IRAQ: Military Justice

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How does the military justice system work?

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.

What determines the rules of these procedures?

The Uniform Code of Military Justice (UCMJ), the congressional code of military criminal law applicable to all U.S. military members worldwide.

What are the two types of administrative justice?

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.

What administrative punishments were given in the Abu Ghraib case?

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.

What are the three types of criminal justice proceedings?

They are all called courts-martial—or military trials—but they vary depending on the severity of the offense. They are:

• General court-martial. This is for felony-level offenses. The accused can choose if he wants a military judge alone to preside over his trial, or a judge and a jury of at least five members. The jury members can either be all military officers or a combination of officers and enlisted personnel. Three of the four soldiers to be brought up on charges so far in the Abu Ghraib abuses—Sergeant Javal Davis, Staff Sergeant Ivan Frederick, and Specialist Charles Graner—were arraigned May 19 as part of a general courts-martial. The soldiers are reportedly facing maximum sentences of between seven and 24.5 years.
• Special court-martial. This is the military equivalent of a civilian misdemeanor court. It’s used for less serious cases and can be run by a judge alone, or by a judge and a jury of at least three members. Specialist Sivits, who pled guilty May 19 to charges of maltreatment of detainees, dereliction of duty, and cruelty related to his role in the Abu Ghraib abuses, faced a special court-martial. He received the maximum sentence permissible in this type of trial: one year in prison, demotion to the rank of private, and a bad conduct discharge from the Army.
• Summary court-martial. This is meant for minor offenses and is presided over by one commissioned officer. The officer investigates the crime and decides whether the accused is guilty. This procedure is used rarely, because the punishments it can give are so minimal that they are generally imposed administratively, says Michael F. Noone, a military law expert at Catholic University’s Columbus School of Law.

How does a court-martial work?

“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.

What other rights do the accused have?

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.

What’s the main procedural difference between a general and special court-martial?

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:

• Against Graner, seven charges, including cruelty, maltreatment of detainees, dereliction of duty, assault, indecent acts, and obstruction of justice.
• Against Davis, five charges: maltreatment of detainees, conspiracy to maltreat, dereliction of duty, assault, and lying in an official statement.
• Against Fredrick, five charges: maltreatment of detainees, conspiracy to maltreat, dereliction of duty, assault, and indecency.

What happens if a defendant pleads guilty?

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.

Does a conviction or sentencing require a unanimous decision by the jury?

In most cases, only two-thirds of the members have to agree. However, imposition of the death penalty requires a unanimous vote.

What are some other differences between courts-martial and civilian trials?

• There are no mandatory minimum sentences in military trials. The judge or jury can decide to impose no punishment.
• Unlike in civilian courts, juries in military trials are selected by the local U.S. military commander. In the Baghdad trials, that will be Lieutenant General Thomas Metz, according to The Wall Street Journal. Metz commands the U.S. Army’s III Corps in Iraq.

What’s the appeals process?

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.

Are courts-martial open to the public?

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.

Can the defendant request that the case be moved to another jurisdiction?

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.