Jeremy Sivits: Fired and Demoted?

Plus, a primer: How do courts-martial work? What are the punishments? Can you appeal?

Update, May 20, 2004: Yesterday, a special court-martial sentenced Army Specialist Jeremy Sivits to one year in military prison, a bad-conduct discharge, and reduction in rank to private. Readers e-mailed to ask, What’s the point of demoting Sivits if he also faces discharge? What does it matter whether he’s a specialist or a private if he’s fired?

Demoting Sivits is a way to reproach him and dish out a pay cut at the same time. Rank carries great meaning within the military, so demoting Sivits symbolically removes what respect and authority he had earned. As for the money, soldiers sentenced to prison time automatically forfeit two-thirds of their pay during the period they spend in prison, according to Article 58 of the UCMJ. Before Congress created this rule in 1996, soldiers continued to earn full pay and allowances during their time in prison. Reducing Sivits in rank means he will earn less money in prison—a private currently makes $1,193.40 per month in base pay, while a specialist with four years of service makes $1,814.10 per month in base pay.

Army Specialist Jeremy Sivits pleaded guilty today to a special court-martial for charges that he helped abuse Iraqi detainees at Abu Ghraib. Six of his peers will face general courts-martial starting this week for their acts at the prison. How exactly does a court-martial work?

Most aspects of a court-martial would look familiar to any civilian lawyer but just different enough to make him or her uncomfortable. Military law applies in military courts, not the federal criminal code. Senior commanders hold the power to prosecute, select judges, pick juries, and approve verdicts. Uniformed judges preside over the court. And the hand-picked jurors, known as “members,” are officers (and sometimes sergeants, if the accused is enlisted).

Military courts administer the Uniform Code of Military Justice. Like the federal criminal code, the UCMJ contains a laundry list of criminal offenses, from violent crimes like murder and assault to uniquely military crimes such as failure to obey a lawful order.

Courts-martial are run by a military commanders who are ultimately agents of the president and the executive branch, not the judiciary. In addition to their day jobs as combat leaders, these commanders become “convening authorities” when one of their troops is accused of a crime; they are responsible for overseeing the court-martial (if there is one) and approving its verdict.

Before a general court-martial happens, the case goes to an “Article 32” hearing, roughly analogous to a grand jury proceeding. Here, an investigating officer reviews the evidence to see if there’s enough to proceed with a court-martial. The defendant can cross-examine prosecution witnesses and even introduce his own evidence to try and prevent the case from going forward—not the case in a grand jury proceeding,

If the case goes forward, a military judge is selected from the ranks of the Judge Advocate General corps; these are usually veteran courtroom advocates with several years of trial experience. Additionally, nearly all military lawyers serve as both military prosecutors (known as “staff judge advocates”) and military defense attorneys, so they’ve seen both sides by the time they’re appointed to the bench. The military judge has authority to decide matters of law—like admissibility of evidence—just as in a civilian court. His or her decisions can be appealed, too, through military courts of appeal to the U.S. Court of Appeals for the Armed Forces and sometimes all the way to the Supreme Court.

Just as in a criminal court, verdicts get doled out by juries. In military cases, jurors are picked by the convening authority and typically work in the same unit as the accused. (Rule 104 of the Manual for Courts-Martial, however, makes it a crime for the commander to tell the jurors how to vote or to retaliate against them after the trial.) Enlisted personnel, like Sivits and the other six soldiers accused so far, have the right to have at least one-third of the jury members be sergeants (enlisted personnel who have worked their way up the ranks)—something more like a jury of their peers. In all but capital cases, military juries need only a two-thirds vote for a conviction  (capital cases require a unanimous verdict).

In some cases, the right to a jury is sharply curtailed—or even dispensed with altogether. “Special” courts-martial, like the one Sivits pleaded guilty in today, include a limited right to a small jury of three members. (The other six Abu Ghraib defendants are slated to face “general” courts-martial, which handle more serious crimes and can issue tougher sentences.) Special courts-martial can also be convened by lower-ranking commanders than general courts-martial.

The military also has an administrative court procedure known as “non-judicial punishment” or “Article 15,” in which a commanding officer serves both as judge and jury with extremely limited rights of due process and appeal. Article 15 procedures are limited to minor offenses, such as missing duty in peacetime, and mete out punishments such as extra duty and rank reduction, but not prison time.

Military courts can sentence soldier to death, as Explainer discusses here. The UCMJ authorizes capital punishment for murder and 14 other crimes, including espionage and aiding the enemy; most of these crimes must be committed during wartime to warrant execution. At most, Sivits faces one year in prison, reduction in rank, loss of pay, and a bad-conduct discharge, because that is the maximum sentence allowed for a special court-martial.

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