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Legal Options for Prosecuting U.S. Military Members Accused of Iraqi Abuse

May 10, 2004 at 12:00 AM EST
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RAY SUAREZ: The man who reportedly took some of the now famous photographs from Abu Ghraib Prison will be the first U.S. soldier to face a special court-martial for his actions. He is U.S. Army Specialist Jeremy Sivits, a 24-year-old mechanic from Hyndman, Pennsylvania. Sivits is charged with maltreatment of detainees, conspiracy to maltreat, and dereliction of duty.

The maximum penalties for these charges are one year of confinement, a reduction in grade, forfeiture of pay for a year, a fine, or possible discharge from the army for bad conduct. Sivits is one of at least thirteen soldiers who may have been involved in the prison abuse.

Six face criminal charges, and six have already received career-ending letters of reprimand. The attorney for one of those charged, Specialist Charles Graner, appeared on ABC’s “This Week,” and said his client acted under orders.

GUY WOMACK, Attorney for Spc. Charles Graner: Specialist Graner is the man to his far left with his hands on his hips. The man to his left in the middle of the screen with his hand on the neck of a prisoner is a civilian contractor with the intelligence community – it’s an unusual looking photograph.

GEORGE STEPHANOPOULOS: So you’re saying this was all being done, this photo at least, at the direction of intelligence officers?

GUY WOMACK: Directly under the observation of and at the order of intelligence officers.

RAY SUAREZ: Military proceedings against Specialist Sivits will take place at the Baghdad Convention Center next week. At a briefing today Gen. Mark Kimmitt said the proceedings would be open to the media, but not to television cameras.

GEN. MARK KIMMITT: It’s a practice of the U.S. Military in an open hearing we allow family, we allow observers, we allow print reporters. It has not been our practice in the past to allow cameras inside. I think there is a concern that this is not a show trial.

RAY SUAREZ: While the Defense Department will oversee prosecution of the soldiers, the Justice Department will prosecute cases involving civilian contractors.

ATTORNEY GENERAL JOHN ASHCROFT: For individuals who are not in the military, for example, who are not under military jurisdiction, the Justice Department can have jurisdiction; for individuals who may be contracting with the military but not military, for example; for individuals who may have conducted themselves in a way which might have infringed the law, but whom are no longer in the military, there would be Justice Department jurisdiction.

RAY SUAREZ: No charges have yet been filed against the contractors allegedly involved in the abuse.

RAY SUAREZ: We get more on the military and civil legal options for prosecution from Harold Hongju Koh, incoming dean and professor of international law at Yale University Law School and Eugene Fidell, president of the National Institute of Military Justice. Gene Fidell, what is a court martial?

EUGENE FIDELL: A court martial, Ray, is simply a criminal trial conducted by the military with respect to members of the military.

RAY SUAREZ: Now in this first case of Specialist Sivits, it was pointed out that this is a special court martial and not a general court-martial. What’s the difference?

EUGENE FIDELL: Right. A special court-martial is limited in what it can adjudge in terms of punishment. The special court-martial can adjudge only one year’s confinement or a bad conduct discharge as a way of throwing a person out of the military. A general court-martial can adjudge any sentence that’s permissible by law up to and including the death penalty.

RAY SUAREZ: As in civilian courts, do members of the military have the presumption of innocence?

EUGENE FIDELL: Yes, they absolutely have the presumption of innocence, and in any military trial, the government has the burden of proof beyond a reasonable doubt. So in important respects it’s just like a civilian criminal trial.

RAY SUAREZ: Can members of the military subpoena up the chain of command, and try to present evidence that they were told to do the things that they’ve done as a defense?

EUGENE FIDELL: Yes. If that’s going to be one of the allegations, they have a right to compulsory process. They can require witnesses to be summoned and they can have documents subpoenaed. So again, the usual panoply of tools that people have in civilian trials are available to the military defendant.

RAY SUAREZ: Professor Koh, the United States of course is a signatory of the Geneva Conventions. In a case like this, are the articles of that convention triggered? Are there some norms that the United States has to follow?

HAROLD HONGJU KOH: Yes. Whether these detainees are treated as prisoners of war or security detainees under the occupying force, either way the United States has an obligation not to subject them to cruel, inhuman, or degrading treatment. There’s another treaty, the torture treaty, which the United States is a party to, which also says that U.S. officials shall not subject people in their custody to cruel, inhuman, or degrading treatment. So the obligations are pretty clear under international law.

RAY SUAREZ: Now “torture” is a term that’s used quite freely to cover a wide range of behaviors. Is there a definition that everybody can work with, that you can use as a determinant to decide whether the torture laws apply in this case?

HAROLD HONGJU KOH: Yeah, there’s quite a detailed definition in the torture treaty, which has been also included in various provisions of U.S. law. I think the important thing here is that the line between torture and non-torture is not a critical one, because that treaty forbids torture and cruel, inhuman, or degrading treatment. And whatever we think about what’s going on, it’s definitely degrading treatment and would fall within the scope of these international prescriptions.

RAY SUAREZ: Gene Fidell, does it complicate matters that there were also civilians involved in the treatment and the oversight of these prisoners?

EUGENE FIDELL: Well, yes, it does in a way because there may be some aspects of this that wind up being litigated in the military justice system and other aspects, maybe the next person in the photograph, for example, might wind up in a federal district court under something called the Military Extraterritorial Jurisdiction Act, or the torture provision that Professor Koh, Dean Koh referred to just now. So you might have separate aspects of essentially the same transaction playing out in different courtrooms thousands of miles apart.

RAY SUAREZ: Well, you’ve mentioned civilians going into civilian courts. Are there possibilities, under the way the law is written right now, for civilians to end up in military courts?

EUGENE FIDELL: Well, on paper there’s a provision in the uniform code of military justice that permits, in time of war, persons who serve with or accompanying the armed forces in the field to be prosecuted in a military court. But under a series of decisions dating from the 1950s, there was a serious cloud over that provision, and I think there’s sufficient clouds over it that no prudent military prosecutor would bring such a case into court, particularly since Congress passed the Sessions Act in 2000 to plug some of the gaps that the Supreme Court had created in the ’50s through 1960.

RAY SUAREZ: There was no congressional declaration of war in this case. Does that complicate matters under the way the law is written now?

EUGENE FIDELL: No, but that’s pertinent, Ray, to your last question. There was a decision in 1970 in a case that arose out of the Vietnam War under the clause that I mentioned just before that I think had to do with a merchant mariner. And in that case the then court of military appeals, it’s now called the U.S. Court of Appeals to the Armed Forces, held by a vote of 2-1 that in order to bring a civilian within that clause the time of war had to be such that the result of a congressional declaration of war, and we haven’t had a congressional declaration of war in this current hostility.

RAY SUAREZ: Professor Koh, does the state of Iraq play into this at all in legal terms? There’s no fully-functioning civilian government or Iraqi administration through much of the country right now, so the United States is providing a lot of the services that make up a legal system.

HAROLD HONGJU KOH: Well, the U.S. and its allies, the Coalition Provisional Authority, are functioning as an occupying power and they have obligations under the Geneva Conventions. But I wouldn’t get carried away with how complicated this is going to be. There are two big points that can’t be ignored. One is that war crimes law changed after World War II, so you can’t simply point fingers and get away with it. Before Nuremberg, people who committed the crimes, actually physically did the acts, would say “I was just following orders,” and people who ordered them would say “we didn’t know what was going on.” What Nuremberg made clear was everybody is responsible — the people who did it and the people who ordered it. And so you can’t simply point the finger at someone else and escape liability.

The second point is that whatever we know about Private Jeremy Sivits, he is not the person who created the culture of condoning these kind of acts which made this possible. None of the American soldiers in the picture seem to be afraid or to be embarrassed about what they were doing. They were clearly operating in an environment in which what they were doing was not just permitted but actually encouraged, and that means that somebody higher up created that environment. And those are the people who we really need to know who they were, what kinds of orders were given which made our ordinary foot soldier so contemptuous of the basic human rights of these detainees.

RAY SUAREZ: Gene Fidell, isn’t that where it gets difficult? I mean, nobody is going to say “oh yes I told them to do exactly that,” are they?

EUGENE FIDELL: No, I would be surprised if that were the case. But I think the point that Professor Koh just made is the important one. What you’re talking about is climate and the kinds of responsibilities that are imposed by the law on commanders.

Oftentimes what you’re looking at are questions of dereliction, of failure to exercise due care in the circumstances– what did the commander know, or what should the commander reasonably have known? There’s a kind of vicarious liability, in fact, on the part of a commander for acts performed by his or her subordinates. The most famous case of this probably is the case of General Yamashita, who was the Japanese commander– I think I’ve mentioned him before on the show — who was hanged after World War II. He was the commander in the Philippines, and was effectively held responsible for misconduct on the part of his subordinates.

What these cases raise is the question of how responsibility should be assigned. What kind of punishment regime should apply to what are effectively crimes of command, crimes of oversight, crimes of carefulness or lack of carefulness?

And thus far the U.S. military has tended to use administrative sanctions such as a reprimand or non-judicial punishment. That may strike people as unfair in a case like this, where you have people at the lower end of the official hierarchy who are being taken to courts-martial, whereas people at the upper end are going to get reprimands and then probably permitted to retire. And the juxtaposition of those two outcomes may raise some questions as to whether we should move to a more formal or move back to a more formal process of using courts martial to punish senior officers.

RAY SUAREZ: High-ranking civilian and military officials, Professor Koh, have promised transparency, public accountability. Is the United States obliged to provide those under the Geneva Convention?

HAROLD HONGJU KOH: Yes. I think the Geneva Conventions have to be enforced not just by the Red Cross going in, but also by those who are doing the detaining permitting their sites to be inspected and violations to be determined. I think the thing to remember, Ray, is that as shocking as these photos are, human rights lawyers have seen this kind of thing before. What you see the man standing on the box with his hands wired is part of a well-established interrogation technique.

What clearly happened is that this group of people were told: Set these people up for interrogation; don’t treat them as if they’re prisoners of war who are entitled only to give their name, rank, and serial number, and it’s that act which is saying these are not people to whom the Geneva Conventions apply. That was a fundamental decision that was made. And Gene is absolutely right, the question is should commanders — did they know or should they have known that excluding these people from the Geneva Conventions would create this kind of culture of abuse? If they should have known, they’re responsible.

RAY SUAREZ: Gene Fidell, is there an expectation on your part that a lot is going to come out in court about what people were told about interrogation standards, how hard you could press people, the ideas that were generated inside the American military as the war on terrorism began? Is this going to be a sort of public moment for things that often civilian populations don’t hear a lot about?

EUGENE FIDELL: I think you’re absolutely right on that, Ray. I think there are going to be some challenging legal issues presented to the military judge who presides in this and related cases in terms of how broadly to allow the defense to cast its net. On the question of photography, by the way, if I can for a second, photographs have only been around for a little more than a century and a half, but they’ve been very potent in wartime, really, since the Civil War and Matthew Brady. Only within the last few years there was an exhibit in Germany of photographs that were taken by German soldiers during World War II that caused a tremendous controversy, because they showed some really unspeakable acts. It shows the power of the image, and I think we’re going to see that played out, but with the ratcheting up associated with the digital age where anybody with $100 can get a digital camera and send things over the Internet.

RAY SUAREZ: Gene Fidell, Professor Koh, thank you both.