Cracked Groucho Marx, “Military justice is to justice what military music is to music.”
Groucho may once have been right, but military justice has come a very long way. Witness the Article 32 hearing unfolding this week at Joint Base Lewis-McChord for the soldier accused of the worst American war atrocity since Vietnam.
The hearing has the look and feel of a criminal trial. By all accounts it is not going well for Army Sgt. Robert Bales, who lived in Lake Tapps before he was accused of massacring 16 noncombatants in Afghanistan during the early hours of March 11.
Since Monday, witnesses have testified that Bales left his NATO base that night, that gunfire was heard from the direction of a village Bales is accused of attacking, that he came back alone and heavily armed. A fellow sergeant testified Monday that Bales told him, “I shot up some people.”
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Bales’ defense attorneys are probing witnesses for signs that he was under extreme stress or the influence of mood-altering drugs. Prosecutors are depicting a carefully planned and executed mass murder.
What’s remarkable about this preliminary procedure – from a civilian point of view – is how open and elaborate it is. It will even include testimony from villagers transmitted from a military base in Afghanistan.
After hearing out the witnesses, prosecutors and defense, the presiding officer – an Army Reserve colonel and assistant U.S. attorney – will recommend whether Bale should face a court-martial. Only then will the trial get under way.
In the civilian world, the very rough equivalent of an Article 32 hearing is a grand jury. There’s a huge difference, though: A grand jury is a secret affair entirely under the control of the prosecutor.
Only prosecutors present evidence, and they are under no obligation to present exculpatory facts. The Article 32 process, in contrast, gives defense attorneys a preview of the Army’s case and lets them argue against further prosecution in front of a neutral officer.
Soldiers start out at a disadvantage when accused of a crime: They and their attorneys are under the authority of the same Army that is seeking to convict them. But a series of reforms has countered that disadvantage with an array of safeguards.
Defense attorneys operate under an independent chain of command. They have smaller caseloads than their civilian counterparts. Plea-bargaining is tightly restricted: Defendants can’t waive their right to appeal, and they can’t be threatened with additional charges if they refuse to plead guilty.
If Bales did what he is accused of, he did incalculable damage to the Army and the United States. Yet the hearing he’s getting at JBLM this week is a display of procedural fairness that some of the world’s best justice systems can’t match.