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As the first prosecution related to the abuse of detainees in Iraq’s Abu Ghraib prison gets under way May 19, the Pentagon desperately needs to demonstrate to Iraqis and the international community that the U.S. military can police its own ranks. The special court-martial of 24-year-old military policeman Spc. Jeremy Sivits has been billed as the first in a series of proceedings against those responsible for the acts of abuse that have sparked international outrage. The intense public scrutiny will test a military justice system that normally functions outside public view and administers its own brand of justice. While the system embraces many of the procedures and protections found in civilian courts, it operates under a set of rules and values that at times diverges from the goals of the more familiar criminal justice system. Ultimately, it is a system that is concerned primarily with maintaining internal order and discipline among military personnel — and secondarily with providing justice for victims. The military system is designed to provide a commander with maximum flexibility, giving him or her the authority either to send a powerful signal to troops as to what conduct will not be tolerated or to quietly deal with a problem behind closed doors before it infects a unit. “If you’re prosecuting a case in federal district court or state court, it’s about justice. We’re concerned about justice, but there are other important components of military law,” says a senior Army lawyer who has been involved in more than 300 cases. “We use the military justice system to support the commander in achieving his or her mission.” Yet the vast discretion held by military commanders under the system, as well as the military’s institutional interest in protecting its stature, raises concerns about the system’s ability to dispense impartial, evenhanded justice, particularly under the spotlight of public and political scrutiny. Commanders have a wide range of options for addressing allegations of misconduct before bringing criminal charges, such as imposing forfeiture of pay, issuing a reduction in rank, or restricting a soldier to base. If a commander refers charges to a court-martial, the case is typically brought before a military judge and a panel of officers or enlisted persons from the same command as the accused. In essence, say critics of the system, the potential jury pool in any case is limited to individuals who report to the very person bringing the charges, creating a serious problem of perceived, if not actual, bias. “The military system is uniquely susceptible to improper influence and prejudice,” says George Washington University Law School professor Jonathan Turley. “Defendants are tried before a jury that is entirely composed of people who would be stricken for cause in the federal system.” Retired Army Judge Advocate General John Fugh says he is confident that the military justice system will be able to handle the high-profile prison abuse cases. He notes that defense lawyers and military judges do not report to the commander who brings charges, but, instead, report through an independent chain of command. “I think these cases will be resolved satisfactorily in accordance with the proper rules and procedures,” Fugh says. b>INSTITUTIONAL INTERESTS Under the Uniform Code of Military Justice, it is taboo for a commander to pressure subordinates to return a particular result — a practice known as unlawful command influence. But defense lawyers say even subtle comments can sway the judgment of a court-martial panel composed of people whose careers depend upon following orders. Indeed, attorneys for several of those charged with abusing prisoners at Abu Ghraib have already indicated that they believe their clients will be unable to get a fair trial, given the harsh public statements made by President George W. Bush, the military’s commander in chief, and Defense Secretary Donald Rumsfeld. “When it comes to court-martials, we want people to exercise their own individual judgment and not be doing what they think somebody else up the chain of command wants them to do,” says retired Army Brig. Gen. John Cooke, former chief judge of the U.S. Army Court of Criminal Appeals, who says that incidences of overt command influence are exceptionally rare. In high-profile cases that hold implications for the entire military establishment, there can be another external pressure on jurors not found in ordinary criminal trials: the desire to restore honor to the institution. “You’ve got that extra factor that everyone in that courtroom is wearing the same uniform as the defendant,” says Thomas Moshang III, a former military lawyer who defended a Fort Campbell, Ky., soldier convicted of murdering a homosexual member of his unit in a case that attracted national attention in 1999. Moshang’s client, Calvin Glover, is serving a life sentence. A second soldier involved in the murder is serving 12 years on the relatively minor charges of obstruction of justice and making false statements. Moshang adds, “It really comes into play during sentencing. Once someone has been found guilty, there is an acute awareness of how the crime reflected on the military.” In the prison abuse scandal, the haste with which Sivits’ trial was scheduled suggests his fate has likely already been sealed through a plea bargain. Sivits, who allegedly took many of the graphic photos that have been released, is expected to testify against others who have been charged with more serious offenses. An additional six soldiers have now been charged in connection with the abuse of prisoners at Abu Ghraib. Whether charges will ultimately be brought against anyone higher in the chain of command remains to be seen. Experienced military lawyers say that the structure of the military justice system creates a disincentive toward pursuing charges up the chain of command. “This is the classic case that will create this problem,” says Virginia attorney Grant Lattin, chairman of the Bar Association of the District of Columbia’s Military Law Section. “One of the key issues in these cases is whether or not the officers in the chain of command made good decisions as they were administering the prison. Yet these are the same people who have prosecutorial discretion.” Lattin adds, “On the civilian side, getting the big fish has the greatest impact for prosecutors. In the military justice system, it’s the big fish that is making the decisions.” So far, seven Army officers and noncommissioned officers have received administrative punishments for leadership failures related to the abuse of prisoners at Abu Ghraib that will in all likelihood end their military careers. The system heavily favors such sanctions, which reinforce command authority. In 2003, roughly 7,300 courts-martial were convened in the Army, Air Force, Navy, and Marines combined. That same year, the services dispensed more than 80,000 nonjudicial punishments, known as Article 15s. At least two incidents involving the mistreatment of detainees in Iraq reported prior to revelations of abuse at Abu Ghraib and the accompanying photographs were resolved through nonjudicial punishments. In December 2003, Army Lt. Col. Allen West pleaded guilty to assault charges after he threatened to kill an Iraqi detainee during interrogation and then fired his gun near the man’s head. West was fined $5,000 and permitted to retire at his current rank, with full military benefits. And in October 2003, another Army soldier simply received a discharge from the service after killing an Iraqi prisoner who was attempting to escape a holding area. “The system tells the commander to start at the bottom of the continuum of disciplinary tools available and use the lowest one to resolve the problem,” says retired Air Force Col. Scott Silliman, head of the Center for Law, Ethics, and National Security at Duke University. LESSONS LOST The Pentagon has weathered its share of scandals in recent years, but nothing on a par with the outrage that has erupted worldwide over the photographs showing the degradation of Iraqi prisoners at American hands. For many, it recalls the international shock and disgrace that followed revelations during the Vietnam War that more than 300 Vietnamese civilians had been massacred by U.S. troops in the village of My Lai in 1968. Ultimately, 13 soldiers were charged with murder. Only one — Lt. William Calley — was convicted. Sentenced to life in prison, Calley served roughly four years under house arrest before his sentence was reduced by the secretary of the Army and he was released. An additional 12 division officers were charged with covering up the incident, but all were exonerated. The division commander received a demotion from major general to brigadier general. “My Lai ultimately left troubling questions about the military’s ability to hold itself accountable for these types of atrocities,” says law professor Turley. “The prosecution in My Lai began as an attempt to show how the military can police its own ranks. It ultimately produced the inverse image.” Current and former military lawyers say the system has evolved and become more professional and transparent. But recent events beg questions as to whether current military leaders have absorbed the lesson of My Lai. In the wake of the massacre, the Army concluded that soldiers had not received adequate training in the laws of war related to the treatment of civilians, and in 1974, the Defense Department promulgated a regulation mandating that all U.S. troops receive extensive law-of-war training from military judge advocates. However, in his recently released report on prisoner abuse at Abu Ghraib, Maj. Gen. Antonio Taguba concluded that military police personnel at Abu Ghraib were not adequately trained in requirements under the Geneva Conventions. Taguba criticized the military police brigade’s top lawyer, Lt. Col. James O’Hare, saying that he “appears to lack initiative and was unwilling to accept responsibility for any of his actions.” Even as the first of many anticipated courts-martial begins, Silliman, the Duke law professor, says the revelations of U.S. troops abusing detainees will spark another round of soul-searching about the role of lawyers in the military. “Maybe we got a little bit too comfortable in assuming all the training was being done,” he says.

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