Posted on 05/10/2004 7:07:07 PM PDT by saquin
The trial next week of an American military policeman on charges of mistreating Iraqi detainees at Abu Ghraib prison is likely to disappoint people eager for a thorough airing of the available evidence. It may also frustrate those who would like to see tough punishment should his guilt be established.
Both the speed with which the policeman, Specialist Jeremy Sivits, has been brought to trial and the relatively minor sanctions he faces suggest that prosecutors are working their way up the chain of culpability from the bottom. These factors also suggest that Specialist Sivits has entered into a plea agreement in exchange for his testimony at later trials. Six other soldiers are also facing criminal charges in the abuse and humiliation of Iraqi prisoners at Abu Ghraib.
"They've probably got a domino theory of prosecutions," said John D. Hutson, the dean of the Franklin Pierce Law Center and a former judge advocate general of the Navy. "And there may be a race to the courthouse among the potential defendants to see who can get the best deal."
If there is a plea agreement, it is likely that only limited evidence, relevant to the appropriate punishment, will be presented.
"The facts are probably not going to be aired at the first trial," said Michael F. Noone Jr., a law professor at Catholic University and an expert in military justice. "Critics of the administration are going to say there is a cover-up here."
Sound prosecutorial strategy, then, in the short term at least, may frustrate the administration's stated goal of showing the world that the proceedings will be transparent.
The trial of Specialist Sivits is set to start on May 19. Trials of the six other American soldiers have not been scheduled. Seven other soldiers who held supervisory roles have received letters of reprimand.
Specialist Sivits will be tried in a somewhat streamlined proceeding known as a special court-martial, as opposed to a general court-martial. The most notable feature of special courts-martial is that the maximum penalty is not particularly severe. At worst, Specialist Sivits faces a year in confinement, a demotion, fines and a bad-conduct discharge.
Even so, the speed of his case has surprised some experts.
"It's clearly attributable to the need to respond domestically, internationally and within Iraq to the demand for justice," said Miles P. Fischer, the chairman of the Committee on Military Affairs and Justice of the Association of the Bar of the City of New York. "It potentially compromises the rights of the accused because of what I'm sure his defense counsel will call a rush to judgment."
Others said the speed of the proceedings was unremarkable. While the abuses came to light only recently, they said, investigations into them have been under way for some time.
"The military tries its cases very quickly," said Lee D. Schinasi, a law professor at the University of Miami School of Law and a former vice dean at the Army Judge Advocate General's School in Charlottesville, Va. "We don't have the crowded docket problems or scheduling problems with private practitioners."
Mr. Hutson said the nature of the case might account for the pace.
"It's not really a terribly complicated case," he said. "You've got pictures, for God's sake."
Holding the trials in Iraq rather than in the United States is also unremarkable, legal experts said.
"It is not at all unusual to conduct courts-martial in the theater of operations," said Ronald W. Meister, a New York lawyer who served in the Judge Advocate General's Corps in the Navy. Mr. Meister said about 25,000 courts-martial were held in Vietnam.
Holding trials near the scene of the crime also makes it easier to secure evidence and testimony, he added.
Those accused in the military justice system are entitled to military lawyers provided by the government, and they may retain civilian lawyers at their own expense. In most other ways, courts-martial mirror the rules of procedure and evidence used in criminal trials in the federal courts.
Except for uniforms, Professor Schinasi said, "it would be invisible to you which was a civilian trial and which was a military trial."
The military has emphasized that the trials will be open to the news media and the public, though not to electronic coverage. None of that is unusual. On the other hand, it is the rare trial that is held, as Specialist Sivits's will be, in the Baghdad convention center.
"There's public and there's public," Mr. Fischer said. "They don't normally hold them in convention centers and print out fliers."
The exceptionally public nature of the trial, coupled with the certainty of no more than mild punishment and the possibility of none at all, may create public relations problems. But there is no prospect, legal experts agreed, that the American authorities would allow the accused soldiers to be tried before an Iraqi or international court.
"Some of these offenses are arguably war crimes," Mr. Hutson said, "but there is no chance that the United States is going to turn this over to a system of justice other than our own."
That is particularly true in Iraq, Mr. Fischer said.
"Occupying powers don't have their troops tried by the occupied country," he said. "That's not how it works."
The case against Specialist Sivits is, of course, only the beginning.
"The more important question is, Where does this end?" Mr. Hutson said. "If this ends with a staff sergeant, and everyone else goes home with a chestful of medals, then we've got problems."
Was Kerry in Iraq, too?
/john
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