GIs to face Special Court-Martial for Alleged Abuse

This is a partial transcript of "Special Report with Brit Hume", May 10, 2004 that has been edited for clarity.

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PRESIDENT BUSH: Some soldiers have already been charged. And those involved will answer for their conduct in an orderly and transparent process. We will honor rule of law.


BRIAN WILSON, GUEST-HOST: Specialist Jeremy Sivits will be the first U.S. soldier to face military proceedings in connection with the abuse of Iraqi prisoners at Abu Ghraib (search). But Sivits will face a special court-martial, which can be held more quickly and carries lesser penalties than a general court- martial.

Joining me is former Judge Advocate General Michael Nardotti, who retired from the Army as a major general.

Thank you to help us try to sort this all out, because while the rule of law and the principles that are followed in the military courts are basically the same, the procedures are so very different. So tell me what a special court-martial is.

MICHAEL NARDOTTI, FMR. JUDGE ADVOCATE GENERAL, U.S. ARMY: A special court-martial is a court convened in the military that has limited authority to render a punishment. There's a limitation on punishment in the special court-martial to not more than a year, and the type of discharge is not the most severe discharge. The most severe discharge would be a dishonorable discharge; a lesser form of punitive discharge is authorized.

WILSON: Now, why would the Army seek that type of punishment?

NARDOTTI: Well, in the first instance, the commander who convened the court would have had to have come to the determination that the acts committed by Specialist Sivits were such that were appropriate for a special court-martial. You wouldn't necessarily -- you wouldn't ordinarily put a case at a lower level court, if it justified going to the highest level of military court.

There have been some press reports that Specialist Sivits may plead guilty. If combining the fact that he was less culpable, perhaps the least culpable of the actors, and the fact that his cooperation may be useful in other cases, it makes sense to proceed along the lines that would expedite the process. But not at the expense of justice.

WILSON: Now, in the regular courts, have you 1 guy who's less culpable but knows a lot. You cut a deal with him; you say we're going to go for a lesser charge if you will turn state's evidence. Is that what's going on behind the scenes here, something akin to that?

NARDOTTI: Well, there could be. Now, they generally would not say that before the date of the court because, of course, the accused has the ability to change his or her mind right up to the day of trial. So, we will know on the day of trial whether that's going to happen.

And even if preliminarily, Specialist Sivits has agreed to a plea agreement, the military judge in the case will take Specialist Sivits through a very intensive inquiry to make sure that Sivits is -- would be pleading voluntarily and freely, and that he understands all the rights that he would be giving up by engaging -- by taking part in a plea acceptance.

WILSON: Now, this is going to be a very public process with the Iraqi press in attendance. And we are told that the Army or the military will provide analysts to help them understand the military process. Is that unusual?

NARDOTTI: In other high visibility cases, not necessarily with foreign press; but in cases in the past, where there has been a higher degree of visibility, the military has provided experts to explain to members of the media in particular, who may not have been fairly familiar with military justice, to explain the differences and the similarities with federal criminal procedure. So that they would understand the process, what has preceded what happens in the courtroom and what is actually going on in the courtroom.

WILSON: And we should point out that Specialist Sivits has the responsibility by making certain requests early on to slow this process down if he so chooses.

NARDOTTI: If he demanded all of the steps necessary. If the intention was to initially to send him to a general court-martial, a requirement of that would be an investigation under the Article 32 of the Uniform Code of Military Justice. Which would be similar to a preliminary hearing, in that it would be a proceeding, in which the government would have to present its evidence.

And the accused would have the opportunity to cross-and witnesses, to challenge the government's evidence and to present evidence on his own. However, the accused in -- has the option of waiving that proceeding. If he does waive that proceeding, then it moves the process along faster.

WILSON: Now, how long will the whole trial process take?

NARDOTTI: If it is a guilty plea, it should happen...

WILSON: Very quickly.

NARDOTTI: Very quickly. Because it's a matter of a judge going through the inquiry, not only to determine what I mentioned before, about his of what he is giving up in the plea. But he will also take the accused through each of the charges and specifications; those accusations of what he has done -- the allegations of what he has done wrong, to make sure he understands and he admits to those -- those charges that are part of the plea agreement.

WILSON: Now, we don't know what's going to happen. Let's assume for sake of argument, he does plead guilty and this thing wraps up fairly quickly. Then they start looking to the others, and those will not be what we call the special court-martial, will they?

NARDOTTI: The anticipation at this point is that the others would be -- would go to a general court-martial. But we don't know what other facts and circumstances may come out in some of the later cases. We'll have to see based on the facts that come out and what the commander determines as the appropriate course for those cases.

WILSON: And again, if all those things fall into line as it's beginning to look they may, he would undoubtedly be one of the prime witnesses?

NARDOTTI: If that is part of the plea agreement, his cooperation, he would be part of that.

WILSON: Is there anything that you see with this process in all of your years and years of experience that causes you alarm about what's going on?

NARDOTTI: Well, I think it's very important that the process be driven by all the right considerations. In other words, we...

WILSON: And what are those?

NARDOTTI: In the first instance, we have soldiers accused of serious misconduct. And this -- in that respect, that it is imperative that we follow all of the steps that are necessary to protect the rights of the individual soldiers. And that we do not allow even the very significant international political dimensions of this to drive the process in a way that would compromise their rights.

WILSON: General Nardotti, thank you so much. We greatly appreciate the background, very helpful.

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