Iraq Cases Put Focus on Military Justice

When Spc. Jeremy Sivits faces a public court-martial in a Baghdad convention center Wednesday, Americans will get the kind of look into the military justice system they haven’t had since Army Lt. William Calley was tried for his role in the 1968 My Lai massacre of civilians in Vietnam.

Like that landmark case, the trials of Sivits and other soldiers who have served as guards at Abu Ghraib prison and are accused of abusing Iraqi detainees there hold the potential to calm -- or further inflame -- American and world opinion.

“These are the most important military justice cases in my lifetime because of the impact,” said Kevin Barry, a Chantilly, Va., lawyer and a former Coast Guard appellate judge.

But while courts-martial parallel civilian justice, they offer a peculiarly military brand of jurisprudence. Americans inundated with coverage of military justice on cable news channels may find that, as French statesman Georges Clemenceau famously put it, “military justice is to justice as military music is to music.”

The main thing the coming military court-martial cases in Iraq have in common with high-profile civilian trials is likely to be an avalanche of publicity.

In military justice, there are no standard sentencing guidelines and defendants are not entitled to be tried by a jury of their peers. In a general court-martial, a jury of five or more service members can take notes and ask questions. Two-thirds of them can send the defendant to prison.

Courts-martial also hold a few advantages for the defendant. Jurors may decide that despite a conviction, no punishment is warranted. If jurors deadlock, the defendant is free and does not face retrial. The defendant’s military lawyer is provided without cost, and the defendant can hire as many as he or she likes.

Yet courts-martial often have been criticized for allowing commanders to influence the process by handpicking jurors -- a feature that has been changed in the Canadian and British military systems, though the U.S. has resisted such a move despite the recommendation of at least one major legal panel.

“Can you get a fair trial? Yes. But you never can know for sure, and the reason is this selection process,” said Barry, the lawyer. “The aura of command influence in the role of the convening authority is always there.”

The most recent court-martial to generate national publicity was that of Army chaplain Capt. James Joseph Yee, who was investigated last year in an espionage case at the U.S. Navy base at Guantanamo Bay, Cuba. In the end, all criminal charges were dropped, and administrative penalties were dismissed on appeal, but the damage had been done to Yee’s career.

The trials due to take place in Iraq are likely to produce some novel legal tactics, lawyers who specialize in courts-martial said. The Army reservists accused of abusing Iraqi detainees at Abu Ghraib prison could, for example, seek to move the trials from Baghdad to the U.S. Defendants could use the statements by top Pentagon and Bush administration officials deploring prison abuses in their defense, to show an inability to gain a fair trial, said Eugene R. Fidell, who was Yee’s attorney and is president of the Institute for Military Justice, a professional association.

Unlike other defendants, Sivits faces a special court-martial, where the maximum term of imprisonment is one year.

Defense lawyers said this probably was a sign he had agreed to help prosecutors.

Penalties can be much harsher for those convicted in a general court-martial. “Prosecutors in the military do the same thing prosecutors do everywhere,” Barry said. “They say, ‘First one in wins