Press Release:  The three Navy SEALs charged with hitting a detainee, a detainee who allegedly is responsible for the deaths and mutilation of four Blackwater Contractors in Fallujah in 2004, begin their courts-martial process next week.  On December 7, 2009, the military will hold an initial hearing, an arraignment of SO2 Matthew McCabe.  SO2 McCabe is charged with hitting a detainee.  Each of the three SEALs is represented by a different law firm.  The names of the accused SEALs and the firms representing them are below:

SO2 McCabe is represented by the Law Firm of Puckett & Faraj, PC.   Mr. Puckett can be reached through his website (www.puckettfaraj.com/contact-us), Email at neal@puckettfaraj.com and via phone 888-970-0005.

SO2 Keefe is represented by the Law Firm of Greg D. McCormack, PC.  Mr. McCormack can be reached through his website (www.militarylawyers.org), Email at inquiry@mccormackpc.com or via phone 757-463-7224.

SO1 Huertas is represented by Monica L. Lombardi, LLC.  Ms. Lombardi can be reached through her website (www.militarytrial.com), Email at mlombardi@militarytrial.com or via phone 757-309-4764 (toll free 888-826-5529).

Press Release: SO2 Matthew McCabe, one of three Navy SEALs being charged with the abuse of a detainee who is suspected of killing and mutilating four Blackwater Contractors in Fallujah in 2004, faced arraignment in a military court on Dec 7, 2009. Petty Officer (PO) McCabe is being charged with punching the detainee in the stomach. He faces court-martial, a year in jail and a bad conduct discharge.

On December 11, 2009, SO2 McCabe formally notified the government of his intent to plead “Not Guilty” to all charges and is requesting a trial by a panel of military members, including enlisted members.

Public Response

HUMAN EVENTS has posted a petition requesting the Secretary of Defense, the Honorable Robert M. Gates, to dismiss the charges against the three Navy SEALs, SO2 McCabe, SO2 Keefe and SO1 Huertas.

The Law Firm of Puckett & Faraj, PC is grateful for the outpouring of public support for these Navy SEALs. The Firm represents PO McCabe, the main defendant in the case. Several have asked how they may contact the Navy and United States Central Command to voice their support for these three Navy SEALs. The addresses for their senior commanding officers are:

Convening Authority: MG Charles T. Cleveland  SOCCENT/CC 7701 Tampa Point Boulevard McDill AFB, FL 33621

Administrative Authorities: Chief of Naval Operations, Admiral Gary Roughead 2000 Navy Pentagon Washington, DC 20350-2000 and the Secretary of the Navy, The Honorable Ray Mabus 1000 Navy Pentagon Washington, DC 20350-1000

At this point, two Defense Funds have been set up for all three Navy SEALs.

DISCLAIMER: THE FOLLOWING INFORMATION IS PROVIDED WITHOUT ENDORSEMENT.  THE LAW FIRM OF PUCKETT & FARAJ, PC DOES NOT CONTROL OR HAVE ANY PROFESSIONAL OR FINANCIAL AFFILIATION WITH ANY LEGAL DEFENSE FUND.  LEGAL DEFENSE FUNDS OPERATE INDEPENDENTLY FROM THE LAW FIRM AND THE PARTNERS.  PARTICIPANTS ARE ENCOURAGED TO EXERCISE DUE DILIGENCE WHEN CHOOSING TO CONTRIBUTE TO A DEFENSE FUND.

#1: U.S. Navy SEAL/Warrior Defense Fund: The U.S. Navy SEAL/Warrior Defense Fund, to defray the legal costs and fees of the 3 Navy SEALs charged with detainee assault.  http://sites.google.com/site/usnavyseallegaldefensefund/ or via Bank of America (any branch) Account Number 435020290711 or mailed to Bank of America P.O. Box F, Fort Eustis, VA 23604.  The Fund is NOT a 501(c)(3) tax exempt organization under the Internal Revenue Service and therefore, contributions are NOT tax deductible.  For more information:  navysealdefense@gmail.com

#2: Navy SEALs Fund, for donations to help pay the legal bills of the three accused Navy SEALs.  http://www.maritimetacticalsecurity.com/MtsNews.aspx or via JPMorgan Chase Bank, the “Navy SEALs Fund”, Account # 834325318.  This is a non-profit account.  For more information please contact support@maritimetacticalsecurity.com or by phone 888-867-0899, ext 101.

Major Hasan’s civilian defense attorney has indicated he may raise the insanity defense for the shootings of 13 military and civilian members of the Fort Hood community on 5 Nov 09. But he also indicates it is too early in the process to determine a defense strategy.

CID Investigation

The US Army Criminal Investigation Command (CID) has not completed its investigation of the Hasan case. It may take several months to complete a thorough investigation. The current charges, levied days after the event, are not the final charges in the case. Since there were also dozens others wounded, charges of attempted murder are likely.

Preliminary Charge Sheet

While preliminary in nature, the substantial evidence pointing to Hasan as the shooter was justified as a basis for murder charges. CID recommended an initial charge sheet of 13 counts of murder. The commander reviewed the CID recommendations and with the Staff Judge Advocate’s (command legal advisor) advice, determined the specific UCMJ offenses to charge. The preliminary evidence also allowed the commander to determine the probability of flight risk and safety requirements for Fort Hood, to then order Major Hasan be placed in pre-trial confinement pending trial as well as further investigation of additional charges.

Defense Strategy Development

Major Hasan has been appointed military criminal defense attorneys along with the family’s retained civilian defense attorney. All attorneys expect additional charges based on a full and complete CID investigation. No criminal defense attorney develops a defense strategy until all the evidence is collected and reviewed. Additionally, Major Hasan cannot fully participate in his defense until he has recovered from his wounds.

Administrative Hearing

The recent hearing on 21 Nov, in his hospital room was an Initial Review Officer (magistrate) hearing to determine the legality of continued pre-trial confinement. Further, the prosecutors’ ability to provide answers to military defense attorneys depends on the progress of the CID investigation revealing additional evidence in the case. But one major advantage the defense attorneys in a military court-martial have is practically immediate access to all evidence in the case as soon as possible after it is reported to prosecutors. In federal and state courts sometimes information not intended for use at trial is withheld from defense attorneys.

Major Hasan has been ordered to pre-trial confinement by his commanding officer. While recovering from his wounds, that pre-trial confinement is in the hospital under guard. Pre-Trial confinement is ordered by the commander for persons with reasonable belief that they committed an offense triable by court-martial has been committed, that the individual to be confined committed the offense and confinement is required by the circumstances.

Reasons for Pre-Trial Confinement

Pretrial confinement is authorized where the command has reason to believe the member might go absent without leave (AWOL) to avoid prosecution or the member may engage in continued serious criminal misconduct and less severe forms of restraint are inadequate. Less severe forms of restraint include restriction to base or limitations on duty and liberty, which are given to the member as a direct order. In some cases, his or her safety from others may be a consideration.

Major Hasan’s Pre-Trial Confinement

Pre-trial confinement to prevent further serious misconduct could include intimidating witnesses or obstruction of justice, serious injury to others or other offenses which pose a serious threat to the safety of the community, or to the effectiveness, morale, discipline, or readiness of the command or the national security of the United States. In the case of Major Hasan, even though he is paralyzed from the chest down, he could incite others to intimidate witnesses or find a means to continue his alleged past demonstrated and possible future intent of causing harm to others.

Rights under Pre-Trial Confinement

His pre-trial confinement does not limit his Constitutionally protected legal rights, including his ability to communicate with his attorneys and receive mail and visitations by family as per military confinement procedures. His rights and privileges are only limited as to his freedom of movement and association and reasonable restrictions on what he can receive through the mail. Upon his sufficient recovery to be released from the hospital he will be transferred to a military confinement facility (or brig) until his Article 32 hearing.

The military has personnel policies in place to deal with family emergencies from granting emergency leave, to identifying family and friends to care for dependents in your stead, to granting humanitarian permanent duty station moves. The military member’s unit commander makes these administrative decisions. Sometimes when the commander executes one of the administrative options available, it runs afoul because of lack of good communications between the command and the military member.

Family Emergency Leave

PFC Christopher Pfeiffer came home on a mid-tour rest and recuperation leave from Afghanistan for the care of his medically ill pregnant wife who was to deliver their first child. The mid-tour leave from a combat deployment is usually only 2 weeks long. PFC Pfeiffer requested additional leave for his wife’s medical emergency and at the time, his yet unborn child.

AWOL and Desertion

In the course of the long distance communication with the command, it appears the facts were blurred and misunderstandings resulted. PFC Pfeiffer returned to Kuwait and awaited military transport to rejoin his unit. His intent was exactly that, to rejoin his unit. Yet his command classified him as a deserter, and his pay was docked beginning 30 days after his official return date. He was arrested while awaiting military airlift at the theater aerial port of embarkation. He had no intention of desertion as the Army now asserts.

Rest and Recuperation Leave

Military members accrue 2.5 days of leave for every 30 days of duty with pay and allowances. Members are encouraged to take approximately 30 days of leave a year, and can carry over a maximum of 60 days of accrued leave between fiscal years. Any excess above that is time lost. Rest and Recuperation leave is designed for use when Soldiers are in a combat zone and administered by the unit commander. Only one 2-week period is authorized per 12-month deployment.

Administrative vs. Military Legal Case

Tracking individual military members in and out of the battlefield is difficult as is managing all the requests for emergency leave. Yet there are administrative means to deal with these family medical emergencies and in this case, the Army let an administrative process unnecessarily turn into a military legal issue.

Major Hasan, the alleged suspect in the shooting of 13 Soldiers at Fort Hood last week, has sparked numerous discussions on the possible motives he had for his horrendous act. One of National Public Radio’s programs, “Tell Me More,” explored one aspect of the debate on Monday, November 9, 2009 with one of the Law Firm of Puckett and Faraj, PC’s attorneys, Haytham Faraj.

Haytham Faraj, Esq.

Haytham Faraj spent over 22 years in the Marine Corps, and is a native of Lebanon. He is fluent in Arabic and served in the Marines as both an enlisted infantryman and as an officer in charge. He attended the Citadel and American University Law School, receiving his JD in 2005. His last duty in the Marines was the Senior Defense Counsel at Camp Pendleton, CA.

National Public Radio

Listen to Haytham Faraj at this link: National Public Radio, Tell Me More, “For Muslims, Military Service Sometimes Met with Hostility.” November 9, 2009.

The Hasan family has hired a civilian attorney to defend Major Hasan. The attorney spoke with the Major this week and has requested no law enforcement interviews with his client. The military justice system allows for a suspect to remain silent when Criminal Investigation Division (CID) requests an interview.

Statements to CID

When a suspect refuses to interview with military criminal investigative services, the military criminal defense attorney can focus on challenging the evidence rather than refuting statements made without an attorney present. While statements can either be coerced, partially factual, truthful or various perceptions of reality, finding the ground truth is the task of both the prosecution and the defense.

Statements Under Duress

Any statements made by a suspect must also be without coercion and voluntary. The state of the individual, under the influence of alcohol, drugs, medications or mental afflictions, can taint the statements and make them involuntary and inadmissible in a military court. Major Hasan, when charged, must be treated for his wounds and recover sufficiently to participate in his defense.

Speedy Trial

The 120-day clock for a speedy trial begins after a military member is served a charge sheet or placed in confinement. The speedy trial count down of 120-days can be delayed by either the prosecution or defense. Either the prosecution or defense presents a motion to a military judge who can deny, approve, or revise the request. The reasons for delay include but are not limited to, recovery from medical issues, mental health evaluations, and the interview of witnesses or collection of evidence.

Rights Under the UCMJ

Major Hasan’s lawyer must protect the rights of his client as provided by the 5th Amendment to the Constitution. When a military member hires a civilian attorney or is provided an appointed military defense counsel, he or she has the same protections under the Uniform Code of Military Justice, as anyone facing criminal prosecution in the U.S.

The Board of Inquiry for Lt Col Chessani scheduled for December 3^rd will determine whether he failed to properly report or investigate the events at Haditha, Iraq, in November of 2005. If the board finds that such a failure has been substantiated, they can make a recommendation as to whether LtCol Chessani should be retired, and if so, at what pay grade. They may recommend that he retire as a Major rather than his current rank of Lt Col.

Purpose of a Board of Inquiry

The purpose of a Board of Inquiry is to have senior officers review the officer’s record and allow Lt Col Chessani to rebut any allegations supporting his separation for cause or retirement in a current grade or lesser grade and define the characterization of his service.

Board Members

The Marine Corps is assigning one Brig General and two Colonels to hear Lt Col Chessani’s case. It is highly unusual that a Brig General would be assigned to such a board for a Lt Col BOI when the regulation only requires the board be senior in grade to the officer. The Marine Corps could have assigned senior Lt Cols and one Colonel to hear the case. The board members selected must be officers without personal knowledge pertaining to the case. It would have been difficult to find board members when the associated allegations surrounding the incident at Haditha have had broad and frequent publicity.

Rights in a Board of Inquiry

The Board of Inquiry is an official proceeding, with a recorder, rights to legal counsel, opportunities to present matters, present and/or question witnesses under oath, rights to challenge any member of the board for cause, rights to submit evidence, rights to give sworn or unsworn testimony, presentation of oral and written (either, or both) testimony, and rights to rebut a board recommendation.

Secretary of the Navy

The final decision regarding the future of a Naval or Marine officer facing separation proceedings rests within the authority of the Secretary of the Navy. The Secretary acts upon the recommendation of the Board of Inquiry either by approving, disapproving, or modifying the recommendation. Assignment of continued duty, retirement or separation actions are made by the appropriate administrative offices after the Secretarial decision. If the officer feels the Secretary’s decision was not appropriate, his or her options after separation or retirement are with petitions to either a Board of Corrections of Naval Records or the Naval Discharge Review Board.

The loss of Soldiers at Fort Hood yesterday is a tragedy and our sympathies go out to the families, the Fort Hood Community and our Army military brothers and sisters in arms. As the media argues about the next steps of dealing with the suspect who murdered 13 Soldiers and civilians at Fort Hood, those who work within the military justice system understand it is well equipped and practiced in dealing with misconduct in the military, including premeditated or unpremeditated murder.

Pre-Trial Custody

The suspect is in pre-trial custody, and his speedy trial clock has already begun to count down to his arraignment, normally required to be scheduled within 120 days. The convening authority, usually a general officer in the suspect’s chain of command, has the ability to extend that speedy trial clock for extenuating situations, such as allowing the United States Army Criminal Investigation Command to complete a thorough investigation.

CID Investigation

The Criminal Investigation Division (CID) in charge of the investigation gathers evidence and writes a report including a theory of the crime. This is sent to the convening authority, who reviews it and sends it to the base legal office for a legal review. The JAGs review the investigation and the applicable Uniform Code of Military Justice (UCMJ) and draft a charge sheet. This is sent back to the convening authority, who approves, modifies or deletes charges. It is then served on the military member, is assigned one or two military lawyers and soon thereafter appears in front of a military judge for an arraignment on the charges.

Military Justice System

This is clearly a situation that is tailor made for disposition totally within the military justice system. No one should question the capacity of all aspects of the military system to deal with this horrendous crime.