Court-Martial of U.S. Soldier for Iraqi Prisoner Abuse

GWEN IFILL:

Some analysis now from Eugene Fidell, president of the National Institute of Military Justice. From what you just Dexter Filkins describe from inside the courtroom today, how typical is that?

EUGENE FIDELL:

In part it is quite typical. You have a guilty plea in a court-martial. What has to happen is the judge has to have a colloquy with the accused, the defendant, about the facts underlying the guilty plea. And simply coming in and saying "I did it" does not mean the judge is going to accept your guilty plea and find you guilty.

The judge has to be satisfied that you know what you are doing, you're making an intelligent waiver of your various rights to have a trial, to have the government to put on evidence that proof beyond a reasonable doubt, all those things that are entailed in due process. So that conversation that Dexter referred to is really quite typical in U.S. courts-martial.

GWEN IFILL:

Are guilty pleas typical?

EUGENE FIDELL:

Yes, there are many guilty pleas in courts-martial. I don't know how the statistics stack up against the civilian system, but it's quite common to have guilty pleas in a court-martial.

GWEN IFILL:

I was struck — maybe it's because we are so used to the civilian justice system — at how quickly this all came to pass. It feels like we just heard about these pictures, these atrocities, if you want to call them that, a few weeks ago and here is the guy pleading guilty just three weeks later.

EUGENE FIDELL:

Well, on one level this case has been rocking along a little bit behind the scenes, so some of this iceberg we haven't been familiar with while it has been developing. But on another level, one of the purposes of the military justice system is to try to administer justice in a prompt fashion so that all those people involved, the witnesses, the other participants can go back to their normal duties and get on with the operation.

That said, the military justice system does not always act with quite this speed. And I think it's fair to say that there is an interest on the part of the government in having a show of activity here, showing some progress towards the administration of justice.

GWEN IFILL:

How would you assess the punishment that was meted out?

EUGENE FIDELL:

Well, the punishment was pretty close to the maximum that the manual for courts-martial described. In theory, the mandatory that Specialist Sivits could have received was 15 months and a dishonorable discharge. Because the case was referred to a special court martial, the ceiling came down to 12 months and a bad conduct discharge.

GWEN IFILL:

What is the difference between a special court-martial and general court-martial?

EUGENE FIDELL:

A special court-martial can only adjudge a year's confinement and a bad conduct discharge, as well as two-thirds of your pay can be forfeited. A general court-marital can impose any punishment authorized under the uniform code of military justice and that can include the death penalty in some cases, although we haven't executed anybody since the early 1960s.

GWEN IFILL:

Is it fair to say he got the more lenient version of the court-martial because of his agreement — that we gather to be his agreement to testify against others?

EUGENE FIDELL:

Yes, apparently a term of the pretrial agreement, the plea bargain in this case was that the charges would be referred to a special court-martial, thereby slightly reducing his exposure. It otherwise would have been 15 months. It's not that much of a difference.

GWEN IFILL:

And can the sentence still be suspended or reduced later once he testifies against the others?

EUGENE FIDELL:

That's absolutely right. In the military justice system the convening authority who is the commanding officer who brings the court-martial into existence has to approve the proceedings and can reduce the sentence below 12 months all the way down or can suspend it in whole or in part.

So there's still a phase of clemency, and perhaps, I don't want to speculate on this, but it is conceivable at least that if this individual's testimony, Specialist Sivits' testimony is extremely productive for the government in other prosecutions, he might get some additional mercy.

GWEN IFILL:

Dexter Filkins made an interesting point about who was in the courtroom or who wasn't in the courtroom today. It wasn't open to cameras like we've gotten used to in this country; it wasn't open to a lot of the public, outside of reporters and the people who are connected to the trial and not to human rights activists. Is that unusual? Is it even a good idea?

EUGENE FIDELL:

Well, it's — first of all human rights organizations don't try to attend most courts-martial. Most courts-martial are held under very obscure circumstances, out of the way places.

I was surprised that the U.S. or international human rights organizations were not afforded an opportunity. I was particularly surprised in an unpleasant way, I must say, at the thought that they were kept out and there were open seats in the courtroom. That, I think, is quite unsound.

I think we're dealing here with an audience that is both Iraqi, more broadly in the Middle Eastern community, Arab community and around the world. A lot of people have a very high level of interest in this, and the human rights organizations should have been there, as well as the media obviously.

GWEN IFILL:

We have seen faces of the fairly low-level soldiers who are now going to – we're going to see their trials progress in the next several weeks but the Los Angeles Times reported today that some of their higher-ups and colonels have already declined to testify how can that happen? It's not the Fifth Amendment as we know it but it's the same result I guess.

EUGENE FIDELL:

It is Fifth Amendment. The Fifth Amendment applies. There is also a comparable provision in the uniform military code of military justice, and people do in the military justice system from time to time invoke their rights. There nothing wrong with it. A properly advised client really ought to invoke the Fifth Amendment in the right circumstances.

GWEN IFILL:

If the bottom line question here is whether these, as you heard the gentleman from soldier's hometown said whether these guys were ordered to do it or they did it on their own, don't you kind of need to hear at some point from the higher-ups?

EUGENE FIDELL:

You absolutely do. And the answer is the government may well have to grant some immunity to some people to secure testimony they would otherwise not be able to get because of the Fifth Amendment.

GWEN IFILL:

Do you have any sense in just talking about this, you're studying this over time, of the amount of international attention being paid to this case, and how critical that might be, what effect that might have on a trial like this?

EUGENE FIDELL:

I think that the level of international attention is extremely healthy. It is certainly not surprising. It would be surprising if it weren't a very high level of attention. I've been involved with military justice since 1969.

I can't think of a case in those years that has been so heavily invested with the public interest in the United States, interest overseas, in fact as I think back over the history of American military justice generally, I can't think of a case that's more important from the standpoint of the need to engender public confidence in the administration of justice. So people are properly interested in this case.

GWEN IFILL:

What is it about this case? Is it just the sensational nature of it — the pictures…

EUGENE FIDELL:

It's a variety of things. It's the sensational nature of the specific allegations, it's the fact that we have technology that cannot only preserve things at relatively low cost, namely digital cameras that anyone can buy these days.

And then the availability of the Internet and computers that can disseminate this kind of evidence around the world in the blink of an eye.

On top of that, of course, you have the extraordinarily volatile environment in which this is all being played out. That, I think, all those things distinguish it from, for example the My Lai case from the Vietnam War. I think everything is sort of at warp speed, at fever pitch and at high volume.

GWEN IFILL:

Any way to know how long this is all going to take to unfold?

EUGENE FIDELL:

I think we are going to be getting our crash course on military justice for months and months and the appeal process, by the way, could last years.

GWEN IFILL:

Eugene Fidell, thank you very much.

EUGENE FIDELL:

My pleasure.