I've warned several times on this blog that rushing the prosecution of the Abu Ghraib offenses would cause more harm than good. It will cause hard working JAGs to lose these cases. The military justice system works, but like the federal court system, litigation takes time. The stakes are high. If the military does a sloppy job on these cases and loses, hysteria will rule the day and Congress could take away the armed forces' ability to try their own.

Barry D. Halpern, a former JAG, makes this exact point (albeit more eloquently) in the new issue of the Weekly Standard. Subscription is required to read the entire thing, but here are some highlights:

"The upcoming court martial trials in the Abu Ghraib detainee abuse cases may have consequences neither intended nor anticipated by the military and civilian authorities who are pushing for a quick and decisive resolution of the affair. These trials--the first is scheduled to begin May 19 in Baghdad--will not be drumhead proceedings with preordained guilty verdicts. Unless the investigations that preceded the public disclosures of abuses result in early plea agreements, the cases may get ugly, complicated, and tedious."

"Military defendants enjoy essentially the same rights as civilian defendants. The Uniform Code of Military Justice provides defendants with military counsel (often selected by the defendant), access to civilian defense counsel, broad discovery rights assuring access to the prosecution's exculpatory information, and multiple levels of judicial and administrative appeal. Military juries, composed of service members, bring to the courtroom stronger educational backgrounds than a typical civilian jury and, in most instances, a professional ethic that assures adherence to the law regardless of the presumed expectations of the commander who convened the court martial."

"A race to the courtroom to showcase the "swift justice" promised by the president could have unpredictable and potentially damaging consequences. Unless the military prosecutors have ironclad cases or have secured plea deals, the Abu Ghraib courtrooms could become yet another vexing campaign in an already tough war. Dismissals or acquittals resulting from procedural errors would hardly enhance the world's impression of the American system of justice."

Mr. Halpern concludes, like I do, that those hoping to see a quick and decisive end to the prison abuse hysteria via the court-martials will be dissapointed. However, it is far better to let the system run its course. We hope the Abu Ghraib scandal will go away. But we will need our military justice system if we are serious about pursuing the War on Terror.

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