Backgrounder: U.S. Military Courts
On May 20 the first of seven U.S. soldiers facing charges for the abuse of
prisoners at the Abu Ghraib prison in Iraq was sentenced to one year in military
prison, discharge from the military, and a reduction in rank. The trial and
sentencing of Army Specialist Jeremy Sivits was conducted under legal procedures
for addressing criminal offenses committed by those in the military.
Although the U.S. military's legal process exists independently from U.S.
civilian/criminal law and courts, a closer look at military courts demonstrates
that they are very similar to civilian courts.
"The trial process in the Military is almost identical to the trial you would
find in a U.S. civilian court," said Judge Eugene R. Sullivan, retired chief
judge of the U.S. Court of Appeals for the Armed Forces. "The process -- the
opening statements, the right to cross examination, the right to confront your
accusers, and the instructions from the judge-- are almost identical."
Military courts are guided by the Uniform Code of Military Justice (UCMJ), which
lists criminal offenses that may be tried by the court. Offenses include serious
crimes such as murder and assault, as well as military-specific crimes such as
failure to obey an order from a superior officer.
The term "court-martial" refers to the investigation, trial and punishment of
members of the armed forces accused of breaking the law. Three types of
courts-martial exist: summary, special and general, and are applied depending on
the severity of the crime committed.
A summary court-martial is reserved for lower-ranking military personnel charged
with minor offenses. Punishment is limited to no more than 30 days confinement,
loss of pay or reduction in rank.
A special court-martial addresses misdemeanors and can apply punishments
including jail time, loss of pay and discharge from the military. Soldiers being
tried by special courts-martial have a limited right to a small jury of three
members of the military chosen by senior commanders.
Army Specialist Sivits was tried and convicted by a special court-martial in the
Abu Ghraib prison scandal due to his limited involvement and cooperation with
authorities. Defendants in a military trial have a right to plea bargain --
agree to a lesser sentence in exchange for cooperating with authorities -- just
as in the civilian system.
Those charged with the most serious crimes face a general court-martial.
Six of the seven soldiers accused of crimes connected with Abu Ghraib will
likely face general courts-martial, which can impose the most severe penalties.
(The death penalty, however, is reserved for murder and other crimes including
espionage and aiding the enemy during wartime.)
In a court-martial proceeding, the accused is guaranteed free legal
representation by a military defense lawyer. The accused also may retain his or
her own civilian counsel.
The general court-martial process includes a jury of as many as 12 members of
the military who are chosen by the convening authority and often serve in the
same military unit as the accused.
The court-martial members must be officers (supervisors and managers) and
therefore college educated. However, if the accused is enlisted personnel
(regular soldiers), he or she has the right to a jury of which at least
one-third of the members are sergeants -- who are high-ranking enlisted
personnel -- so that the jury includes more of the defendant's peers.
After an investigation, evidence of the crime is presented to a military judge
who then decides if enough evidence exists to proceed with a trial. This
"Article 32 hearing," analogous to a grand-jury investigation in civilian law,
gives the defendant the opportunity to cross-examine prosecution witnesses and
introduce evidence so as to prevent the case from proceeding -- rights not
available to the defendant in a civilian grand jury proceeding.
If the case does proceed, a judge is selected from group of experienced
courtroom attorneys with several years of experience known as the Judge Advocate
General Corps. Typically, many of these military attorneys have served as both
prosecution and defense lawyers in the military legal system. The judge will be
given the power to decide matters such as which evidence the jury will be
allowed to hear.
Unlike civilian criminal cases, where a guilty verdict in a criminal case must
be unanimous, only two-thirds of the members of the military jury has to agree
on a verdict. Further, sentencing of the prisoner, which in a civil criminal
case occurs weeks or months after the verdict is handed down, is done
immediately following a guilty verdict in a military trial.
If the accused is found guilty of a crime and is sentenced to confinement for a
year or longer, or discharge from the service, there is an automatic appeal
process that may reach the U.S. Court of Appeals for the Armed Forces or even
the U.S. Supreme Court.
The appeals process, like most other practices and procedures in a military
trial, is almost identical to that of a civilian trial, according to Judge
Sullivan. "If you close your eyes and you were brought into a military court,
you wouldn't be able to distinguish if you were in a military court or civilian
court in most instances," he said.
By Alexandra Abboud
Washington File Staff Writer