Backgrounder: U.S. Military Courts

On May 20 the first of seven U.S. soldiers facing charges for the abuse of prisoners at the Abu Ghraib prison in Iraq was sentenced to one year in military prison, discharge from the military, and a reduction in rank. The trial and sentencing of Army Specialist Jeremy Sivits was conducted under legal procedures for addressing criminal offenses committed by those in the military.

Although the U.S. military's legal process exists independently from U.S. civilian/criminal law and courts, a closer look at military courts demonstrates that they are very similar to civilian courts.

"The trial process in the Military is almost identical to the trial you would find in a U.S. civilian court," said Judge Eugene R. Sullivan, retired chief judge of the U.S. Court of Appeals for the Armed Forces. "The process -- the opening statements, the right to cross examination, the right to confront your accusers, and the instructions from the judge-- are almost identical."

Military courts are guided by the Uniform Code of Military Justice (UCMJ), which lists criminal offenses that may be tried by the court. Offenses include serious crimes such as murder and assault, as well as military-specific crimes such as failure to obey an order from a superior officer.

The term "court-martial" refers to the investigation, trial and punishment of members of the armed forces accused of breaking the law. Three types of courts-martial exist: summary, special and general, and are applied depending on the severity of the crime committed.

A summary court-martial is reserved for lower-ranking military personnel charged with minor offenses. Punishment is limited to no more than 30 days confinement, loss of pay or reduction in rank.

A special court-martial addresses misdemeanors and can apply punishments including jail time, loss of pay and discharge from the military. Soldiers being tried by special courts-martial have a limited right to a small jury of three members of the military chosen by senior commanders.

Army Specialist Sivits was tried and convicted by a special court-martial in the Abu Ghraib prison scandal due to his limited involvement and cooperation with authorities. Defendants in a military trial have a right to plea bargain -- agree to a lesser sentence in exchange for cooperating with authorities -- just as in the civilian system.

Those charged with the most serious crimes face a general court-martial.

Six of the seven soldiers accused of crimes connected with Abu Ghraib will likely face general courts-martial, which can impose the most severe penalties. (The death penalty, however, is reserved for murder and other crimes including espionage and aiding the enemy during wartime.)

In a court-martial proceeding, the accused is guaranteed free legal representation by a military defense lawyer. The accused also may retain his or her own civilian counsel.

The general court-martial process includes a jury of as many as 12 members of the military who are chosen by the convening authority and often serve in the same military unit as the accused.

The court-martial members must be officers (supervisors and managers) and therefore college educated. However, if the accused is enlisted personnel (regular soldiers), he or she has the right to a jury of which at least one-third of the members are sergeants -- who are high-ranking enlisted personnel -- so that the jury includes more of the defendant's peers.

After an investigation, evidence of the crime is presented to a military judge who then decides if enough evidence exists to proceed with a trial. This "Article 32 hearing," analogous to a grand-jury investigation in civilian law, gives the defendant the opportunity to cross-examine prosecution witnesses and introduce evidence so as to prevent the case from proceeding -- rights not available to the defendant in a civilian grand jury proceeding.

If the case does proceed, a judge is selected from group of experienced courtroom attorneys with several years of experience known as the Judge Advocate General Corps. Typically, many of these military attorneys have served as both prosecution and defense lawyers in the military legal system. The judge will be given the power to decide matters such as which evidence the jury will be allowed to hear.

Unlike civilian criminal cases, where a guilty verdict in a criminal case must be unanimous, only two-thirds of the members of the military jury has to agree on a verdict. Further, sentencing of the prisoner, which in a civil criminal case occurs weeks or months after the verdict is handed down, is done immediately following a guilty verdict in a military trial.

If the accused is found guilty of a crime and is sentenced to confinement for a year or longer, or discharge from the service, there is an automatic appeal process that may reach the U.S. Court of Appeals for the Armed Forces or even the U.S. Supreme Court.

The appeals process, like most other practices and procedures in a military trial, is almost identical to that of a civilian trial, according to Judge Sullivan. "If you close your eyes and you were brought into a military court, you wouldn't be able to distinguish if you were in a military court or civilian court in most instances," he said.

By Alexandra Abboud
Washington File Staff Writer