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Perhaps the Bush administration has said it before. But never as starkly or forthrightly as last week, when it explained the real impediment to trying the 450 Guant�namo Bay detainees under the Uniform Code of Military Justice, the legal system used throughout the military for a little more than half a century. The problem, the Pentagon’s principal deputy general counsel, Daniel Dell’Orto, told the Senate Judiciary Committee is simple: The UCMJ’s standard of justice is too high � “more solicitous of the rights of the accused than our civilian courts. “Alternative processes,” he said, using the euphemism for the military commissions announced by the president on Nov. 13, 2001, “are necessary to avoid the absurd result of adopting protections for terrorists that American citizens do not receive in civilian court.” Defense lawyers, especially those representing the handful of Guant�namo detainees already charged, say that Dell’Orto and the Pentagon are simply making excuses for weak cases. “You don’t change the rules to make it easier to convict,” argues Navy Lt. Cmdr. Charles Swift, the military-appointed defense lawyer for Salim Hamdan, a Yemeni national and Guant�namo detainee who last month won a landmark Supreme Court case challenging the legality of the military commission set up to try him. It is true that under the UCMJ, which Congress created after the morass of often indiscriminate military justice in World War II, defendants’ rights are taken rather seriously. “The UCMJ is a legal system that really recognizes that the people who have been prosecuted have served the country and earned these protections,” said Sen. Lindsey Graham (R-S.C.), speaking after the committee’s July 11 hearing, called in response to the high court’s 5-3 ruling in Hamdan v. Rumsfeld. “I’d rather be tried under military justice,” added Graham, an Air Force Reserve judge in the Air Force Court of Criminal Appeals who is expected to play a key role in drafting legislation that will determine how the detainees are tried. The Supreme Court’s June 28 ruling agreed that the White House could establish a military commission, but it had to justify any procedural deviation from the UCMJ or other international legal norm. “It is not evident why the danger posed by international terrorism, considerable though it is, should require, in the case of Hamdan’s trial, any variance from the court-martial rules,” wrote Justice John Paul Stevens. Alternately, the Court said, the military commission could also pass constitutional muster if it were expressly authorized by Congress. A series of congressional hearings last week, which included the Senate Judiciary Committee, were the first in what should be a summer of intense debate on how Congress should respond to the Hamdan ruling: either by passing legislation authorizing the commission itself or requiring the administration to try the detainees under strict or slightly modified UCMJ guidelines, a sort of UCMJ lite, a concept that Graham appears to be backing. Rules of engagement The UCMJ applies to all 1.4 million active service members. Its range of crimes include the standard-issue � robbery, forgery, assault, and murder � and violations of a particularly military character, such as conduct unbecoming an officer and a gentleman, desertion, and dereliction in the performance of one’s duties. In the civilian world, notes John Hutson, the former chief judge advocate general of the Navy and now dean of the Franklin Pierce Law Center in Concord, N.H., “if you do your job badly, you can be fired. In the military it’s literally a federal offense.” At times, the UCMJ’s language betrays its roots in the British Royal Navy’s 17th-century Articles of War. “Punishment by flogging, or by branding, marking, or tattooing on the body . . . may not be adjudged by a court-martial or inflicted upon any person subject to this chapter,” reads Article 55, adding that “The use of irons, single or double, except for the purpose of safe custody, is prohibited.” When it comes to its rules surrounding defendants, however, the UCMJ has long been well ahead of civilian societal norms. Since its inception in 1951, the UCMJ has had its version of a Miranda rule. Civilian courts, on the other hand, were not legally required to warn a suspect of his right to remain silent until the Supreme Court’s Miranda v. Arizona decision in 1966. Defendants are provided with free military counsel, whether or not they can afford to pay for it, and they can hire civilian counsel if they choose. Discovery and the sharing of the government’s information with the defense are often more open than in civilian courts. And the often-discredited civilian grand jury system has been replaced with a far more rigorous pretrial equivalent, one where the defendant is present and his lawyer has the right, even if infrequently exercised, to call witnesses and cross-examine them. Given the breadth of those protections, perhaps it’s understandable that Dell’Orto would reiterate to Sen. Jon Kyl (R-Ariz.) last week that it would be “ludicrous, in my estimation, to accord those sorts of rights, at that level, to that degree, to the sorts of people we have here.” That’s certainly not what the commission’s procedural rules envision, rules that pointedly reject other jurisprudential models and note that only the commission’s regulations “and no others” shall be used. As outlined in its March 21, 2002, Military Commission Order No. 1, there is no equivalent of the Miranda rule, and there are no rules prohibiting detention without charges or that require charges to be brought within a specific time frame. Communications between defense counsel and the accused can be monitored by the government, and although information obtained through monitoring cannot be used against the accused, defense attorneys note that there is the obvious potential of a chilling effect. “Another striking feature,” as Stevens wrote, is that the commission’s rules of evidence allow any evidence to be admitted, including any degree of hearsay or coerced testimony, provided that the presiding officer believes it has “probative value to a reasonable person.” A culture of command Legal scholars who study and practice under the UCMJ say there are good reasons � historical, ethical, and cultural � for the heightened attention paid to defendants’ rights. “There was a sense in World War II that a lot of servicemen made big sacrifices for the U.S. and here we were subjecting them to a style of justice that was more like the Soviet or Chinese style, and during the Cold War we couldn’t allow that,” explains Elizabeth Lutes Hillman, a professor at Rutgers School of Law-Camden and a former Air Force officer. Over the past 35 years, adds Eugene Fidell, a civilian lawyer who heads the military practice group at Washington’s Feldesman Tucker Leifer Fidell, the UCMJ has grown “closer and closer to normal American federal criminal law, so that the rules of evidence are now virtually identical.” Hillman says the Miranda-style rule in effect since the UCMJ’s inception is designed to compensate for the culture of obedience that the military fosters by necessity. “Military personnel are conditioned to obey,” says Hillman. “They literally wear their rank on their sleeves, and if they’re responding to a person in authority, they’re more likely to answer questions that are not in their interest than a civilian. You want more protection in that case, when the system could work against you.” There are, of course, certain inherent problems with the UCMJ, ones that stem from the nature of a military setting. For example, Hillman explains, the commanding officer, legally known as the “convening authority,” chooses the jury pool, which can then be pared down to a minimum of five “members,” as the jurors are known, by counsel for each side. “It’s as if the D.A. chooses a list of 50 people who would end up on your court-martial,” Hillman says. “You want them to come up as pingpong balls in your random selection.” The commanding officer also decides whether to bring charges, and if he wants to, he can overrule the recommendation of a military prosecutor who has decided, after the pretrial investigation, that the case should or should not move forward. Unlike district attorneys, notes Hillman, commanding officers have to consider a host of issues before they decide whether to try a case; they are not making the decision on a relatively pure legal basis, like a civilian district attorney. “A D.A. has a job to do � he’s trained as a lawyer and interested in controlling crime,” Hillman says. “But a CO has other responsibilities � maintaining good relations in the community, keeping morale high and discipline up � and all of those things don’t necessarily work in the same direction when the question is whether someone deserves to be prosecuted for a crime.” Close to home And last week, as the Pentagon’s Dell’Orto was testifying on the Hill, a high-profile court-martial was taking place less than a mile away, at the Washington Navy Yard. Lamar Owens Jr., the Naval Academy’s star quarterback, was on trial, charged with raping a female midshipman. The process in the dingy second-floor courtroom felt very much like a civilian trial except for the presence of the dozen naval officers � the five members of the jury, the military counsels, and the judge � all of whom were dressed in their summer whites. Their attire was in sharp contrast to the dark suit worn by Owens’ civilian attorney, Reid Weingarten of Steptoe & Johnson. Weingarten, his glasses resting on the end of his nose, was operating like an attorney in any trial, gently but skeptically leading the alleged victim through a lengthy series of questions, asking her about her drinking patterns, blackouts, alcohol-related behavior changes, and a middle-of-the-night instant-messaging session with her boyfriend, the text of which was projected onto a low screen. “That’s your testimony? That’s your story?” Weingarten said to the witness during his cross-examination. The Navy judge, Cmdr. John Maksym, looked up sharply. “Members will disregard the term �story,’ ” he said to the jury. “I apologize,” Weingarten said. T.R. Goldman can be contacted by [email protected]

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