Military justice

Deutsche Welle: What type of military courts and processes exist in the United States?

Eugene R. Fidell: There are different legal paths for the military to prosecute offenses, such as the court martial, with the Bradley Manning  and Nidal Malik Hasan cases being two current examples,  and the military commission like the one handling Guantanamo.

So a court martial is strictly for prosecuting offenses by military personnel?

A court martial is a trial conducted within the military and ordinarily for military personnel. However, US law permits civilians to be tried by a court martial under very narrow circumstances. For instance, a civilian contract interpreter, who happened to be an Iraq-Canadian dual national working for a US company alongside soldiers, was recently prosecuted for an assault he committed in Iraq. 

How do courts martial differ from civilian courts?

Courts martial are ad hoc bodies. Any number of courts martial are called into being by military commanders. A court martial is much like a federal trial but there are some important differences. It is presided over by a military judge, who is a military officer with legal training. There are lawyers on both sides. The burden of proof is the same as the normal burden of proof under the US constitution, which is proof beyond a reasonable doubt. The strict rules of evidence apply.

Who initiates a court martial and how far can a case go?

Court martial cases are subject to review, first of all, by the military commander. Those with a significance sentence, meaning a year or more of confinement, go to an appellate court of military officers. From there, they can go to a civilian court, called US Court of Appeals for the Armed Forces. Potentially, a case can go the Supreme Court of the United States, although the Supreme Court takes very few military cases - one every few years.

What about the jury?

Except in capital punishment cases, the jury in a martial court is smaller than in a civilian court – it can be as few as three people. It is composed of military personnel who are ordinarily officers. If an enlisted solider wants enlisted personnel on the jury, then the commander must put at least one third enlisted personnel on the jury. These people are not selected at random but rather by the commanding officer. That's a significant difference to civilian juries.

How about the judges?

Military judges don't have the kind of protected tenure that regular federal judges have. Federal judges are for life with no retirement age. They serve as long at they wish. In the military, there is no statute that gives judges a term of office. Only two branches of the service, the army and coast guard, have given judges brief three-year terms of office. In the other branches, judges serve at will and can be transferred at any time.

What do the sentences look like?

The maximum sentencing powers in the military extend to the death sentence. The military has a number of people on death row at the moment. But there hasn't been an execution since 1961 - for a case that occurred in occupied Austria. In the military, a death sentence, which is conducted by lethal injection, cannot be carried out without the personal approval of the President. And presidents are very slow to approve death sentences.

And how about the voting rules for juries?

In the military, juries don't have to be unanimous, except in death penalty cases. In the normal case, all it takes to convict is a two-thirds vote, and to sentence a person to more than 10 years requires a three-quarters vote. Hung juries, or juries that can't become unanimous, aren't possible.  What happens is that if the necessary vote is achieved, the person is convicted. If the necessary vote is not achieved, the person is acquitted.

What kinds of offenses can be prosecuted in a court martial.

In the US, it's not only the usual military offenses that can be prosecuted but also things like arson, murder, bank robbery and even tax evasion. In the 1980s, our Supreme Court had a case that involved a question of whether a non-service-connected crime could be prosecuted by a court martial and the Supreme Court said yes.

Can someone be tried in both a martial court and a civilian court?

Our federal system treats the states and the federal government as different sovereigns. So a person can be prosecuted in a court martial and also in a state court for the same crime. Although this practice is discouraged, it's perfectly legal under current Supreme Court doctrine.

Who determines which court takes the lead?

The military tends to want to take care of its own cases. It will typically tell local prosecutors, "Look, we'll be happy to prosecute John Doe for this murder." And, ordinarily, the district attorney will say, "Fine, one fewer case for me." But if it's a notorious case, the local prosecutor may say, "Well, I've got this guy and I'm going to prosecute first." The two parties are free to negotiate as there is no statute governing this. And they ordinarily work it out. Sometimes, if the military believes that the civilians haven't done a good job and acquitted a person whom it believes to be guilty of a crime, it might prosecute that person after an acquittal. I know of at least one case of a man who was tried in a state court and convicted but whose conviction was later overturned on some legal grounds. After more than 10 years, the military found DNA evidence and turned around and convicted the person.

And where do convicted military personnel serve their sentence?

The military runs its own prisons. It has one maximum-security prison, called the United States Disciplinary Barracks, in Fort Leavenworth, Kansas, and other correctional facilities around the country.  Very long-term prisoners are sent into the federal prison system.

Is there any other particular aspect of US courts martial worth mentioning?

Currently, the statute permits military trials for certain retired personnel receiving retirement pay. The power, which is used rarely, obviously would not satisfy the European Court of Human Rights. It's contrary to international human rights standards. Our system does not comport with Strasbourg standards. It's way short of these standards.

And what about differences between a court martial and military commission?

A military commission in the US is an extraordinary court to prosecute not our own people but enemy combatants. Most typically, since 9/11, it's been used - and arguably not very well - to prosecute unlawful combatants, notably Al Qaeda and Taliban people. The system has been widely criticized and is not very effective.

Are there any differences in procedures between a court martial and a military commission?

They are similar in that they both have lawyers and a judge. But a military commission can only prosecute offenses against the law of war. That has created a lot of issues because the courts have held that material support for terrorism and conspiracy are not war crimes. These are very current issues in the US legal system because if those holdings are right, essentially none of the military commission cases can proceed.

How close are we to seeing a decision?

The US Court of Appeals in Washington DC plans a hearing in early September with all judges expected to attend. This case will likely go to the Supreme Court.

And what does this mean for the military?

It may be the end of the military commissions. We'll see.

And for you?

I teach military justice at Yale law school and I co-teach a course on Guantanamo. So we're going to have a very exciting semester.

Eugene R. Fidell is the Florence Rogatz Visiting Lecturer in Law at Yale Law School. He is a co-founder and former president of the National Institute of Military Justice.