CIAO DATE: 08/04

Law Watch: First Abu Ghraib Prisoner Abuse Court Martial

Steven C. Welsh

Center for Defense Information

May 2004

Even as questions remain over how far accountability ultimately will extend, in the first court martial over atrocities at the Abu Ghraib U.S. military prison, military policeman Specialist Jeremy C. Sivits, on May 20, 2004, pled guilty under a plea bargain. Sivits, an Army reservist, received a one–year prison sentence, a reduction in rank to Private E–1, and a bad conduct discharge. Under the plea bargain, he will testify in future prosecutions against others charged as perpetrators.

Formal charges filed against him declared that on or about Nov. 8, 2003, at or near Abu Ghraib, Sivits conspired with six other U.S. military personnel to violate the Uniform Code of Military Justice (hereinafter “UCMJ”) by engaging in the “maltreatment of subordinates” (i.e., detainees). The charges indicated that in order to “effect the object of the conspiracy” Sivits photographed nude detainees forced into a human pyramid. (Charge Sheet, Jeremy C. Sivits, May 5, 2004 (hereinafter “Sivits Charges”). His testimony also revealed that he led one of the detainees and forced him into the pile, although he alleged that at that point the detainees were still clothed.

Sivits pled guilty to four counts — conspiracy to maltreat detainees, two counts of maltreatment of detainees, and dereliction of duty.

Orders and Duty

Sivits was charged with dereliction of duty in violation of Article 92 of the Uniform Code of Military Justice, which reads:

Any person subject to this chapter who – (1) violates or fails to obey any lawful general order or regulation;

(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or

(3) is derelict in the performance of his duties;

shall be punished as a court–martial may direct.

(10 USC Sec. 892 (emphasis added).)

Far from the prospect of reviving the Nuremberg non–defense of “just following orders,” the Sivits charges indicated quite the opposite — not only that Sivits should have refrained from illegal activity, but that he was under a duty to intervene to protect the detainees:

. . . Sivits . . .who should have known of his duties at or near . . . Abu Ghraib . . . was derelict in the performance of those duties in that he negligently failed to protect detainees from abuse, cruelty and maltreatment, as it was his duty to do so.

(Sivits Charges)

In other words, Sivits’ failure to actively intervene to protect the detainees against illegal behavior was itself being equated with the failure to follow valid orders, in that it was his duty to protect the detainees and, put simply, he failed to do his duty.

Procedures and Future Court Martials

The Sivits prosecution was a “special court martial,” a procedure for which the maximum penalty is one year's imprisonment, reduction in rank, and a bad conduct discharge. A special court martial contrasts with a “general court martial” in that a general court martial may result in more serious punishment and a dishonorable discharge. (There also are procedural differences, such as a pretrial hearing, and other differences which become more relevant if a defendant pleads not guilty and forces the prosecution to prove its case.)

It may be that other military defendants prosecuted for Abu Ghraib atrocities will receive general court martials.

One can surmise that Sivits’ involvement with the atrocities was considered less egregious than that of the others, for which, under the plea bargain, Sivits was prosecuted first and provided a procedure that would result in a lighter sentence — even if it was the maximum for that procedure. Sivits still must be available to testify truthfully in subsequent prosecutions.

Commander Role, the Possibility of Clemency, and Plea Bargains

The decision to send the case into a special court martial belonged to the commander, who is termed the “convening authority” ordering the court martial, although he otherwise is not directly involved with the initial proceedings. In this case, the relevant commander is Lt. Gen. Thomas Metz, USA, Multi–National Corps., Iraq, and III Corps (U.S.).

As in this case, the commander’s decision to send a matter into a special court martial rather than a general court martial can be part of a plea bargain.

After a conviction, the commander also has the authority to adjust the sentence or even overturn the conviction, or remove some of the charges. In the case of a plea bargain, it can also be the case that a reduction of the sentence by the commander is part of the pre–trial agreement.

Once a transcript from Sivits’ court martial is prepared and reviewed by the judge for accuracy, it will be forwarded to Metz for any action he chooses to take.

Appeals Process and Possibility of Change to Sentence

With the level of punishment currently set for Sivits, even with his guilty plea there also will be an automatic appeals process involving at least one appellate court.

The automatic appeal will be to the appellate service court associated with the relevant branch of the military, in this case the Army Court of Criminal Appeals. Like the commander, that court would have discretion to adjust the sentence, and may review both matters of law and matters of fact, based upon the record from the trial.

There is also the possibility that, if the sentence is affirmed, the case could be forwarded to the U.S. Court of Appeals for the Armed Forces.

The time frame for the appeals process is unpredictable, and with sentences beginning upon conviction, it is theoretically possible that Sivits could serve his entire year in prison before the appeals process is completed. On the other hand, the fact he pled guilty could expedite review because it means there is less to review.

Sivits was convicted roughly four months after the Abu Ghraib investigation was initiated, and two months after he himself was charged, and he already is in confinement. However, given the various levels of appeals, there is the possibility that his sentence, or even his conviction, could be adjusted some number of months in the future.

The Sivits court martial took place in Baghdad, a fact praised by a member of the Iraqi Governing Council who nevertheless would have preferred to see Iraqi judges involved with the proceedings.

It may bear noting that Sivits, and three other defendants arraigned thus far in connection with Abu Ghraib atrocities, are reservists from rural Maryland. It remains to be seen if that aspect of the Abu Ghraib cases draws closer attention to the strategy of deploying large numbers of guardsmen and reservists into a war zone for periods of time that arguably treat them as if they had enlisted as full–time military. From a military justice viewpoint, it also may mean that sentencing authorities feel the need to not be lenient, not only because of the heinous nature of the abuses — that is, if the particular individuals involved in fact are themselves found to be guilty of participation — but also because of a real and perceived need to stress that all military are required to be subject to the same discipline, standards, and requirements of U.S. and international law.

Sources and Further Reading:

“Appellate Review of Courts–Martial,” U.S. Court of Appeals for the Armed Forces

Luke Baker and Alastair Macdonald, “Soldier Gets Year Jail Term for Iraq Prisoner Abuse,” Reuters, May 19, 2004

Charge Sheet, Jeremy C. Sivits, May 5, 2004

A Senior Military Lawyer, “Background Briefing — Uniform Code of Military Justice and Court Martial Procedures,” Department of Defense News Transcript, May 19, 2004

Peter Hermann, “Soldier gets year in prison in Iraq abuses: Sivits was Army reservist in Md.–based MP company,” Baltimore Sun, May 20, 2004

10 USC Sec. 892 (UCMJ Article 92)

“Update From Court–Martial of Soldier,” U.S. Central Command News Release, May 19, 2004