Remarks by Bush, Rumsfeld may have jeopardized fair trial for troops


As they scrambled to appease the Muslim world with sharp rebukes of the U.S. soldiers accused of mistreating Iraqi prisoners, President Bush and Defense Secretary Donald H. Rumsfeld may have jeopardized a basic protection of military law - the idea that commanding officers should not prejudge cases where they ultimately could determine a soldier's fate.

In the hierarchical world of the military courts, it is the doctrine known as "command influence." And in the growing abuse scandal, military lawyers and legal scholars say efforts over the past few days to salvage America's image in the Middle East may have come at the expense of basic fair trial rules for the accused soldiers.

"Usually, command influence is a rather subtle affair," said Jonathan Turley, a constitutional law professor at George Washington University who has represented defendants in military court. "This is screaming it from a mountaintop."

Amid rising public outcry, Bush apologized yesterday for the abuse of Iraqi prisoners, saying, "The wrongdoers will be brought to justice." Rumsfeld, who is expected to testify before Congress today, has called the soldiers' actions "un-American."

The comments were all but demanded to calm what has become a foreign policy nightmare for the Bush administration. But they present a potential problem in the military court system, where the president, as commander in chief, and the defense secretary could end up reviewing the charges against six reservists from the 372nd Military Police Company based in Cresaptown, Md., as well as any possible convictions in the case.

"Can they get a fair trial? Yes. Will they? Not unless there is some significant damage control," said Donald G. Rehkopf Jr., a civilian military lawyer from Rochester, N.Y. "If [U.S. leaders] are prejudging the case, that causes real problems."

Pretrial publicity is an issue in every high-profile criminal case. In civilian courts - at both the state and federal levels - defense attorneys can seek a change of venue to try to find a jury pool untainted by coverage of the event. If a civilian judge talks publicly about a defendant's presumed guilt, defense lawyers can seek a recusal.

But the system of law in U.S. military courts is marked by a number of distinct differences.

While defense attorneys can seek a change of venue, for instance, that request usually is considered by a defendant's commanding officer instead of the military judge assigned to the case, Rehkopf said. Defense attorneys also can seek to have charges dismissed, citing undue command influence. But they cannot reorder the chain of command that could eventually review a case.

Military defendants charged with crimes have a preliminary hearing, known as an "Article 32" hearing, at which allegations are initially vetted. The defendants are allowed to be present, unlike in civilian grand jury proceedings, and their lawyers can question witnesses.

After Article 32 hearings are complete, the commanding officer must determine whether there is sufficient evidence of criminal activity to convene a court-martial or recommend some lesser disciplinary action.

In some cases, U.S. soldiers accused of crimes overseas are transferred to local courts for trial. But law professor Michael F. Noone Jr. of Catholic University of America, who spent 20 years as judge advocate in the Air Force, said that is "extremely improbable here, because the Iraqi court system really isn't up yet and on its feet."

A defendant in military court can be convicted by a majority vote of the court-martial panel; a unanimous vote is required only in death penalty cases. The military court system has its own appeals court, although defendants also can seek a Supreme Court review.

Throughout the military trial process, the issue of command influence is a prominent one.

In one of the most famous military trials of the past century - the Vietnam-era murder trial of Lt. William L. Calley Jr. for the massacre at My Lai - President Richard M. Nixon drew rare criticism from a military prosecutor when he intervened two days after Calley's conviction, ordering that Calley be allowed to remain on house arrest while he appealed.

"Your intervention has, in my opinion, damaged the military judicial system and lessened any respect it may have gained as a result of these proceedings," Capt. Aubrey M. Daniel, who prosecuted Calley, wrote in a letter to Nixon.

In his earliest public remarks on the Abu Ghraib abuses, Rumsfeld indicated a sensitivity to the issue of command influence and the possibility that he could review the criminal cases.

"I'm in the chain of command. I'm not allowed to opine about things like that," Rumsfeld said a week ago when asked about the abuses on the MSNBC program Hardball with Chris Matthews.

"Allegations like that will end up in the military justice system, as they should," Rumsfeld said. "I'm not in a position - it could alter circumstances if I made expressions on the subject at this time."

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