The Wheels of Military Justice . . .

The Weekly Standard ^ | May 24, 2004 | Barry D. Halpern

[RWR8189]

The pitfalls of speedy court martial trials.

THE UPCOMING COURT MARTIAL trials in the Abu Ghraib detainee abuse cases may have consequences neither intended nor anticipated by the military and civilian authorities who are pushing for a quick and decisive resolution of the affair. These trials--the first is scheduled to begin May 19 in Baghdad--will not be drumhead proceedings with preordained guilty verdicts. Unless the investigations that preceded the public disclosures of abuses result in early plea agreements, the cases may get ugly, complicated, and tedious. Especially as the trials seem to be proceeding hastily. If military authorities have followed normal procedures for processing serious cases, the Abu Ghraib prosecutions are at about the stage of the Kobe Bryant case, which is months away from trial.

The old post-Vietnam saw that "military justice is to justice as military music is to music" is long out of date. Today's military justice system operates under a well-developed body of federal law, with procedures and prosecution standards that largely mirror civilian practice. The Judge Advocate General (JAG) departments of the service branches attract and retain well-credentialed professionals who are both lawyers and military officers--in that order. Military trial lawyers come from some of the country's best law schools and are well trained at JAG schools and civilian post-graduate programs. They often have more trial experience than their civilian colleagues, and they're every bit as zealous in the representation of their clients. (At Guantanamo Bay, military lawyers ignored Department of Defense protocol in petitioning civilian federal courts on behalf of their internee clients.)

Military defendants enjoy essentially the same rights as civilian defendants. The Uniform Code of Military Justice provides defendants with military counsel (often selected by the defendant), access to civilian defense counsel, broad discovery rights assuring access to the prosecution's exculpatory information, and multiple levels of judicial and administrative appeal. Military juries, composed of service members, bring to the courtroom stronger educational backgrounds than a typical civilian jury and, in most instances, a professional ethic that assures adherence to the law regardless of the presumed expectations of the commander who convened the court martial.

With all of these tools available to defense counsel, the Abu Ghraib trials may generate more fireworks than O.J. and Martha. A race to the courtroom to showcase the "swift justice" promised by the president could have unpredictable and potentially damaging consequences. Unless the military prosecutors have ironclad cases or have secured plea deals, the Abu Ghraib courtrooms could become yet another vexing campaign in an already tough war. Dismissals or acquittals resulting from procedural errors would hardly enhance the world's impression of the American system of justice.

Consider the serious challenges facing prosecutors and senior officers throughout the chain of command. The glare of the world's media will limit the disciplinary choices. Administrative discharges under less than honorable conditions, which would normally resolve some of the cases, will invite cries of a cover-up. "Non-judicial punishment," a trial-avoiding option in military law, might have been effective in dealing with marginally involved participants, but the relatively light penalties it allows probably won't play well in the United States or the Middle East.

All this leaves prosecutors in a tough situation. Trials in a war zone pose security, intelligence, and public disclosure problems seldom faced by civilian lawyers and judges. The military justice system is nevertheless expected to function efficiently, fairly, and quickly. But the outcome is highly unlikely to be made into a tidy drama starring Tom Cruise and Jack Nicholson. When relatively low ranking enlisted personnel are thrust into the center of a media storm, neither they nor their lawyers are going to acquiesce in a double-time march toward easy convictions.

The defense teams will have much to discuss with the military judge about the location of the trial in the midst of a hostile population stirred up by florid media coverage and shocked expressions of outrage from every corner of the military establishment. The extraordinary level of pretrial publicity will be grist for defense motions that could untrack the prosecution. The defense lawyers may also demand the sworn testimony of senior military officers at various command levels and civilian intelligence officers whose roles and responsibilities at the prison seem to baffle even the Pentagon's highest ranking officers. Things could really get interesting if recently released detainees testify.

In cases as politically charged as these, the impartiality of the military justice system will also be tested, as the interests of justice are precariously balanced against the exigencies of war under intense media scrutiny. Whether the military justice system can function effectively in this unprecedented atmosphere remains to be seen.

Let us grant that there is much about these cases that we won't know until the trials start. It may turn out that the prosecution has been punctilious in ways that will validate the Defense Department's handling of the Abu Ghraib affair in the months before the allegations of abuse became a worldwide spectacle. Although the Pentagon has been condemned for disclosing so little, so slowly, the court martial trials may reveal a careful and deliberate investigation conducted quietly to comply with legal requirements and build solid cases against the abusers. If the prosecution's evidence, compiled since January, anticipates and overwhelms the defense positions, the trials may proceed smoothly with evidence and testimony that could have been tainted and inadmissible if revealed in advance.

Either way, those hoping for the catharsis of quick and decisive prosecutions are likely to be frustrated by the military justice system's comprehensive procedural safeguards. Although the pace of investigation and prosecutions may seem painfully slow to the political classes, speeding the process and disclosing evidence prematurely in hopes of catching a public relations break would have been the worst approach of all. Even now, rushing the cases to trial to bring closure to the story could be a serious mistake. The last thing we need are missteps by the investigators, command authorities, and the military prosecutors that cast doubt on the verdicts.

Barry D. Halpern, a trial lawyer with the Snell and Wilmer law firm in Phoenix, Arizona, has served in the U.S. Air Force Judge Advocate General Department.

[MonroeDNA]

The dems want to drag it out.

They HATE the military.

And it exposes them to comparison with the long, drawn out, 16 year death row thing.