USA PMC in AFG Faces Murder Charges...

[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.'

[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 .

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.

[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/...ead.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 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....