United States v. Ali
| Decision Date | 18 July 2012 |
| Docket Number | 12-0008/AR |
| Court | United States Court of Appeals, Armed Forces Court of Appeals |
| Parties | UNITED STATES, Appellee v. Mr. Alaa Mohammad ALI, Appellant Crim. App. No. 20080559 |
Argued April 5, 2012
Military Judge: Timothy Grammel.
For Appellant: Lieutenant Colonel Peter Kageleiry Jr. (argued) Colonel Patricia A. Ham, Lieutenant Colonel Imogene M Jamison, and Major Jacob D. Bashore (on brief).
For Appellee: Captain Chad M. Fisher (argued); Colonel Michael E Mulligan, Major Amber J. Roach, and Captain John D Riesenberg (on brief).
Amici Curiae for Appellant: John F. O'Connor, Esq., Michael J. Navarre, Esq., and Dwight H. Sullivan, Esq. (on brief) -- for the Air Force Appellate Defense Division. Captain Paul C. LeBlanc, JAGC, USN (on brief) -- for the Navy-Marine Corps Appellate Defense Division.
Amicus Curiae for Appellee: Jeffery C. Barnum (law student) (argued); Eric Schnapper, Esq. (supervising attorney) (on brief) -- for the University of Washington School of Law.
ERDMANN, J., delivered the opinion of the court, in which STUCKY and RYAN, JJ., joined. BAKER, C.J., and EFFRON, S.J., each filed a separate opinion concurring in part and in the result.
ERDMANN Judge.
Pursuant to his pleas, Mr. Alaa Mohammad Ali, a foreign national working as a civilian contractor in Iraq, was convicted by a military judge sitting as a general court-martial of making a false official statement, wrongful appropriation, and wrongfully endeavoring to impede an investigation, in violation of Articles 107, 121, and 134 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 921, 934 (2006). Ali was sentenced to five months of confinement. In accordance with a pretrial agreement, the convening authority approved a sentence of time served. The United States Army Court of Criminal Appeals (CCA) affirmed the findings and only so much of the sentence as included 115 days of confinement and ordered that Ali be credited with 115 days of confinement credit to be applied against his sentence. United States v. Ali, 70 M.J. 514, 521 (A. Ct. Crim. App. 2011).[1]
Prior to trial Ali filed a motion to dismiss, arguing that under the facts of this case Congress could not exercise military jurisdiction over him, but if the exercise was proper, the court-martial lacked jurisdiction under Article 2(a)(10), UCMJ. The military judge denied the motion holding that the congressional exercise of jurisdiction was constitutional and the court-martial had jurisdiction pursuant to Article 2(a)(10), UCMJ.[2] After Ali's conviction, his case was forwarded to the Army Judge Advocate General (JAG) for review under Article 69(a), UCMJ. The Army JAG subsequently forwarded Ali's case to the CCA for review of the jurisdictional issues. Direction for Review, United States v. Ali, No. 20080559 (A. Ct. Crim. App. filed Mar. 31, 2010). The CCA affirmed the military judge's jurisdictional determinations. Ali, 70 M.J. at 520.
We granted review to determine whether Ali falls within the scope of Article 2(a)(10) and, if so, whether this exercise of jurisdiction violates the Constitution.[3] We hold that Ali falls within the scope of Article 2(a)(10) and that the congressional exercise of jurisdiction, as applied to Ali, a non-United States citizen Iraqi national, subject to court-martial outside the United States during a contingency operation, does not violate the Constitution.
Mr. Ali was born in Baghdad and is an Iraqi citizen. Ali fled Iraq in 1991 and ultimately settled in Canada where he obtained Canadian citizenship in 1996. Under both Canadian and Iraqi law, Ali retained his Iraqi citizenship. In December 2007, Ali entered into an independent contractor agreement with L3 Communications, an American company, to provide linguist services in Iraq under L3's contract with the United States Army Intelligence and Security Command.[4] The contract stated that the work may take place in a combat zone or other dangerous environment but did not contain a provision notifying Ali that he was subject to the UCMJ.
After receiving predeployment training at Fort Benning, Georgia, Ali was assigned to serve as the interpreter for 1st Squad, 3rd Platoon, 170th Military Police Company, stationed in Hit, Iraq. 1st Squad was tasked with training and advising the Iraqi police in Hit. As an interpreter, Ali accompanied 1st Squad on its missions and served as the direct link between the squad and the Iraqi police officers. Ali wore the same clothing as the soldiers but was not issued a weapon. Initially Ali lived with the soldiers of 1st Squad but when the squad was moved to a different location, he lived with other interpreters serving with the 3rd Platoon. For administrative purposes Ali was supervised by the L3 Site Manager in Al Asad, Iraq, but for operational purposes he reported directly to Staff Sergeant Butler, squad leader for 1st Squad.
On February 23, 2008, Ali had a verbal altercation with another Iraqi interpreter, Mr. Al-Umarryi. During this altercation Al-Umarryi struck Ali in the back of the head with his fist. The incident was reported to Butler and while Ali was alone in Butler's room waiting for the squad leader to return, he took a knife off Butler's weapons belt without Butler's permission or knowledge. Ali later had another confrontation with Al-Umarryi which resulted in four cuts to Al-Umarryi's chest and a bloody nose for Ali.
On February 23, Ali was placed on restricted liberty which prohibited him from leaving Victory Base Complex and required that he check in with L3 twice a day. L3 was aware of this restriction. Ali violated the restriction and traveled to Al Asad. He was then placed in pretrial confinement on February 29. On March 27, charges were preferred against Ali and on April 9, 2008, his employment was terminated by L3. On May 10, the charges were referred to a general court-martial and on May 24, 2008, Ali's counsel filed a motion to dismiss for lack of jurisdiction.
In his ruling on Ali's motion to dismiss, the military judge found that jurisdiction existed over Ali under Article 2(a)(10), which provides for UCMJ jurisdiction "[i]n time of declared war or contingency operation, [over] persons serving with or accompanying an armed force in the field."[5]
In finding jurisdiction, the military judge held: Operation Iraqi Freedom (OIF) was a contingency operation as defined by Congress in 10 U.S.C. § 101(a)(13) (2006); Ali was a "person" as that term is used in the statute; Ali was "serving with or accompanying an armed force" because he "served as an interpreter on every mission the squad went on" and was an "integral" and "necessary part of the team;" and, Ali was serving "in the field" for purposes of Article 2(a)(10), because the area of Hit was an area of "actual fighting."
In finding jurisdiction over Ali, the military judge focused on Ali's status at the time of trial and again held that he was a person accompanying an armed force in the field during a contingency operation. Citing Perlstein v. United States, 151 F.2d 167, 169-70 (3d Cir. 1945), the military judge rejected Ali's argument that there was no jurisdiction because L3 had terminated his employment prior to the referral of charges holding that "[Ali's] relationship with his civilian employer is not determinative."[6]
The military judge also rejected Ali's argument that the Government could not exercise jurisdiction because he was not on notice that he was subject to the UCMJ. The military judge held that while there was no requirement that Ali be notified that he was subject to the UCMJ, Ali had, in any event, been notified that he was subject to the UCMJ.[7]
After finding jurisdiction over Ali under the terms of Article 2(a)(10), UCMJ, the military judge went on to review "whether Congress has the power, under the United States Constitution, to extend military jurisdiction as far as it did to reach the accused." The military judge held that the exercise of court-martial jurisdiction over Ali, "under the facts of this case, " was constitutional pursuant to art. 1, § 8, cl. 14 of the United States Constitution (). Addressing Ali's argument that he was denied his Fifth Amendment right to presentment or indictment of a grand jury, the military judge explained "[b]ecause this is a case arising in the land or naval forces, the Fifth Amendment explicitly states that the accused has no such right at this court-martial."
Following Ali's conviction, the Army JAG sent Ali's case to the CCA for review under Article 69, UCMJ. Before the CCA Ali argued that "Congress exceeded the scope of its legislative authority when it amended the UCMJ to extend court-martial jurisdiction to reach civilians during contingency operations and thereby deprived him of the due process protections of the Fifth and Sixth Amendments to the United States Constitution." Ali, 70 M.J. at 517.
The CCA first evaluated the statutory application of Article 2(a)(10) and agreed with the military judge that "appellant and his offenses fall squarely within the jurisdictional language of Article 2(a)(10)." Id. at 518.
In its constitutional analysis, the CCA found that Article 2(a)(10) was appropriately limited by the requirements that there must be a declared war or contingency operation and that the person must be serving with or accompanying the force in the field. Id. at 520.
These two requirements, when applied in conjunction with the temporal requirement that either a declared state of war or a contingency operation be in existence, ensure that the exercise...
To continue reading
Request your trial