USA PMC in AFG Faces Murder Charges...

[milnews.ca]

...linked to the shooting of an AFG national after an American social scientist was doused with gasoline and set afire (http://www.kansascity.com/news/breaking_news/story/882500.html) earlier this month. Moderators - couldn't find earlier reference through search, but feel free to move this if another thread is a better fit.

Contractor who shot Afghan stands trial
American shot Afghan dead when told of colleague's horrific burns
Quqnoos.com (AFG), 20 Nov 08
Article link (http://quqnoos.com/index.php?option=com_content&task=view&id=2082&Itemid=48)

An American security contractor who shot an Afghan man is standing trial for murder in America. The American is understood to have shot the man after hearing that the Afghan had injured a fellow contractor, reports say.

Don M. Ayala, 46 and Paula Loyd were accompanying an American foot patrol through an Afghan village near Kandahar on November 4. Afghan Abdul Salam threw a container of flammable liquid onto Loyd during the operation and was detained.

About ten minutes later, when Ayala was told that Loyd was badly burnt, he shot Salam dead, according to American soldiers who witnessed the scene.

Since leaving the US military, Ayala had guarded top Afghan and Iraqi VIPs. He had been working for BAE Systems since September 1.

It is unclear how Ayala was brought before the US District Court in Alexandria, Virginia.

The trial continues.

[kville79]

The fact that they're targeting HTT teams shows that the program is being very successful. I feel bad for the contractors, both the female social scientist and the man who shot her assailant. But that man acted on emotion, not logic. If the assailant was still alive he would be a valuable intelligence asset on finding the names and locations of those planning the attack and those observing and reporting on HTT team movements.

Not to mention that man must have known he was in the wrong, the assailant (as I read it) was already detained. I do hope the Jury recognizes the emotional duress the man was under and he probably wasn't thinking straight when he shot him.

[Ken White]

of figuring that nice law abiding Americans wouldn't do what was done -- and smarted off ex post pyro to the wrong guy.

Thus your hope:
...I do hope the Jury recognizes the emotional duress the man was under and he probably wasn't thinking straight when he shot him. is shared by me but is probably forlorn in this day and age -- unless there's a romance angle; that usually sways 'em... ;)

As for this:
"...If the assailant was still alive he would be a valuable intelligence asset on finding the names and locations of those planning the attack and those observing and reporting on HTT team movements.Perhaps but most likely not. He could've been acting alone on a whim or he could've been told what and where with no knowledge of names and locations.

People sometimes act illogically. That applies to bad guys and good guys and to most of us who fall in between.

[Ron Humphrey]

But a note of curiousity in context with the realities of life there versus here.

Had this been an Afghan official in the role of the HTT member who was burned and an Afghan security person. Wouldn't this have most likely been exactly the reaction you would have seen and would anyone in that area have felt that this was anything more than justice?

Not to be mis-understood as denying that things were done badly but rather trying to think about how differently those there might actually percieve such a set of events.

[120mm]

It's also possible that Mr. Ayala has a highly developed sense of "On".

I can think of several people I would go to prison or die for. Especially if they were set on fire, and their assailant were going to be scolded harshly and then put back into the "catch and release" terrorist program.

Of course, I've been on fire before, so this particular act has special repugnance for me.

[Featherock]

Does anyone know of any other PMCs, in Iraq or AFghanistan, who has been charged with murder? Is this a first?

How do Blackwater guys kill dozens of Iraqis at a traffic circle and not get charged with anything and this Ayala guy gets charged immediately?

Regardless, he did the wrong thing, big time, no doubt about it. We can sympathize and put ourselves in his shoes all we want. It doesn't change what he did. We can't operate by two sets of rules, the 'good' one and the 'conditional' one.

[BayonetBrant]

Does anyone know of any other PMCs, in Iraq or AFghanistan, who has been charged with murder? Is this a first?
Not the first.


How do Blackwater guys kill dozens of Iraqis at a traffic circle and not get charged with anything and this Ayala guy gets charged immediately?
Witnesses!


Oh, and the Blackwater guys were indicted after a lengthy investigation, but still not decided if it's going to trial, last I read.

[Entropy]

My understanding is this will be the first murder trial on the new MEIJA laws.

[Featherock]

My understanding is this will be the first murder trial on the new MEIJA laws.

Apparently that's correct, according to this AP story.

http://www.google.com/hostednews/ap/article/ALeqM5hM067vULxgQQZnSRtoCVH5C8pajAD94IUDH00

Looks like Ayala beat Blackwater to the punch.

[120mm]

Does anyone know of any other PMCs, in Iraq or AFghanistan, who has been charged with murder? Is this a first?

How do Blackwater guys kill dozens of Iraqis at a traffic circle and not get charged with anything and this Ayala guy gets charged immediately?

Regardless, he did the wrong thing, big time, no doubt about it. We can sympathize and put ourselves in his shoes all we want. It doesn't change what he did. We can't operate by two sets of rules, the 'good' one and the 'conditional' one.

While this response probably belongs in the cultural forum, I don't think he did the wrong thing. The "right" thing in this case is completely subjective and cultural, imo. Maybe it's a product of being raised in a demonstrably backwards and old-fashioned culture, but I approve of Ayala's actions on several levels.

Under most codes of honor or obligation, the right thing for Ayala to do would be to kill Lloyd's attacker. Of course, the right thing for Ayala also to do is to also present himself for punishment, and the right thing for the US government to do is to prosecute Ayala to the fullest extent of the law.

The only wrong I see here is in Ayala's failure to protect his charge, and the Afghan to throw the gas. And either of those things can be debated, as well.

While this may damage the COIN effort on the homefront, I don't see how this damages the COIN effort in Afghanistan.

[Featherock]

There's no "thinking" about it. The facts are the facts. What he did was against the law, pure and simple. An honor code is just that, a code, a highly subjective set of rules of conduct that different cultures define differently. An honor code is not the same thing as the rule of law as codified in instruments like the Geneva Conventions. For instance, a Marine wouldn't be tried in court for leaving behind a squad member, even though doing so would break a deeply held honor code among Marines (and other service branches, obviously).

While the law is subjective -- otherwise, why would we need lawyers (some would argue, rightly in a lot of cases, that lawyers do more to obfuscate and frustrate the law than they do interpreting it, the DOJ under Bush being a great example, e.g, Gitmo) -- the fact is all soldiers and contractors operating in a combat zone have to operate under the law, regardless of what the enemy does.

Does it hurt our COIN efforts? I would say yes. This specific incident? I don't know. This incident paired with other incidents like it (PMCs firing on civilians in Iraq, the Gitmo disaster) have a incredibly deleterious effect on COIN efforts and America's standing in the world.

[Ken White]

There's no "thinking" about it. The facts are the facts. What he did was against the law, pure and simple...Except we do not know all the facts, ergo some thinking is justified until such point as those fact are pretty conclusive. Thus far we have only reports that appear to be conclusive.
... the fact is all soldiers and contractors operating in a combat zone have to operate under the law, regardless of what the enemy does.I haven't seen anyone here arguing that point. The issue raised is that of a human reaction to a provocation in a war like environment. One can say that flawed reactions, types of provocation and the wartime environment are not excuses for a criminal act and that may be correct legally and even philosophically in the eyes of many but without greater knowledge of all the factors; all are just speculating. In such speculations, some will lean toward the rule of law; others toward the emotional quotient of the case at hand. No one is wrong.
Does it hurt our COIN efforts? I would say yes. This specific incident? I don't know. This incident paired with other incidents like it (PMCs firing on civilians in Iraq, the Gitmo disaster) have a incredibly deleterious effect on COIN efforts and America's standing in the world.I don't think your last sentence is correct. Change it to add "in the eyes of some." after 'world' and I think its more nearly correct. Those things may be trumpeted by anti-war types and nominal opponents or anti-US / anti-Bush types but the vast majority of the world doesn't really care.

Note that the 'PMCs in Iraq firing on civilians' factor is not one whit more deleterious than is or was such firing by US troops or by Iraqi forces other than in the eyes of many in the media and academe. Gitmo as disaster is an interesting trope. I can hardly wait to see how the new administration mitigates that 'disaster.' :D

[Featherock]

[QUOTE=Ken White;60630]Except we do not know all the facts, ergo some thinking is justified until such point as those fact are pretty conclusive.

True, we don't know all the facts. Have you seen the affidavit though? They interviewed a half dozen soldiers who were there and were pretty unequivocal about what they saw. The thing I don't understand is why this case is being handled so quickly when the DOJ under Bush has perfected the art of nullifying select parts of the U.S. Constitution and international law.

>In such speculations, some will lean toward the rule of law; others toward >the emotional quotient of the case at hand. No one is wrong.

Except Alaya. Under the law he's wrong. And the law is all we have.

>Those things may >be trumpeted by anti-war types and nominal opponents

Trumpeted by anti-war types and anti-Bush people, like, um, every member of the Supreme Court?

>Note that the 'PMCs in Iraq firing on civilians' factor is not one whit more >deleterious than is or was such firing by US troops or by Iraqi forces

No, it's not, I agree. I never said it was somehow worse for PMCs to kill civilians as it was for soldiers. It certainly doesn't matter a whole lot to the victims

>Gitmo as disaster is an interesting trope.

It's not a trope, unfortunately. It's not an academic debating point or a literary creation. It's a legal disaster, a humanitarian nightmare, and a big ol black spot on our national character.

>I can hardly wait to see how the new administration mitigates that >'disaster.'

I can't wait either. My guess is we, as in this country, will take the sly way out of that mess and quietly ship the detainees back to cells in their home countries, or third-party countries, where they will be someone else's problem.

[Ken White]

True, we don't know all the facts. Have you seen the affidavit though? They interviewed a half dozen soldiers who were there and were pretty unequivocal about what they saw.Saw that
... The thing I don't understand is why this case is being handled so quickly when the DOJ under Bush has perfected the art of nullifying select parts of the U.S. Constitution and international law.Until they get brought up short by the Courts. That's the pull of executive vs. Congress that goes on with all Admins; this one just pushed harder than most.

Still your point is understood -- that's why I think there's more here than is readily apparent. We'll see.

I said ""In such speculations, some will lean toward the rule of law; others toward the emotional quotient of the case at hand. No one is wrong."" Your response to that was:
Except Alaya. Under the law he's wrong. And the law is all we have.A. I don't think Ayala is here speculating. B. Your under the law statement is correct -- if it's proven he was wrong; guilty until proven innocent is not a good plan. C. The law is not all we have.
Trumpeted by anti-war types and anti-Bush people, like, um, every member of the Supreme Court?Every member? In any event when it gets to the 'trumpeted' part, that's not the case; the trumpeters are the excessively vocal :D.
It's not a trope, unfortunately.Sure it's a trope. It has downsides, no question, I've always thought it was a really dumb idea on several levels. Still, I think and my point was that the word 'disaster' is excessive. YMMV -- and obviously does. We can disagree on that as on many things.
...It's not an academic debating point or a literary creation. It's a legal disaster, a humanitarian nightmare, and a big ol black spot on our national character.A humanitarian nightmare? That's beyond excessive IMO. I've seen and participated in so many big ol' black spots on our national character that are essentially forgotten that you'll have to forgive me for not getting wrought, much less overwrought about yet another.
I can't wait either. My guess is we, as in this country, will take the sly way out of that mess and quietly ship the detainees back to cells in their home countries, or third-party countries, where they will be someone else's problem.If they follow through on the closing, I suspect you're correct. There are a very few for whom even such solutions will perhaps not be an option.

[Featherock]

I talked to a legal scholar this afternoon who specializes in law of armed conflict.

His take on why Ayala's case seems to be moving forward so quickly compared to the Blackwater case (apparently a grand jury has heard that case recently, but the results aren't yet known): Ayala's case has a "political overlay" that's all about sending a message to Karzai and the Iraqi government, at a particularly sensitive diplomatic moment (negotiating SOFA agreement with Iraq; Karzai upset about airstrikes and civilian deaths; a new administration coming in with the promise of more troops in Afghanistan).

The message is that we will take care of business and not allow contractors to get away with crimes committed in their countries. It's also a way to keep jurisdiction over such matters (we don't want our people tried in foreign courts). Pretty simple.

As a sidenote, Ayala is being prosecuted by DOJ under the 2000 MEJA act because it's the safer route than using the UCMJ (a court martial). No U.S. civilian has ever been prosecuted under the UCMJ because Constitutional issues (protections under 5th and 6th amendments). That is, it could successfully argued that court martialing this guy would be unconstitutional because he's a civilian, not a soldier. MEJA was designed to plug that gap and give the DOJ a way to charge civilians working for the military in a war zone.

That ends our legal lesson for the day.

[Ken White]

Don't totally agree with that rationale but it doesn't have to be my way to be right; makes sense from the domestic and international political standpoints.

You do understand that most of us here are or were not arguing that Ayala is innocent and / or that prosecution is unjust? No one's trying to subvert the law, all that most were doing was expressing some sympathy for his apparent action and the provocation that triggered it.

That is based, in my case at least, on having watched a number of forced non-responses to provocation and to discovering that people vary on how many times they can suppress an instinctive urge to resist or retaliate to extreme provocation. It would be nice if all people were perfect and could not be so overloaded with violence triggers that they finally override their training and sense of right and wrong and make a bad mistake. Unfortunately, no one is perfect. We all have different break points. Someone apparently found Ayala's.

[Rex Brynen]

The fact that they're targeting HTT teams shows that the program is being very successful. I feel bad for the contractors, both the female social scientist and the man who shot her assailant. But that man acted on emotion, not logic. If the assailant was still alive he would be a valuable intelligence asset on finding the names and locations of those planning the attack and those observing and reporting on HTT team movements.

While this is possible, my first guess would be a spontaneous reaction by a local angry at being spoken to, and questioned, by an adult woman to whom he wasn't closely related.

[120mm]

I talked to a legal scholar this afternoon who specializes in law of armed conflict.

His take on why Ayala's case seems to be moving forward so quickly compared to the Blackwater case (apparently a grand jury has heard that case recently, but the results aren't yet known): Ayala's case has a "political overlay" that's all about sending a message to Karzai and the Iraqi government, at a particularly sensitive diplomatic moment (negotiating SOFA agreement with Iraq; Karzai upset about airstrikes and civilian deaths; a new administration coming in with the promise of more troops in Afghanistan).

If this is the precedent, it's a bad one. If this was an Afghan on Afghan thing, I sincerely doubt ANY legal action would be taken. An Afghan would probably just thank Allah that the offended party didn't kill the attacker's extended family as well, imo. I think this will just come off as us pandering to them. They know that what Ayala did was right, and they also know we're punishing him to show them we're "serious". All it will do is reinforce the idea that The US is unpredictable and duplicitous. Expect the enemy to flip this against us in their I/O campaign.


The message is that we will take care of business and not allow contractors to get away with crimes committed in their countries. It's also a way to keep jurisdiction over such matters (we don't want our people tried in foreign courts). Pretty simple.

As a sidenote, Ayala is being prosecuted by DOJ under the 2000 MEJA act because it's the safer route than using the UCMJ (a court martial). No U.S. civilian has ever been prosecuted under the UCMJ because Constitutional issues (protections under 5th and 6th amendments). That is, it could successfully argued that court martialing this guy would be unconstitutional because he's a civilian, not a soldier. MEJA was designed to plug that gap and give the DOJ a way to charge civilians working for the military in a war zone.

That ends our legal lesson for the day.

I don't disagree with Ayala's prosecution for murder. That is the government's responsibility, under the law. It's just that for some of us, some of the time, honor > law. That even means that if I were the DOJ prosecutor, I would do my best to see that the maximum penalty be applied to Ayala. It would also mean I would completely and utterly approve, without reservation, Ayala's actions. I would also bear witness against him in court, as that too, is honorable.

After all, this "Rule of Law" is an artificial (almost exclusively Western) construct, which is more often than not applied unfairly and to the favor of the least honorable among us. It's fake, phoney, whatever you want to call it.

[jmm99]

The interplay between the UCMJ and MEJA is discussed here (posts # 13 & 15)

http://council.smallwarsjournal.com/showthread.php?t=5119

Where the PMC would be better off is a good question (a military jury vs. civilian jury).

First issue is what the client wants and what the prosecution will buy. If the client wants a plea bargain, some form of manslaughter seems likely.

If he wants to tough it out for whatever reason, then:

1. Defense counsel should buy a tape or DVD of Anatomy of a Murder and study it.

2. The badly burned lady must take the stand - since she is a res gestae witness, that should not be an issue.

3. The guy must testify and be as compelling as the 1LT (Ben Gazzara) in Anatomy.

4. Put on an expert witness on PTSD and "irresistible impulse" - to give the jury a logical hook.

If the jury buys it, the guy walks - that result is "jury nullification", where strict application of the law would not be just under the totality of circumstances.

[milnews.ca]

Glad to see a lot of good discussion here on this one...

Anyone charged is innocent until proven guilty, and we don't know all the facts until they come out in court (and maybe not even then), but if this is correctly paraphrased (http://www.google.com/hostednews/ap/article/ALeqM5hM067vULxgQQZnSRtoCVH5C8pajAD94IUDH00) from the court documents:

....Ayala helped subdue and arrest Salam, who was restrained and placed in plastic handcuffs, according to the affidavit. About 10 minutes later, after a soldier said Loyd had been badly burned, Ayala pointed a pistol at Salam's head and shot him dead, according to court records....
while I empathize with the rage he would have felt, it seems similar to a cop shooting a handcuffed suspect who wasn't threatening said cop.

I'm guessing if his hands were tied, it was because he was going to be handed over to some other authority. If not, I stand to be corrected. If so, this gives the prosecution a pretty strong case to start with. It'll be interesting to see what the defence's case will be....

[Uboat509]

There are few things I detest more than trying someone in the media. I am sick to death of people using whatever scraps the media gets to convict or exonerate someone, often before the investigation is complete, much less the trial. The Haditha Marines were all guilty. John Murtha told us so, except that they have all been acquitted since then. OOOPs. Damn that due process.

SFC W

[jmm99]

and agreed with our U-boat skipper as to cases tried by or from the media.

What the affidavit does do is affirm the proximate cause of the shooting as the lady's burns - the prosecution is stuck with that.


About 10 minutes later, after a soldier said Loyd had been badly burned, Ayala pointed a pistol at Salam's head and shot him dead, according to court records.

Loyd had second- and third-degree burns over 60 percent of her body.....

The photos of the burns - and the resultant scarring - are probably pretty bad. So, I'd use them in both plea bargaining and at trial. What other defense does the guy have, IF those are the facts ?

Would be better if perp #1 (the Afghan) had taken off and was shot in hot pursuit. But, we have to deal with the situation we have, not what we'd like to have.

A lot of this depends on the guy's prior history - is he a nice guy or not - and what added facts come up from the defense discovery of evidence before trial, which we probably will not hear about.

[MikeF]

I have not read the affidavit, but I'll throw some considerations out there that have not been addressed. These are factors we would look at with our own soldiers. I'm not advocating any verdict of guilty or not guilty just describing other factors that must be understood in context while we drink coffee in our comfortable air-conditioned homes while typing our thoughts in this blog.

1. Did the shooter perceive an imminent threat? According to our rules of engagement, one has the right to self-defense. The victim does not have to be armed at the time-remember his initial weapon was a can of gasoline. Had he been thoroughly searched as a suicide bomber or even for something as small as a keyless entry for a car that could have been used as a detonation device for an IED?

Rage aside, if the shooter honestly perceived that threat, then his action MAYBE justified IMHO. Remember, this is not a beat cop in downtown chicago-this is a war zone. The shooter did not rage and kill 10 civilians.

Or maybe he commited murder. I dunno, but if I think it's worth considering.

2. Does this incident hurt our COIN effort? It depends. For the local village, maybe not. Maybe the local villagers actually feel a bit safer now that a thug is dead. Maybe along with his facination with burning American anthropologist, he molest little boys and cuts off women's hands in extreme implementation of Shariah law. Maybe the world is a better place with him dead. Maybe not. We simply don't know. As far as the broader IO message, it depends on how the actions the USG and Afghan gov't take versus the Taliban/AQ media. Depends on the spin. Maybe the due process of a fair trial will verify that we live by the values that we preach.

As I stated above, I don't have an opinion just wanted to play Devil's Advocate to further discussion into an important issue. Again, I'm with Uboat; I think far too often we assume guilty until proven innocent.

v/r

Mike

[Marauder Doc]

What effect to local laws have on the actions of the PMC?

For example, would defending the honor of a woman be a protected act?

Just curious.

[milnews.ca]

This, from a statement today (3 Feb 09) from the United States Attorney's Office (http://www.usdoj.gov/usao/vae/Pressreleases/02-FebruaryPDFArchive/09/20090203ayalanr.html):

Don Michael Ayala, a civilian contractor stationed in Afghanistan, pleaded guilty today to voluntary manslaughter in U.S. District Court for the Eastern District of Virginia, in the death of Abdul Salam while on patrol in Chehel Gazi, Afghanistan, on November 4, 2008 .... The maximum sentence Ayala could receive is 15 years .... U.S. District Judge Claude M. Hilton set a sentencing date of May 8, 2009.