . ."
Although DoJ has been publicly silent in Ali, we can safely assume that General Dempsey followed Secretary Gates' instructions and notified DoJ of the case, but the Department presumably decided — as it almost invariably seems to do when it comes to serious contractor crime — "Not us." Thus on May 11, U.S. Army Lieutenant General Lloyd Austin, III, the MNC-I commander and the "general court-martial convening authority" in Ali, formally referred the Ali case for a general court-martial on charges of aggravated assault.
Ali's court-martial will be held in Iraq. Its date and location have not yet been disclosed.
Whither Justice?
On the basis of the facts disclosed by the military, it seems clear there would be civilian court jurisdiction under the Military Extraterritorial Jurisdiction Act (MEJA). However, DoJ has little appetite for these cases: There has been only one private contractor ever indicted by the Department under MEJA for any sort of physically abusive or violent crime — Aaron Langston of Snowflake, Arizona, charged with assaulting a fellow contractor in Iraq with a knife. See United States v. Aaron Bridges Langston, CR-07-210-PHX (U.S. Dist. Ct., Dist. of Ariz., Indictment, Feb. 27, 2007). Langston's case falls under MEJA jurisdiction — as presumably would Ali's — because he is charged with a felony-level offense falling within the U.S. government's Special Maritime and Territorial Jurisdiction (SMTJ), and because through his job with DoD contractor Kellogg, Brown and Root (KBR), Langston was "employed by the armed forces outside the United States."
But DoJ has organized its approach to MEJA cases in a way that creates significant internal disincentives to prosecute. Responsibility for initiating a MEJA prosecution is localized in individual U.S. Attorney's offices rather than "Main Justice." U.S. Attorneys who prosecute MEJA cases are required to bear the cost out of their own budgets — and prosecuting a crime that occurred in Iraq or Afghanistan will cost far more than a comparable case in the U.S. Attorney's home district. In Langston at least, the defendant's permanent residence in the district provided some rationale for assuming the cost of the prosecution. With Ali, though — a dual Canadian-Iraq citizen who has never resided in the United States — the Justice Department's approach almost ensures that no U.S. Attorney would be willing to bear the cost.
Assuming that DoJ did take a pass on Ali, this is hardly the first time it has turned its back on contractor crime. In January 2008, Human Rights First released Private Security Contractors at War: Ending the Culture of Impunity, a groundbreaking report documenting a long series of contractor crimes and an equally long history of DoJ inaction, and setting forth a comprehensive set of recommendations for ending the impunity with which private contractors have come to operate over the last several years. To date DoJ's only completed contractor prosecution under MEJA was the conviction in May 2007 of a DoD contractor who pled guilty to possession of child pornography in Baghdad. In the last several years — going back at least to the revelation in 2004 of contractor involvement in the Abu Ghraib abuses — more than two dozen other contractor cases reportedly have been referred for prosecution under MEJA, but DoJ has not proceeded in any of them.
At the core of Human Rights First's recommendations is that DoJ take the lead in aggressively investigating and prosecuting cases of violent private contractor crime abroad, with MEJA and the SMTJ as its principal jurisdictional vehicles. Regrettably though, through the tenures of three Attorneys General — John Ashcroft, Alberto Gonzales and now Michael Mukasey — there has been no progress, or even apparent interest, by DoJ in stepping up to these responsibilities.
It was largely for these reasons that Human Rights First also recommended that DoD implement its expanded court-martial authority to try private contractors in appropriate, limited circumstances. However, subjecting civilians — even military contractors — to court-martial jurisdiction is controversial and carries risks of abuse, and in most cases prosecution by civilian authorities is preferred.
Legal Implications of Court-Martialing Civilians
In his court-martial, Ali will be afforded the same rights that U.S. military personnel receive, including the right to appointed military defense counsel and to a speedy trial; protection against self-incrimination; and the presumption of innocence. This may not be enough. Courts-martial of civilians raise important constitutional and human rights issues.
The U.S. Supreme Court in Reid v. Covert, 354 U.S. 1 (1957), and other cases has held (albeit in the context of peacetime courts-martial initiated against the civilian dependants of military personnel) that the Constitution prohibits the prosecution of civilians by courts-martial because it would violate the right to a fair trial, including trial by jury. Indeed, under current rules, Ali's court-martial "jury" will be a military panel, which may convict and sentence him on the basis of a two-thirds majority vote. Notwithstanding Secretary Gates' implementing instructions, there have been no changes to the Rules for Courts-Martial to ameliorate such concerns.
Moreover, the UN Human Rights Committee (the body charged with responsibility to monitor state compliance with the International Covenant on Civil and Political Rights, ratified by the United States in 1992) has stated that military trials of civilians should occur only in exceptional circumstances and with full due process rights. Recent events in Pakistan and elsewhere provide a timely reminder of the potential for abuse when military courts displace the regular civilian courts in trying civilians.
Thus if Ali is convicted, the military's first prosecution of a civilian in more than thirty years inevitably will provide substantial legal arguments for an appeal. Even before the court-martial is completed — and perhaps before it is underway — the legality of Ali's detention and prosecution by military authorities may be collaterally challenged in U.S. federal courts.
The U.S. government's responsibility
When the U.S. (or any) government fields and directs personnel to implement national policy abroad, it is responsible for their conduct — even if they are private contractors rather than traditional military forces. When contractors commit serious violent offenses, the government is further responsible for providing effective mechanisms for criminal prosecution. This is especially true where, as in Iraq, the U.S. government officials imposed Coalition Provisional Authority Order No. 17, which confers presumptive immunity from Iraqi law upon international contractors working for Coalition government agencies or international organizations. It continues to be in force in Iraq largely because of the U.S. government's continuing behind-the-scenes influence with the Iraqi government.
There are now more U.S. private contractors working in Iraq than U.S. soldiers, sailors, airmen and Marines deployed there. But the United States has yet to implement effective mechanisms to ensure accountability for serious contractor crimes committed against local populations, U.S. military personnel or each other.
Until now, the commission of serious crimes by private contractors in Iraq and Afghanistan has amounted — for the contractors — in almost all cases to nothing more than poor career moves. Absent Secretary Gates' March directive, if Ali's case had followed the typical pattern, it could be expected that Ali — whether innocent or guilty — simply would have been fired and flown home, possibly with adverse impact on his security clearance (if he has one), but nothing else. And then he might well have returned a few months later, with another company.
As with so many of its responsibilities in Iraq, in prosecuting Ali the U.S. military is doing what it has been tasked to do, trying to impose some measure of greater accountability on private contractors — even though it may not be the best-positioned or most appropriate agency for this role. But it seems for now the only agency willing to do it. We can only wait and see whether the military's new authority survives judicial scrutiny.
If there is indeed substantial evidence to support the charges against Ali, he should of course be prosecuted. This court-martial, however, would not be occurring — indeed, it would not be necessary — if the Justice Department were doing its job with the tools it has to prosecute serious contractor crime abroad.
