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Washington�There were many courts-martial on the ground in the Vietnam War and many more in Korea. But those unfolding in Iraq because of abuses at Abu Ghraib prison carry the highest stakes yet for the United States and the greatest challenges for its military justice system, say military law scholars and lawyers. “In my lifetime, I do not remember any cases in the military justice system that were so closely watched or, in a sense, on which so much hung, as these cases,” said Kevin J. Barry, a retired Coast Guard captain and former military judge who practices military law in Chantilly, Va. Longtime military litigator Eugene Fidell of Washington’s Feldesman Tucker Leifer Fidell agreed, adding, “I think this will be the most interesting and important set of courts-martial since the Uniform Code of Military Justice was enacted in 1950. I can’t think of a single case that struck me as looming larger for the country as a whole.” What that may mean in turn, he added, is that the military justice system itself will be put under a microscope to see how it functions. “There is a school of thought that says it needs change to meet battlefield conditions,” explained Fidell, who is also president of the National Institute of Military Justice. “There is also a school of thought that thinks the system would benefit from a fresh look in light of developments in our legal system and evolving changes in the international legal system.” The court-martial system, which has not had a comprehensive review in more than 30 years, is capable of determining the guilt or innocence of those charged in the Iraq courts-martial, the first of which is set to begin this week, according to many former Judge Advocate General (JAG) officers and military scholars. “Courts-martial can deal with symptoms, but in fixing the disease-the lack of training, lack of supervision, lack of command structure, the culture, all of the things that broke down-the court-martial system can’t deal with that and isn’t supposed to,” said retired Rear Admiral John D. Hutson, a former Navy JAG and now dean of Franklin Pierce Law Center of Concord, N.H. Hutson said he doesn’t worry about the court-martial system. “What I worry about is we’ll look at this and say, ‘We court-martialed half a dozen or so people and gave them adequate punishment, so let’s move on.’ That will not have fixed the problems. The problems are organic.” System weakness As the NLJ went to press, seven American soldiers face courts-martial in the alleged prisoner abuses. Six of those are being held in Iraq and one is at Fort Bragg, N.C. Seven other soldiers who held supervisory positions have been issued administrative reprimands. Once these cases get to court-martial, they are, in a sense, “absolutely routine,” said Barry, because the procedures and process are well-established under the Uniform Code of Military Justice and the manual for courts-martial. “Everything else about these cases is not routine,” he added. Their notoriety, the egregiousness of the abuse, their importance to national security and their importance to international opinion all work together to heighten a major weakness in the military justice system, Barry said. The person who exercises prosecutorial discretion-whether to bring charges-in the military justice system is the commander, an officer whose primary responsibility is to ensure that his or her unit is prepared, trained and equipped for whatever role it has in the national defense scheme. In the Abu Ghraib prison, Major General Antonio Taguba, who headed the abuse investigation, identified as causes for the breakdown such things as inadequate training, lack of oversight and unclear chain of command-all of which implicate commanders or higher officers. So, for commanders in Iraq, Barry said, there is, at the least, an inherent conflict of interest. “On the one hand, if the commander thinks prosecution of an enlisted member or officer might implicate decisions he has made, decisions which may be negligent, he may decide not to prosecute,” said Barry. “Or a commander may think by prosecuting a member and holding that member accountable, blame will be shifted down the chain of command.” Because senators and other government officials have alleged very serious errors of judgment, faulty planning, lack of preparation and other problems, Barry added, commanders are in the “hot seat” and under enormous pressures. “Who could be a convening authority here without the appearance of a conflict of interest?” asked Barry, noting that even the president, who can be a convening authority, could be accused of having a conflict. Barry and other military lawyers said they expect defense motions arguing that a proper court-martial can not be convened because of unlawful command influence: Everybody in the chain is tainted. But, they added, they also expect such motions to be denied. “If I were the judge, I’d reject it,” admitted Barry. “If it were true, the entire military justice system is incompetent.” He and others noted that similar commander problems in Canada and Britain resulted in the 1990s reforms that removed the commander from the process. Feldesman Tucker’s Fidell said an early issue of venue may develop. “For example, General Kimmitt said all 135,000 soldiers in Iraq condemn what happened here,” he said. “You wouldn’t have to be Clarence Darrow to frame a motion for change of venue. Whether you get any traction is another matter. But it would be almost derelict not to raise it.” Fidell noted that the Iraq cases may trigger some novel issues for the military judge or court-martial panel on how far to allow the defense to cast its net. And the media scrutiny, he added, may disadvantage defense counsel: “Things that you might want to do quietly can’t be done quietly because everybody is watching.” The first court-martial this week is expected to bring a negotiated guilty plea by an enlisted member who is expected to assist the prosecution in other courts-martial, according to news reports. In the trials stemming from the My Lai massacre in Vietnam, the government did very badly because it could never find a conspirator who admitted to having done anything criminally wrong, recalled Michael Noone of Catholic University of America School of Law, a retired Air Force colonel and judge advocate. “From the prosecutor’s point of view, a series of guilty pleas would be a lot easier to handle,” said Noone. “The public would hate it. If defense counsel is doing its job right, maybe that’s what we’re going to see. It will then be up to Congress or an independent commission to ventilate this.” Noone also noted it will be interesting to see if anyone charged asks for a jury trial by a panel of soldiers. “In the My Lai cases, there were jury trials and there was a strong sense of ‘There but for the grace of God, go I,’ ” he recalled. “ We don’t know enough facts yet to say that. It may even be reversed. The accused may want a judge alone because he or she fears that if they plead not guilty, they may get hammered by career military people horrified by what happened.” Defending acts Once at trial, there are a number of ways to defend or to mitigate punishment, said David P. Sheldon, a former Navy lawyer now in private practice in Washington. “There is a real issue in terms of whether these service members were co-opted into a military intelligence role,” said Sheldon. “If I was a defense counsel looking at this case, I would look at what they were told and what kind of guidance, if any, they were given.” Sheldon noted that it is “striking” that the enlisted members charged are from a reserve unit that is new. He said a member could argue, ” ‘I wasn’t well-versed in the Geneva Convention; we were told to put some heat on these people and this was part of the military-intelligence guidance to us and so we went along. While in a vacuum, it appears horrific; in context, there is a reason for it and I’m not a bad person and you shouldn’t send me to jail for a long time.’ “ If what happened was part of military intelligence, then the rules changed, said Sheldon, adding that what is permissible at interrogation for purposes of intelligence is not permissible for detention. The defense probably also will use the “good soldier defense,” said Elizabeth Hillman of Rutgers School of Law-Camden, a former Air Force officer and military law scholar. “They will be permitted to bring in evidence of the person’s good character to convince the panel that the member did not commit the crime.” The defense of superior orders-that the member acted at the request of higher authority-probably will be used to mitigate punishment here, suggested Noone. “Judging by comments in the press, there will be some effort to suggest there were failures on the part of the chain of command, failures that somehow speak to guilt or innocence or the appropriate disposition,” added Fidell. All lawyers interviewed said they expect superior officers, not just enlisted members, to face courts-martial, given the nature of the problems and abuses revealed. But, they added, such courts-martial are rare, with administrative reprimands the usual alternative. “If there is no action by the chain of command to seriously investigate or bring charges against anyone who is a commissioned officer or a civilian interrogator, I think it’s going to be very difficult for the U.S. to maintain before the world that we have done justice,” said Barry. But proving that dereliction of duty or negligent supervision was caused by a culture that existed at the prison is a tough task, said Hutson. The Geneva Conventions, he said, are only a metaphor for the troubles that came to light: the attitude, the culture that prevailed at Abu Ghraib. “If the leadership-military and civilian-had stood up from the beginning and said crystal clear: ‘These people may be terrorists, but, by God, they’re human beings and we will treat them with the dignity and respect we want to be treated with,’ that message would have worked its way from the top all the way down,” said Hutson, “instead of the opposite message that this is a war on terrorism; they are subhuman, and therefore different rules apply, without ever saying what different rules apply.” Coyle’s e-mail address is [email protected].

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