Alright, I got it, a cheesy title, but the recent CAAF decision in U.S. v. Ali provides an opportunity to take a look at Article 2; specifically 2(a)(10) and the authority to try “in a time of declared war or contingency operation, persons serving with or accompanying an armed force in the field.”
A brief background: Mr. Ali (a Canadian/Iraqi) was hired by a contractor who provided interpreters to accompany U.S. forces in Iraq. In February of 2008, what started as a verbal altercation between Ali and another interpreter turned physical when Ali took a knife to the other interpreter’s chest resulting in four cuts to the other interpreter. For his part, Ali ended up with a bloody nose. Ali was immediately placed in pretrial confinement and was court-martialed. Jurisdiction was based on Article 2(a)(10). Both the trial judge and ACCA determined that jurisdiction over Ali was proper under Article 2(a)(10). At CAAF, Ali renewed his argument that: 1) he does not fall within the provisions of 2(a)(10) and 2) exercising jurisdiction over him violated his Fifth and Sixth Amendment rights.
To save you from the suspense, CAAF ruled…………..
that the court-martial had jurisdiction over Ali under the provisions of Article 2(a)(10), and that the application of 2(a)(10) to Ali did not violate the Constitution “under the circumstances of this case.”
The last six words of the above sentence seem to indicate that this result may be quite narrow and limited to the facts of this particular case. First, looking to the issue of jurisdiction under 2(a)(10), the Ali opinion reminds us that there are three prerequisites that must be met for courts-martial jurisdiction to vest: 1) jurisdiction over the offense, 2) jurisdiction over the accused, and 3) a properly convened and composed court-martial.
The court stated that Ali does not contest the finding that Operation Iraqi Freedom was a contingency operation. Ali’s argument centered on the second prong of the jurisdiction test where he argued that the terms “accompanying” and “serving with” are not defined in the MCM, Art. 2, or case law; thus ambiguous. Ali urged the court to look to the Military Extraterritorial Jurisdiction Act (MEJA) and the North Atlantic Treaty Organization Status of Forces Agreement (NATO SOFA), as both MEJA and the NATO SOFA define those terms and exclude host country nationals from their jurisdiction. However, the court noted that the phrase “persons serving with or accompanying an armed force” was addressed in U.S. v. Burney, 6 C.M.A. 776. “The test is whether the accused has moved with a military operation and whether his presence with the armed force was not merely incidental, but directly connected with, or dependent upon, the activities of the armed force or its personnel.”
Additionally, the court pointed out that an accused may be considered to be accompanying or serving with an armed force even though he is not directly employed by that armed force or the Government, “but instead works for a contractor engaged on a military project.” Thus the court looked to the facts to determine if Ali was “serving with” or “accompanying the force.” What those facts revealed was that Ali was “virtually indistinguishable from the troops serving in 1st Squad and he faced the same daily routines and threats as they did.” Ali was fully embedded with his unit, he wore a “U.S. Army Tape” and unit patch on his uniform, as well as body armor and a helmet. He lived in a combat outpost, and received mission orders from the squad leader, to whom, for operational purposes, he also reported. As such, Ali was both serving with and accompanying the force in the field. Additionally, the court found that in the least, Ali continued to accompany the force while awaiting trial thereby satisfying the second prong of the three part jurisdiction test.
Turning to the Constitutional claims made by Ali, the court summed up the issue by saying that “Ali must show that he was entitled to Fifth and Sixth Amendment protections and that, under the facts of the this case, these protections were violated when he was subjected to military jurisdiction.” The bottom line here is that since Ali, a noncitizen, lacked, and never developed, “substantial connections” with the United States, no precedent exists that mandates conferring upon him Fifth and Sixth Amendment rights. The court further stated that “whatever rights Appellant had were met through the court-martial process.”
So what does this all mean? Well, it means in this case with these facts that Ali was subject to the code by operation of Article 2(a)(10) and properly court-martialed for the offenses stemming from his assault of another interpreter. However, the prosecution of civilians who are accompanying or serving with the armed forces is a delicate and factually dependent undertaking. For instance, AR 27-10 Chapter 27 para. 27-2(d) does not apply Article 2(a)(10) to the prosecution of host nation nationals like Ali (“jurisdiction under this chapter applies to third country nationals serving with or accompanying the force in the field, but does not apply to nationals or permanent residents of the country in which an offense is committed because jurisdiction will reside with the host country”). So when considering a prosecution via court-martial of a civilian who is accompanying or serving with the forces, be sure to first consult and properly coordinate with DOJ officials who may have jurisdiction under MEJA, and when a foreign national, is involved coordination must also be made with the Department of State.
The full opinion can be found here: http://www.armfor.uscourts.gov/newcaaf/opinions/2011SepTerm/12-0008.pdf, and for further analysis and opinion please see Steve Vladeck’s article at: http://www.lawfareblog.com/2012/07/analysis-of-caaf-decision-in-ali/
MAJ Jeremy W. Steward
Criminal Law Dept.