The No Man has sent me a UPI report indicating that “Alaa ‘Alex’ Mohammad Ali is scheduled to be arraigned Thursday at the Camp Victory courthouse in Iraq on a charge of aggravated assault for allegedly stabbing another contractor, the U.S. military said in a news release.”

Jurist has a lengthy commentary on the Ali case by Kevin Lanigan, the Director of Human Rights First’s Law and Security Program. Here’s a link. The piece says that the CA referred the case to a GCM on 11 May.

I stumbled over this last night, and what a night of reading it was. This 1997 memo from the Overseas Jurisdiction Advisory Committee (OJAC) of the DoD General Counsel’s Office is a fascinating piece of history on the first proposed amendment to Art. 2(a)(10), which until tonight I never knew existed. The memo’s authors included many uniformed judge advocates that our readers will know, including, Brig. Gen. John Cooke, USA, CAPT Richard Schiff, USN, Col. Charles Trant, USA, and then Col. Robert E. Reed, USA.

The bottom line recommendation of the committee was to amend Art. 2(a)(10) to include civilians under the UCMJ in times of declared contingency operations. Where have I seen that?

But, the devil is in the details. The Committee had the following to say about which contingency operations and personnel should fall within their proposed amendment:

The committee believes that creation of a “contingency operation” by operation of law under section 101(a) (13) (B) is not sufficiently precise to limit application of new Article 2(a) (13) to the areas affected by the contingency operation or to give clear notice to the personnel concerned. Second, the committee’s recommendation requires SecDef to also designate the places outside the United States where civilians supporting the contingency operation will be subject to court-martial jurisdiction under new Article 2(a) (13). This will permit the Secretary the flexibility to include civilians participating in the contingency operation in the place that is the objective of the contingency operation, and also those directly supporting the contingency operation in other nearby places. However, this provision will also protect civilians at installations far removed from the site of the contingency operation, even though their work may have some connection to that operation.

In case you were wondering, the current conflicts in Iraq and Afghanistan fall under 10 U.S.C. 101(a)(13)(B). See Major Karl Kuhn, Field Manual (FM) 3-100.21, Contractors on the Battlefield, Supersedes FM 100-21, Army Lawyer, at 137 (Jan. 2004). Interestingly, one rationale for this distinction was taken from an article by Major Susan Gibson titled “Lack of Extraterritorial Jurisdiction Over Civilians: A New Look at an Old Problem.” The Committee wrote:

Major Gibson emphasizes that the exercise of military jurisdiction in [only 10 USC 101(a)(13)(A) contingency operations] would be limited in scope and time: few civilians would be covered and contingency operations are, by definition, of limited duration.

The Memo contains lots of other great perspectives about contractors on the battlefield. I’ll post anything else that I find of interest. How did I miss this before?

An update on the case of Alaa Mohammad Ali, the civilian contractor charged under the UCMJ with aggravated assault: according to Reuters, the Article 32 hearing was convened (and apparently completed) today:

BAGHDAD (Reuters) – The U.S. military held a pre-trial hearing on Tuesday for an interpreter accused of a stabbing in Iraq, the first attempt to apply military law to civilian contractors working for U.S. forces in Iraq.

… [Ali's] pre-trial hearing took place in a courtroom at a U.S. base in Baghdad with witnesses who were unable to be present testifying by video link, the military said in a statement.

The International Herald Tribune is reporting, here, that the Art. 32 Officer granted delay in the first civilian contractor employee amended Art. 2(a)(10), UCMJ case. Thus, for those waiting for the first civilian Art. 32 since Vietnam . . . you’ll just have to wait another __ for United States v. Ali.

NIMJ’s web site notes this Jurist commentary by Professor Vic Hansen about United States v. Ali, the potential court-martial case of a civilian contractor in Iraq.

Here is a link to a U.S. News & World Report article providing in-depth coverage of the Ali case

The University of Toledo Law Review just published a student comment on the expanstion of court-martial jurisdiction over civilian contractors. Ian Kierpaul, Comment: The Mad Scramble of Congress, Lawyers, and Law Students after Abu Ghraib: The Rush to Bring Private Military Contractors to Justice, 39 U. Tol. L. Rev. 407 (2008).

Kierpaul is critical of the jurisdictional expansion: “The use of court-martial is now a reality and one that must be guarded against. The Founders thought it dangerous and it is questionable if a military panel is capable of effectively punishing private military contractors. Congress, however, because of the mad scramble, failed to adequately address those issues.” Id. at 427.

He proposes a “two-pronged approach” to establishing a legal regime to govern civilians accompanying the military abroad. Id. at 438. “First, Congress should pass a law stating that any private military contractor that does business with the United States consents to the jurisdiction of U.S. law and courts.” Id. at 438-39. “Second, Congress should pass a law requiring certain hiring, training, and operational standards before a private military contractor may qualify for a contract, thus creating a registration system.” Id. at 439. He also suggests the “establishment of federal courts overseas along with a special prosecutor and FBI office.” Id. at 440. He would also “require the levying of automatic fines against the company that employed” any private military contractor convicted of an offense. Id. at 441.

Apart from practicality concerns, Kierpaul’s proposed solutions do not appear to address the question of jurisdiction over U.S. civilian employees abroad.

Here’s a link to a New York Times article with additional information about the military justice prosecution of a civilian contractor in Iraq — a story that this blog broke on Wednesday.

I think we may have scooped the world on this one, but the Army has charged a civilian contractor for the first time under the amended Art. 2(a)(10), UCMJ. The charge sheet is available here, brought to you by CAAFlog.com.

Based on the information I have, apparently DoD could not refer the case to DOJ because the contractor is a Canadian national and his victim was a non-US national. Though I don’t know the details, it is curious that the offense was committed at Contingency Outpost 4 in Iraq, but Special Maritime and Territorial jurisdiction wasn’t considered . . . or maybe it was.

Anyone else think that the exchanges between DoD and DoJ that are part of the preferral process under the new SecDef withholding memo, available here, are similar to Art. 34 advice and should be turned over to the defense–or at least to military justice bloggers?

‘Tis the season for Art. 2(a)(10) publications. This article, by Kara Sacilotto, a partner at Wiley Rein, is titled Jumping the (Un)Constitutional Gun” Constitutional Questions in the Application of the UCMJ to Contractors, 37 Pub. Contract. L. J. 179 (Winter 2008). I’ll try to get a link to an electronic version from the ABA later today. This is another article published as a result of the 2007 ABA conference session on the application of the UCMJ to civilian contractors.

With another article comes No Man’s continued stream of BZs for another good article on this topic, but again an issue with the conclusions in the article—which is not to say they are poorly reasoned, I just disagree. First, I should note that I wholeheartedly agree with her conclusion that MEJA is “arguably preferable for crimes committed overseas by civilian contractors,” though I would omit the arguable. However, Ms. Sacilotto references SecDef’s withholding memo that was still in draft at the time of her article and we discussed recently, memo available here. She states, “If DoD rejects the JSC’s recommendations and permits application of the UCMJ for offenses committed within the United States, the Court may be more likely to find that Congress went too far.”

My disagreement with that conclusion is with the assumed scope of SecDef’s Art. 22, UCMJ withholding power. SecDef cannot restrict the class of persons upon which the UCMJ can be applied. SecDef can only withhold to itself commanders’ ability to exercise that power. The ability to prosecute contractors “serving with or accompanying an armed force in the field” during “contingency operations” still resides in SecDef pursuant to the congressional grant in Art. 2(a)(10). Thus, if an attack on Art. 2(a)(10) as amended is a facial challenge, SecDef’s withholding memorandum has no effect on the challenge. An as applied challenge, would also be unaffected by the memo because the memo only affects who may prosecute a particular individual, not if the individual may be prosecuted under the UCMJ.

I think that a decent argument can be made that the commonly understood, and generally accepted, meaning of the terms of the statute may be at odds with the construction that Ms. Sacilotto states would allow the courts to narrowly construe the statute to make it constitutionally acceptable. Since Congress, via Sen. Graham the drafter of the provision, was well aware of these definitions, one would think they would apply to the statute. But, I will let our readers draw their own conclusions about whether the terms of the statute can be constitutionally construed . . . and I just don’t have time to pull all the research cited in the article (at 192-199, 210-12 and accompanying footnotes).