WASHINGTON — Iraqi-born translator Alaa "Alex" Ali never served in the U.S. military, but the Army still tried him and put him in jail.
Now the amendment that made Ali's military prosecution possible, authored by Sen. Lindsey Graham, R-S.C., could be one step closer to Supreme Court review. Whatever happens next will affect myriad U.S. contractors still working in Iraq and Afghanistan.
"It's a significant case, in that it's the first time a civilian has been tried in a regular court-martial since the Vietnam War," lawyer Michael J. Navarre said Friday.
On Thursday, in a traveling session at the University of Washington School of Law, the military's top appellate court wrestled with the Ali case and the tricky questions it raises about military authority over civilians. The sharp give-and-take left some observers thinking that this case might go beyond the military appeals court.
"It makes a great legal issue," Navarre said, while cautioning that "practically speaking" the military prosecution of civilians may still be too infrequent to compel Supreme Court action.
The Defense Department employed 155,000 contractors in Iraq and Afghanistan as of last spring, according to the Congressional Research Service.
Navarre has represented civilian contractors potentially subject to military prosecution under Graham's 2006 amendment to the Uniform Code of Military Justice. He also co-authored a friend-of-the-court brief that sides with Ali.
On the other side stands the U.S. military, which counters that Ali was effectively a soldier and therefore reasonably subject to court-martial.
"He was deeply embedded with the armed forces in an area of actual fighting," Army Capt. John D. Riesenberg declared in a court brief. "He wore the same uniform, ate the same food, slept in the same tents and faced the same constant dangers from the enemy."
In time, Ali became the first — and so far only — civilian tried by a military court since Graham's amendment was adopted.
Born in Baghdad, Ali moved to Canada in 1992 and became a joint citizen of Iraq and Canada. In 2007, he joined L-3 Communications, a U.S. defense contractor, as an interpreter. By early 2008, he was placed with the U.S. 170th Military Police Company near the Iraqi town of Hit.
"Without Mr. Ali, or another interpreter, the squad could not perform its mission to train and advise Iraqi police," Ali's appellate attorney, Lt. Col. Peter Kageleiry Jr., wrote in a brief.
After a fight with another interpreter, Ali pleaded guilty in June 2008 to charges that included obstructing justice and lying to investigators. He was locked up for 115 days.
The legal question facing the four civilian judges on the U.S. Court of Appeals for the Armed Forces who met Thursday is whether the military had a right to try Ali. Lawyer Mike Hanzel, observing the "packed house" for the military law blog CAAFlog, reported that both sides received sharp questioning.
Civilians who accompany the armed forces closely during wartime have long been subject to military discipline, in part because the combat environment made civilian justice infeasible, but some key court decisions have limited the military's reach.
In a 1955 case that involved a former Air Force enlisted man who was taken from his home in Pittsburgh back to South Korea, the Supreme Court ruled that civilians couldn't face courts-martial for crimes allegedly committed while they were in the military.
Separately, a 1970 court decision that involved an American civilian accused of theft in South Vietnam limited the military's jurisdiction over civilians to times of war formally declared by Congress.
The last time that Congress declared war was in 1941.
After reports of abuses by U.S. contractors in Iraq and Afghanistan, Graham authored the 2006 amendment, which extended military court-martial jurisdiction to civilians who were working in a "contingency operation," such as the undeclared Iraq and Afghanistan wars.
Graham wasn't available Friday, a spokesman said, but in a 2008 news article, his spokesman Kevin Bishop explained, "There were concerns that contractors were operating in a somewhat lawless environment."
Skeptics note that military courts offer defendants fewer protections than those granted in civilian courts; military verdicts, for instance, need not be unanimous. They observe, as well, that it's now relatively easy to remove individuals from the battlefield for civilian trial.
Army attorneys stick to their guns.
"Congress appropriately decided that those that live, work, face the enemy and, in some cases, die together should all face the same (military legal) code," Riesenberg wrote for the government.
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