Friday, January 02, 2009

Top 10 military justice stories of 2008 -- #2: The first court-martial trial and conviction of a civilian since the Vietnam War

Let me start by stating the obvious: the No Man thinks this should be the #1 military justice story of 2008. I certainly agree that it's a huge story. A silver medal is hardly a badge of shame. But even following the successful prosecution of Alaa Mohammad Ali, court-martial cases brought against civilians will likely remain rare. And given that rarity, I don't think this story rises to the level of the most significant of the year.

Having noted Navarre, M.J.'s dissent, let's move onto substantive matters.

In 1968, Mr. Raymond G. Averette was a civilian contractor in Vietnam, where he worked for Pacific Architects and Engineers, Incorporated, and supervised a motor pool for the United States Army. See generally United States v. Averette, 40 C.M.R. 891 (A.C.M.R.), rev'd, 19 C.M.A. 363, 41 C.M.R. 363 (1970). He was charged with and, contrary to his pleas, convicted of "conspiracy to commit larceny of thirty-six thousand batteries and attempted larceny of the same and was sentenced to be confined at hard labor for one year and to pay a fine of $2,000.00, with provision for additional confinement not to exceed one year until said fine is paid. The convening authority approved the sentence." Id. at 891. The Army Court of Military Review rejected a jurisdictional challenge to his prosecution by court-martial, upheld the findings of guilty to the two charges of which he was convicted while tinkering a bit with the supporting specifications, and upheld the year of confinement while reducing the fine to $500. CMA reversed, concluding that Article 2(10) did not provide jurisdiction to prosecute a civilian accompanying U.S. forces in the field unless Congress had declared war.

Thirty-six years later, Congress would revisit and expand Article 2(10). The John Warner National Defense Authorization Act for Fiscal Year 2007 amended Article 2(10) to authorize courts-martial of civilians accompanying the military in the field in time of "declared war or a contingency operation." Pub. L. No. 109-364, Div. A, Title V, §552, 120 Stat. 2083, 2217 (2006) (emphasis added). Professor Geoffrey S. Corn observes that the amendment was "[r]eportedly inserted by Senator Lindsay Graham of South Carolina." Professor Corn also observes, "How this amendment will be implemented by the armed forces, and whether it will withstand constitutional scrutiny in all respects, are two unanswered questions." 2008 saw the first baby steps toward answers to those two key questions.

On 2 April 2008, as some media outlets acknowledged, the No Man was the first to break the news that a civilian contractor in Iraq had been charged under the expanded Article 2(10). The accused, Alaa Mohammad Ali, was a joint Canadian-Iraqi citizen charged with assault with a dangerous weapon arising from a stabbing at Contingency Outpost 4, Iraq, in February 2008.

On 22 June 2008, according to a Multi-National Corps - Iraq press release, Mr. Ali appeared at a court-martial and "pleaded guilty to wrongful appropriation of a knife owned by a U.S. Soldier; obstruction of justice for wrongfully disposing of the knife after it was used in a fight with another interpreter; and making a false official statement to military investigators. A military judge sentenced Mr. Ali to five months confinement."

Mr. Ali's case raised a number of intriguing jurisdictional issues. But his sentence was less than the quantum necessary to qualify for Article 66 review, meaning he had no right to judicial appellate review absent the Judge Advocate General of the Army's referral of the case to ACCA. Mr. Ali unsuccessfully sought a writ from ACCA and then filed a writ appeal at CAAF. Here's a copy of his brief in support.

CAAF ultimately summarily denied the writ appeal. Ali v. Austin, __ M.J. ___, Misc. No. 09-8001/AR (C.A.A.F. Nov. 5, 2008) (summary disposition). It's still possible that the Judge Advocate General of the Army could refer the case to ACCA for review under Article 69(d) either before or after processing an Article 69 appeal. Unless he does so, the interesting jurisdictional challenges that Mr. Ali's counsel raised in his writ appeal will lie dormant, waiting to be invoked in the next inevitable prosecution of a civilian accompanying the U.S. military in Iraq or Afghanistan.


Dew_Process said...

DISCLAIMER: I had some "behind the scenes" involvement with the Ali case.

The pretrial agreement is the key here, and I have not seen it. While individual parties cannot "agree" to confer jurisdiction, and there was a very significant element of duress present, viz., the pretrial confinement of Ali, and the pending aggravated assault [stabbing] charge, without being able to focus on the "give and take" in the PTA, much remains speculative.

But, while Ali may not have received "extraordinary" relief, I don't believe that his "case" is over. Even if the Army TJAG does not submit the case to the ACCA under Article 69, he can of course contest the jurisdiction in federal court, as in personam jurisdiction is the one thing that the Supremes agree can be challenged collaterally in federal court.

Of note, the MJ had ordered a deposition of a witness that the prosecution did not want to depose, and ultimately, that's what generated the favorable PTA.

I'm going to have to side with No Man on this - Haditha is a story for sure, but simply because its drug on forever, doesn't make it the # 1 MilJus "event" of the year.

Just my 2 cents....

Anonymous said...

Well I guesd it depends on whether you are lookig for the #1 legal story or the #1 story.

Cloudesley Shovell said...

The Army JAG ought to certify the question of jurisdiction up to ACCA and CAAF (1) because it's an important legal issue that ought to be tested in the courts, and (2) for the entertainment value.

Also, how can statements made by civilians be "official" and "in the line of duty" for purposes of Art. 107? It would be interesting to read the plea colloquoy on that one. Art. 107 has already been stretched beyond its limits (since it's a useful catchall offense when the gov't can't prove any "real" crime.) Holding that civilians can violate Art. 107 would truly put a nail in the coffin of strictly construing criminal statutes against the gov't and the rule of lenity, at least as far as Art. 107 is concerned.

Dew_Process said...

Admiral - I agree completely. And, CAAF should have granted the writ appeal, especially in light of Munaf v. Geren, decided by the Supremes last June.

Or, why weren't Munaf and Omar prosecuted via Military Commission, or Occupation Court?

Why didn't the Army court-martial the Blackwater guards versus "letting" them get indicted by the Feds?

The Army TJAG should forward the case to the ACCA if for no other reason than to avoid another Watada-type bashing.

And, as to Art. 107-style "offenses," the Army has a new trick - prosecuting "false statements" as Article 133, offenses, arguing that there's no requirement that the statement be "official" that any false statement by an officer, unofficial, off-duty, etc., is encompassed by Art. 133's reach.