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| Author: | Sharon Otterman |
|---|
May 19, 2004
A U.S. soldier who is charged with breaking the law can face one of five types of military justice proceedings, says Lee D. Schinasi, a law professor at the University of Miami School of Law and a former vice dean at the Army’s Judge Advocate General’s School in Charlottesville, Va. Two are administrative procedures, which do not involve a trial. Three are criminal proceedings, also known as courts-martial. Depending on the severity of the crime, a court-martial can carry a long prison sentence or even the death penalty. In the case of detainee abuse at Baghdad’s Abu Ghraib prison, seven low-ranking soldiers so far are expected to face courts-martial. The first, Specialist Jeremy Sivits, pled guilty to four charges May 19. Seven other soldiers who held supervisory roles have received administrative punishments in the case.
The Uniform Code of Military Justice (UCMJ), the congressional code of military criminal law applicable to all U.S. military members worldwide.
The first is called a letter of reprimand, which is issued by a commanding officer and goes into the soldier’s official file. The letter may or may not cause a solider to be relieved of duty. But in the long term, it is often career-ending for an officer, because “in the highly competitive military, it’s a stain on someone’s record that makes it almost impossible to get promoted,” Schinasi says.
The second is called a non-judicial, or Article 15 punishment, named after the section in the UCMJ that establishes the procedure. These penalties are issued directly by a commander, though a solider can request a trial by court-martial if he disagrees with the punishment. Penalties can include 30 days of detention, demotion, suspension from duty, extra duties, or fines.
Seven officers received letters of reprimand, and two have been relieved of their duties—including Janis Karpinski, the Army Reserve brigadier general who commanded the 800th Military Police Brigade that oversaw the Iraqi prison system. These soldiers may also face criminal proceedings, but none have been announced to date.
They are all called courts-martial—or military trials—but they vary depending on the severity of the offense. They are:
“Once the trial begins, it’s almost indistinguishable from a federal trial, except that everyone is wearing a uniform,” Schinasi says. The rules of evidence and procedure are nearly the same as in a federal court, and civilian lawyers can try cases if the defendant chooses to not use his court-appointed military defense attorney. As in a federal trial, there are two basic parts to the proceedings: findings, in which the judge or jury determines if the defendant is guilty or not guilty; and sentencing, in which the judge or jury determines what the punishment should be. That said, there are some procedures unique to military courts, such as the defendant’s ability to choose whether he wants his case heard before a judge or jury.
Defendants in courts-martial generally have the same rights as defendants in civilian courts, including the right to be presumed innocent until proven guilty; the right to an attorney; the right to a jury of his or her peers; and the right to speak in his or her own defense.
Before a general court-martial, the defendant undergoes a preliminary hearing and investigation similar to those that occur in a civilian grand jury proceeding. The military version, known as an Article 32 process, requires that an officer investigate the initial charges made against the defendant. The evidence is then presented at a hearing and a judge determines if there is sufficient evidence to move forward with the trial. Unlike civilian grand juries, which are often secret, these hearings are generally open. The accused is present and is permitted to speak in his own defense, Noone says.
In the Abu Ghraib case, Article 32 proceedings have begun into the cases of Graner, Davis, and Fredrick. The following charges are being investigated:
When this occurs, as happened in Sivits’ case, it is not enough for the defendant to simply state his guilt as he would in a federal court. In a court-martial, he must also answer the judge’s questions and explain the crime in his own words. This is called a “colloquy with the accused,” Schinasi says. Sivits became emotional when explaining his wrongdoing to the judge, breaking down in tears as he apologized for taking pictures of naked Iraqi prisoners being humiliated, according to press accounts of the proceedings. Sivits made a pre-trial agreement with the prosecution—in civilian terms, a plea bargain—to plead guilty in exchange for a reduced sentence.
In most cases, only two-thirds of the members have to agree. However, imposition of the death penalty requires a unanimous vote.
The conviction and sentence is first presented to the commanding officer who brought charges against the defendant. If that officer chooses, he can offer clemency to the convicted soldier and reduce his sentence. The next step would be to appeal the case to the U.S. Army Court of Criminal Appeals in Washington, D.C. From there, it would go to the U.S. Court of Appeals for the Armed Forces, also in Washington. Finally, cases can be appealed to the U.S. Supreme Court, if its justices agree to hear the case.
Yes, but generally not televised. In the Sivits case, proceedings were shown on closed-circuit television to reporters in a separate room in the building.
Yes, but as in civilian proceedings, his attorneys would first have to show that a fair trial is impossible in the jurisdiction where the crime took place. Some of the defendant’s lawyers in the Abu Ghraib case have said that the media spotlight on the trials and their political and military importance has made guaranteeing a fair trial in Iraq difficult. However, some military justice experts say that moving the trials out of Iraq might hurt the defendants, because military juries in Iraq might be more sympathetic to a defense based on extenuating circumstances.
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