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| June 2, 2004 | ||
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The American Military Justice System and the Response to Prisoner Abuse By
Michael N. Schmitt |
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Under international humanitarian law, commanders and other superiors have a duty to take measures necessary to prevent violations of the law, and to forward allegations of such misconduct to the appropriate authorities for investigation and prosecution. As the United States military complies with these requirements by continuing its various investigations and court-martialing those charged with abusing prisoners held at US detention facilities in Iraq, it is useful to examine the tools commanders have to maintain “good order and discipline” in the armed forces.
The primary options fall into four categories: administrative measures of correction, nonjudicial punishment, courts-martial, and expulsion (or involuntary administrative separation) from the military. This summary will not deal with involuntary administrative separation, although conduct forming the basis for exercising the other options may provide a separate ground for expelling those involved from the armed forces. These and other components of the military justice system are set forth in: the Uniform Code of Military Justice (UCMJ), a statute passed by Congress that includes punitive articles (crimes); the Manual for Courts-Martial, which is authorized by Presidential Executive Orders and contains the Rules for Courts-Martial, the Military Rules of Evidence, explanations of punitive articles of the UCMJ, maximum punishments, and nonjudicial punishment procedures; and the regulations of the various branches of the armed forces. In the Army, Regulation 27-10 provides core guidance for implementation of the military justice system.
Administrative Counseling, Admonition, and Reprimand
Administrative counseling, admonitions, and reprimands constitute the mildest responses to misconduct by military personnel. Counseling and admonition are essentially rehabilitative measures, and would generally be inappropriate to address conduct such as that which has occurred at Abu Ghraib Prison. As of May 28, only one soldier has received a letter of admonishment based on events there.
Reprimand is a more severe measure. By May 28, six Army personnel had received letters of reprimand in the incident, two of whom were also relieved from their duties. Significantly, they include individuals in the chain of command of those who personally abused the prisoners. The grounds for the reprimands were uncovered by Major General Taguba in his investigation into detention and internment operations of the 800th Military Police Brigade. In his report, Taguba recommended reprimands for seven officers and three non-commissioned officers (NCOs). The group included the Commander, Brigadier General Janis Karpinski. According to Taguba, she failed to ensure her unit had appropriate procedures for dealing with detainees, failed to ensure they adhered to the protections afforded detainees by the Third Geneva Convention on prisoners of war, did not take appropriate action regarding ineffective subordinate officers, and fell short in enforcing basic soldier standards.
Taguba also recommended a reprimand for Col. Thomas Pappas, the Commander of the 205th Military Intelligence Brigade, which was responsible for conducting interrogations at Abu Ghraib. According to Taguba, Pappas failed to ensure that soldiers he commanded understood and complied with either the interrogation rules of engagement or the dictates of the Third Geneva Convention. Taguba further found that the colonel did not properly supervise members of his unit assigned to the prison. The fact that some of those involved have been reprimanded does not insulate them from further action, such as court-martial, should the investigation reveal that it is warranted.
Although a reprimand is, strictly speaking, not a form of punishment, it has the potential to end a military career, especially that of an officer. When the reprimand is filed in a soldier's Official Military Personnel File, as may the “General Officer” reprimands recommended by Major General Taguba, this is almost always the case. Such reprimands bear heavily on promotion determinations, and may serve as a bar to further reenlistment or as a basis for involuntarily separating the soldier from the military.
Nonjudicial Punishment
The lightest form of “punishment” that may be imposed in the military is known as “nonjudicial punishment.” Authorized by Article 15 of the UCMJ, it is called “Article 15” in the Army and Air Force, “Captain's Mast” in the Navy, and “Office Hours” in the Marine Corps. Article 15s may only be imposed for violation of the UCMJ's punitive articles, in particular, “minor” offenses. That said, commanders exercise great discretion in deciding whether to impose nonjudicial punishment or send a case to trial.
In an Article 15 proceeding, the commander controls the process. It is the commander who, after conducting a preliminary inquiry, determines whether an offense meriting nonjudicial punishment has been committed. If so, the accused is notified of the pending proceedings, the suspected offense, and the evidence underlying the allegation. An accused may consult with counsel, examine the evidence, and appear before the commander to present his or her own evidence and witnesses (if reasonably available) in defense, extenuation, or mitigation.
While there is no formal standard of proof in an Article 15 proceeding, at a minimum, the guilt of the accused should be established by a “preponderance of the evidence,” i.e., evidence that guilt is more likely than not. The commander imposing the punishment should also bear in mind that an accused may elect to “turn down” (refuse) the Article 15 and have the case heard by a court-martial, where the government would be required to prove his guilt “beyond a reasonable doubt.”
In turning down an Article 15, the accused risks the greater punishment imposable at court-martial, as well as the possibility of a criminal conviction. If he or she accepts the Article 15 and is found by the commander to have committed the offense, possible punishment includes restriction to limits such as the base or ship, forfeiture of a portion of pay, reduction in grade (military rank), correctional custody (a form of limited detention designed to rehabilitate the offender), extra duties, and reprimand. Written appeals to the next commander in the chain of command are permitted on the ground that punishment was either unjust or disproportionate to the offense.
Article 15s have a serious negative impact on a military career, affecting such issues as promotion, assignment, and retention. As of May 28, no soldiers had received nonjudicial punishment for involvement in the events at Abu Ghraib prison, although as investigations proceed, nonjudicial punishment actions are a distinct possibility for some of the less culpable actors.
If an accused turns down the Article 15 and demands court-martial, or if the commander determines that court-martial is the appropriate forum to consider guilt and punishment, the trial process begins. There are three types of courts-martial in the military: Summary, Special, and General.
Summary Courts-Martial
A Summary Court-Martial is presided over by an officer, who need not be a judge advocate (military attorney). Moreover, there is no requirement for a defense counsel, although one is typically appointed. The accused may retain civilian counsel at his own expense. An accused may “turn down” trial by Summary Court-Martial in order to take advantage of the greater rights and more robust procedures of a Special Court-Martial. By doing so, he or she is exposed to the greater punishment available in that forum.
Summary Courts-Martial cannot try officers and punishment is capped at one month confinement, reduction in grade, and forfeiture of 2/3 of basic pay for one month. Further limitations exist based on the accused's grade. No soldiers charged in the Abu Ghraib affair are facing a Summary Court-Martial.
Special Courts-Martial
The most common form of military trial is the Special Court-Martial. So far, there has been one Special Court-Martial in the prisoner abuse case, that of Specialist Jeremy Sivits, who pled guilty to conspiracy to maltreat detainees, dereliction of duty by failing to prevent their mistreatment, and maltreatment of detainees himself. The Military Judge sentenced Specialist Sivits to reduction to Private, a Bad Conduct Discharge, and one year of confinement, essentially the maximum punishment allowed at a Special Court-Martial. The guilty plea was in accordance with a pre-trial agreement (plea bargain – see below) with the convening authority in which Sivits agreed to plead guilty and testify in future trials in exchange for being tried by a Special instead of a General Court-Martial, where he would have been subject to greater punishment.
The Special Court-Martial process begins with a decision by the “Convening Authority” to “refer” an alleged UCMJ violation(s) to trial after charges have been “preferred.” Preferral is done by a person subject to the UCMJ (usually the immediate commander) who signs a “charge sheet” under oath that he or she has investigated a situation in which the accused allegedly committed specified offenses. The charge sheet is then forwarded to the Special Courts-Martial convening authority, typically Brigade Commanders (colonels) in the Army, for possible referral to trial. In Sivits' case, charges were preferred by his company commander and referred by Lieutenant General Thomas Metz, the Deputy Commander of U.S. forces in Iraq.
In a Special Court-Martial (as well as a General), a military judge who is not only a judge advocate (lawyer), but also certified to serve in a judicial capacity, presides. The accused is represented by a “detailed” (assigned) judge advocate certified as a defense counsel; the accused may also request a particular “reasonably available” military defense counsel or hire a civilian attorney at his or her own expense. To ensure defense counsel feel free to zealously defend their client, the convening authority may not be in their chain of command; rather their supervisory chain consists of other military defense counsel assigned to the Army's Trial Defense Services. The trial counsel (prosecutor) must be an officer, and is almost always a judge advocate.
An accused may choose whether to be tried by the judge or by a panel of jurors, called “members” in the military. Panels, selected by the Convening Authority for their maturity in judgment, consist of at least three members, 1/3 of whom must be enlisted (not officers) if the accused so requests. Two-thirds of the members must concur in a conviction and in the sentence imposed. Even if the accused elects trial by members, the military judge continues to preside over the proceedings, just as a civilian judge presides in a jury trial.
Whether in a Special or General Courts-Martial, the accused enjoys extensive rights, including some unavailable to defendants in civilian trials. He or she has the right to a speedy trial and to discovery of evidence in the hands of the government. If there is to be a panel of members, the defense counsel may “challenge” the participation of any prospective member on the basis that he or she is biased; counsel may further remove one member “peremptorily,” i.e., without cause. Government evidence may be contested and witnesses cross-examined, and the defense may present its own live witnesses and offer other relevant evidence; indeed, the Military Rules of Evidence are nearly identical to those used in federal courts. Accused need not testify, although if they do they subject themselves to cross-examination. To ensure transparency of the justice process, trials are generally open to the public (they may be closed, for instance, when considering classified material).
Members vote on guilt by secret written ballot. Two-thirds must vote for conviction or the accused will be found “not guilty.” Thus, unlike the civilian judicial system, which often requires a unanimous vote for conviction, the military does not have “hung juries.”
Once a guilty finding has been returned, a sentencing phase begins. During this proceeding, the convicted soldier may submit evidence in extenuation or mitigation, or that otherwise bears on the appropriateness of a sentence. The government presents any evidence in aggravation. Typical topics for sentencing evidence include prior duty performance, impact of the crime on the unit, the soldier's remorse for his actions, and impact of the crime on any victims. The soldier may also make a statement without being under oath and without being subject to cross-examination. As with the finding, 2/3 of the members must concur in any sentence that is imposed.
Special Courts-Martial may not award a sentence in excess of one year's confinement, a Bad Conduct Discharge, forfeiture of 2/3 pay and allowance per month for up to 12 months, a fine, and reduction to the lowest enlisted pay grade (Private). They may not, however, confine officers or reduce them in grade.
General Courts-Martial
As of May 28, five of the Abu Ghraib cases are formally proceeding towards General Courts-Martial (with one more imminent). The General Court-Martial process begins with the preferral of charges, in these cases by the company commander following his review of an Army Criminal Investigation Command report of investigation and consultation with a judge advocate. Upon receipt of the charges, any courts-martial convening authority (usually the Special Courts-Martial Convening Authority) may direct an Article 32 investigation (titled after the relevant provision of the UCMJ), in which an impartial “investigating officer” conducts a hearing to assess whether “reasonable grounds” (probable cause) exist to believe the accused committed the offenses charged. The accused may be present, be represented by counsel, and present evidence and reasonably available witnesses. Following the hearing, the investigating officer submits a report discussing the sufficiency of the evidence and recommending disposition of the charges.
Disposition recommendations may include dismissal of some or all of the charges, handling the matter administratively or through nonjudicial punishment, or referral to a specific level of court-martial. They may also include adding charges or modifying them in a significant way, although doing so requires further investigation.
If the appointing authority decides to forward the case to the General Court-Martial Convening Authority, the latter's “Staff Judge Advocate” (senior attorney) reviews the case and provides a written assessment known as the Article 34 Pretrial Advice (also required for more severe penalties in Special Courts-Martial). The advice contains conclusions as to whether the conduct alleged amounts to an offense under the UCMJ, the sufficiency of evidence of the offense (probable cause), and the existence of jurisdiction over the accused and the offense. With the Article 32 report and the Pretrial Advice at hand, the General Courts-Martial Convening Authority, usually the Division Commander (Major General), “refers” the case to a General Court-Martial or directs other disposition, such as referral to a Special Court-Martial. In a General Court-Martial, the trial counsel must be a judge advocate certified to participate in such trials and the panel must consist of at least five members. As with the Special Court-Martial, the accused may elect trial by military judge alone.
By May 28, three of the five cases had been referred to a General Court-Martial by Lieutenant General Metz. Staff Sergeant Ivan Frederick, Specialist Charles Graner, and Sergeant Javal Davis are all charged with conspiracy to maltreat subordinates (detainees); dereliction of duty for willfully failing to protect detainees from abuse, cruelty and maltreatment; maltreatment of detainees; and assaulting detainees. Frederick and Graner are also charged with committing indecent acts. Additionally, Graner is charged with adultery and obstruction of justice, while Davis faces an additional allegation of providing a false official statement to a criminal investigator. Referral of additional cases to trial is highly likely.
While it is possible to expressly charge US military personnel with commission of a war crime, doing so is not the norm. Instead, the conduct underlying the war crime is typically charged as a violation of various UCMJ provisions. The charges levied against Sergeant Graner are illustrative. He was charged with a violation of Article 81 by engaging in a conspiracy to maltreat subordinates by photographing a detainee being dragged (by his co-conspirator, Private First Class Lynndie England) with a leash around the neck and posing for a photograph behind a pyramid of naked detainees. He was also charged with dereliction of duty in violation of Article 91 by failing to protect detainees from abuse, cruelty and maltreatment, and with cruelty and maltreatment of a subordinate in violation of Article 93 by placing naked detainees into a pyramid, forcing detainees to simulate oral sex, acting as if he was going to strike a detainee, encouraging England to mistreat a detainee with a leash, and photographing these acts.
Graner was further charged with assault in violation of Article 128 by jumping on piles of detainees, stomping on their hands and feet with his boots, punching one so hard as to render him unconscious, and using a metal baton to strike a detainee on previously inflicted lesions. Finally, he faces charges of engaging in conduct to the detriment of good order and discipline in violation of Article 134 by committing adultery with England , observing detainees masturbating with other soldiers who were photographing them, and tampering with a witness.
A General Court-Martial allows the imposition of all categories of military punishments available at a Special Courts-Martial, as well as the death penalty (although the death penalty is not authorized for any of the Abu Ghraib cases referred to trial). It may also adjudge a Dishonorable Discharge for enlisted soldiers or a “Dismissal” from the military for officers. Such discharges have a severe impact on veterans' benefits and job prospects. It must be borne in mind that the UCMJ provides a maximum punishment for each criminal offense. Therefore, the maximum punishment that may be adjudged varies from trial to trial, being calculated by adding the maximum confinement period for each of the charges of which the accused is found guilty. If the trial is before members, the sentence requires the agreement of 2/3, although 3/4 must concur in any sentence to confinement exceeding 10 years. Unanimity is required for the death penalty.
Before trial, the accused often executes a pretrial agreement with the Convening Authority in which he or she agrees to plead guilty to all or some offenses, assist the prosecution of other soldiers, or otherwise help the government. In exchange, the Convening Authority usually commits not to approve a sentence in excess of a specified amount of confinement or to limit the type of discharge (pretrial agreements are also available in Special Courts-Martial, although the forum itself already imposes a cap on punishment). The terms of any agreement are made know to the judge or panel only after they have adjudged a sentence. Convicted soldiers benefit from the lighter of the cap set forth in a pretrial agreement or the sentence imposed by the judge or members.
Review and Appeal
Following trial, the Convening Authority may approve the findings and sentence, dismiss them, or change them in any way that benefits the convicted soldier. If the sentence includes death, a discharge from the military, or confinement for one year or more, a panel of at least three appellate military judges of the Court of Criminal Appeals of the individual's branch of service will automatically review the case. The Judge Advocate General of the relevant service reviews all other General Courts-Martial, whereas a judge advocate must review all Special Courts-Martial not resulting in a discharge. An important distinction between the military Courts of Criminal Appeals and their civilian counterparts is that while most civilian appellate courts must accept the facts as found by the trial level court, the Courts of Criminal Appeals are permitted to reconsider such matters as disputed issues of fact, the credibility of witnesses, and the appropriate weight to be accorded to evidence. The Courts may correct legal errors made by the lower court and reduce sentences they deem excessive.
Further appeal is possible to the Court of Appeals for the Armed Forces. Consisting of five civilian judges nominated by the President and confirmed by Congress for 15 year terms, it must review cases involving a death sentence and those submitted by a service's Judge Advocate General, but, like civilian federal courts, has the discretion to otherwise chose which petitions for review it will accept. Additional discretionary review is possible in the United States Supreme Court. The military appellant is entitled to counsel free of charge throughout the appellate process.
Confinement Those convicted in a court-martial are usually incarcerated in a military confinement facility, although some may be sent to a federal prison so long as appellate review is final and the offenses for which they were convicted are not purely military in nature. There are two levels of prisons in the military. “Regional confinement facilities” house most of those sentenced to confinement of up to seven years (those with short sentences may be confined at small local facilities on military installations). Currently, there are four such facilities maintained by the Army: Fort Knox , Kentucky ; Fort Sill , Oklahoma ; Camp Humphreys , Korea ; and Coleman Barracks, Germany . Prisoners sentenced to more than seven years confinement are usually incarcerated at the “United States Disciplinary Barracks” at Fort Leavenworth , Kansas. Females serve any significant sentence at the US Navy's Miramar Consolidated Brig in California.
Inmates with a 12 month or greater sentence are eligible to request parole after serving one-third of their sentence (but a minimum of six months), unless they have been sentenced to 30 years to life, in which case they must serve 20 years before becoming eligible. The Clemency and Parole Board in Washington , D.C. , serves as the final decision authority. That board considers such matters as the circumstances surrounding the crime, the petitioner's military and confinement record, the impact of parole on the victim, and the well being of the civilian community into which the prisoner would be released. If released, the parolee must comply with any conditions specified, lest the parole be revoked. Those sentenced to death or life without parole cannot be paroled.
The Board may also grant clemency (reduction in release date) at a point dependent on the sentence length, although it must be at least one year. All prisoners are also eligible for “Good Conduct Time” credit, unless sentenced to life imprisonment or to death.
Command Influence
Secretary Rumsfeld and other senior officials and officers in the Department of Defense have occasionally hesitated to answer questions, citing the risk of “unlawful command influence.” Unlawful command influence occurs when a commander, court member, or witness in the court-martial process receives pressure from above in a way that interferes with his or her independent judgment and discretion. As examples, it would be inappropriate for a senior individual to suggest that he or she wants an accused to be found guilty, receive “harsh punishment,” or otherwise receive a particular sentence in a way that might influence the deliberations of panel members. Command influence can occur even when the individual involved did not mean to influence the proceedings. The consequences of unlawful command influence are severe, for once raised at trial, the burden shifts to the government to prove that there was no unlawful command influence or that it will not affect the trial. Indeed, appellate courts are prohibited from approving a guilty finding or sentence until they are satisfied beyond a reasonable doubt that it was unaffected by unlawful command influence.
Command Responsibility
Another topic of relevance to present events is the principle of “command responsibility.” International humanitarian law provides that commanders are responsible for crimes of subordinates if they knew or should have known that they were being committed or about to be committed and did nothing to stop them and/or report the matter to appropriate authorities for investigation and prosecution. Although the UCMJ does not expressly make command responsibility a basis for prosecution, those who are responsible under the principle are at minimum derelict in the performance of their duties in violation of Article 92 of the UCMJ. Numerous US military publications, including the Army's law of war manual, Field Manual 27-10, set forth the duty underlying the command responsibility principle. Dereliction includes not only willfully failing to do one's duties, but also being negligent or “culpably inefficient” in performing them. This principle is of particular importance because, as noted in the Taguba Report, the offenses committed at Abu Ghraib prison were “blatant.”
Superior Orders
There have been multiple suggestions that the abuses at Abu Ghraib were directed (or at least encouraged) by military intelligence personnel who hoped the treatment would pressure detainees into revealing useful intelligence. If true, such instructions would not prevent conviction for the crimes comitted in the prison. Like international humanitarian law, US military law rejects the defense of superior orders, i.e., that conduct should be excused because it was pursuant to the order of a superior or otherwise in compliance with a duty of the accused. Soldiers have an obligation to refuse to follow illegal orders; all orders to commit war crimes are illegal. Under US military law, the only defense to obeying an illegal order is that the accused did not him or herself actually know the order was illegal and neither would a person of ordinary sense and understanding (Rule for Courts-Martial 916). To suggest that a person of ordinary sense and understanding would not have understood the illegality of the type of mistreatment inflicted at Abu Ghraib is absurd.
It should be noted that under Article 77 of the UCMJ, a person is guilty of an offense that they “assist, encourage, advise, instigate, counsel, command, or procure another to commit” as if they had committed the offense him or herself. Culpability even extends to those who take no action in the face of a crime if they had a duty to act to stop or report the crime, such as military police. Prosecution of superiors or those who encouraged the abuses at Abu Ghraib may also be possible under this principle.
Civilians
Finally, military courts do not generally exercise jurisdiction over civilians, although in certain very limited cases the military technically has jurisdiction over civilians accompanying the armed forces during a time of war pursuant to Article 2 of the UCMJ. Yet, case law narrows even this limited jurisdictional prerogative. More likely is prosecution in federal court, which is provided for in the 1996 War Crimes Act (18 USC 2441, as amended) if the victim or perpetrator of a war crime is a US national. The statute applies regardless of where the crime was committed. Although the types of crimes covered by the statute are limited, grave breaches of the Geneva Conventions are included. Grave breaches specifically include torture and inhuman treatment of prisoners of war and civilians in occupied territory, as well as serious bodily injury to them, under the Third (Article 130) and Fourth (Article 147) Geneva Conventions.
Moreover, the Military Extraterritorial Jurisdiction Act of 2002 (18 USC 3261-67) extends federal jurisdiction over “persons employed by or accompanying the Armed Forces outside the United States” if they commit an act that would “constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in” within the territorial jurisdiction of the United States . Certainly, some of the abuses alleged in Iraq would meet this criterion. Finally, the Torture Act (18 USC 2340A) allows prosecution of US nationals if they engage in acts of torture outside the United States . What is clear is that US civilians, whether contractors or government employees, who may have committed offenses against prisoners are not immune from prosecution in the US judicial system.
With multiple investigations ongoing into the treatment of detainees in US custody in Iraq and elsewhere, the US armed forces will surely continue to impose administrative, nonjudical, and judicial sanctions to correct misconduct and punish criminality. The military justice system is well developed and robust, offering commanders many options for handling offenses by subordinates, while safeguarding the rights of an accused.
Yet as events continue to unfold, the extent to which such steps are taken with regard to those who did not personally engage in abuses -- especially supervisors and commanders in the chain of command, individuals who may have encouraged the mistreatment, and those who knew of the misconduct, but failed to report it -- will be particularly telling. In order to recover from the impact, domestically and internationally, of the prisoner abuse scandal, the US military will need to move swiftly and deliberately to ensure that all those involved -- directly, indirectly, or through omission -- are brought to justice.
Michael N. Schmitt is Professor of International Law, George C. Marshall European Center for Security Studies, and a former USAF Judge Advocate. Related Links Uniform Code of Military Justice Background Briefing - Uniform Code of Military Justice and Court Martial Procedures U.S. Department of Defense News Transcript May 19, 2004 |
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