Abu Ghraib Officers
August 25, 2004 6:55 AM   Subscribe

JAG Filter: This article in the New York Times (reg. req. and expires soon - see also this article) states the judge in one of the Abu Ghraib cases is contemplating granting immunity to several officers to compel their testimony. This testimony could be helpful to the defendant who is trying to establish that he was acting upon orders from his superiors. I thought the prosecution not the judge decided who would get immunity, that is that immunity was like a contract whereby the prosecution agreed not to use the testimony in exchange for someone waiving their Fifth amendment rights. Any JAG lawyers out there? Do the rules differ about this in military courts?
posted by caddis to Law & Government (3 answers total)
Best answer: I'm not a lawyer, or a JAG, but...

As I understand it, immunity in a military trial is covered under Article 31 of the Uniform Code of Miliary Justice ("Compulsory Self-Incrimination Prohibited"), as well as the Rules for Court Martial 704. Short answer is that all parties involved--defense, prosecution, and judge--must enter into the agreement together.

The RCM states that, "Immunity for an individual should be granted only when a persons information is necessary to the public interest, including the needs of good order and discipline, and when the person has refused or is likely to refuse to testify or provide the information on the basis of the privilege against self-incrimination. "

About.com has a good summary (very readable for something law-related!) You can find the UCMJ here. RCM 704 can be found here. (Word Document)
posted by NotMyselfRightNow at 7:16 AM on August 25, 2004

Response by poster: Thank you NMRN. With your info I found the Manual for Courts-Martial here and looked up the full text of RCM 704. The decision to grant immunity falls to the convening authority, not the judge. However, in special circumstances the judge may, upon motion by the defense, direct the convening authority to grant immunity. All three of the following conditions must be met: 1) the witness intends to invoke the right against self-incrimination to the extent permitted by law if called to testify; and 2) the Government has engaged in discriminatory use of immunity to obtain a tactical advantage, or the Government, through its own overreaching, has forced the witness to invoke the privilege against self-incrimination; and 3) the witness' testimony is material, clearly exculpatory, not cumulative, not obtainable from any other source and does more than merely affect the credibility of other witnesses. 1 and 3 are easy in this case, I guess we will have to see how 2 works out. Again, thanks NMRN.
posted by caddis at 8:06 AM on August 25, 2004

The article I read said the judge was getting mighty pissed at the prosecution and compelling immunity, or the threat thereof, is his way of getting them moving.
posted by billsaysthis at 3:31 PM on August 25, 2004

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