Tonight, Thursday Feb 18, 2010, CNN Anderson Cooper’s 360 will highlight the case of CPT Roger Hill and Dog Company, 1-506^th Infantry.  We expect a fairly in depth look at the circumstances surrounding CPT Hill’s case, totaling around 30-35 minutes of total story line, interview, commentary, etc.  The focus is on the need for more effective Rules of Engagement (ROE) and detention policies to better match up to the asymmetric enemies we face today, especially in NATO led Afghanistan.

In the Fall of 2008, CPT Hill and his men faced Army criminal charges of detainee abuse.  Because they received no support or instructions from their higher headquarters, they attempted to get confessions from detainees of probable Taliban ambushes of US forces.  They would have to release the detainees unless they had evidence through confessions to turn them over to the Afghanistan forces.  Without confessions, the detainees were to be let free to continue their liaison with the Taliban from inside the US forward operating camp.

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 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.

The Associated Press published a story on the second appeal of an Abu Ghraib Soldier’s conviction citing the defense attorney’s theory that the Soldier was following Army policy. The story is a bit confused about the military justice process.

US Army Court of Criminal Appeals

Military courts-martial that end with a sentence of at least one year in jail and/or a dishonorable or bad conduct discharge are automatically forwarded to the Service-specific Court of Criminal Appeals (CCA). Each Service has military active duty or reserve lawyers for the defense and the government, who work on appellate issues. The United States Army Court of Criminal Appeals is located in Arlington VA. The Air Force, Navy-Marines, and Coast Guard each maintain an appeals court that presides over their Services appeals.

Military Attorneys at the Appellate Level

The military member is assigned an appellate defense attorney just like they were assigned a military defense counsel for his or her court-martial. This appellate defense attorney reviews the trial record and identifies any substantive issues in the process that may have led to a decision that warrants reversing the conviction or some other relief. When the appellate case is presented, there are government military attorneys arguing the merits of the process as it relates to military case law, the UCMJ and previous appellate decisions in the courts above. A military member can hire a civilian attorney to present his or her case, arguing the issues of law and the military justice process.

Military Criminal Appellate Cases

Any Service appellate court decision unfavorable to the military member can be appealed, on a case-by-case basis, either by right or by certification to the higher court by the Judge Advocate General of that Service. However, there are very few automatic appeals above the Service CCA level. The U.S. Court of Appeals for the Armed Forces (CAAF) is comprised of five judges, appointed by the President, “from civilian life” for a 15 year term. Military attorneys and judges who retire from the military are not eligible to serve on the CAAF. This ensures a distinct civilian nature to the court.

US. Court of Appeals for the Armed Forces

If a case is appealed through the Service’s appellate court and is referred to the CAAF, which then again rules unfavorably for the member, the only remaining remedy for further appeal is to the Supreme Court of the United States. The number of military cases that reach the U.S. Supreme Court are very few, and focus on the application of Title 10 of the U.S. Code and the UCMJ in light of other federal law. In the cases of the Abu Ghraib convictions, those who were sentenced to more than one year or were discharged either with a dishonorable or bad conduct characterization, will have the right to have their appeals considered by the Army Court of Criminal Appeals.

Individual Ready Reserves, Be Prepared

All individuals who enter military service incur a military service obligation (MSO) of eight (8) total years from the date of enlistment, appointment, or when authorized by law, induction into one of the Services. Any portion of those eight years that is not on active duty or active duty for training shall be performed in a Reserve component as defined in 10 USC (Sections 10101, 10142, and 10143).

Military Obligated Service

The date on which you complete your 8 years of military obligated service is listed on the DD 214, Block 6. You are eligible for recall by the military services if you have not completed your eight years of MSO. Additionally, if the ‘Mailing Address After Separation’ in block 19a, listed on the DD214 is incorrect, the mobilization orders may be delayed in getting to you, thus narrowing your response time to request a delay or exemption.

Deadline to Request Delay

The Services require you to respond quickly when they issue you a set of orders. Usually you only have 4 – 8 weeks before you report for duty. They need your request for a delay or an exemption within 14 days of the date of the orders. This allows them to amend your orders and issue orders to another individual to replace you on the mobilization.

Requests Due to Hardship

The process is not difficult but does require adherence to the process steps and requirements. Present the facts with supporting documentation that verifies your statements. Reasons for delays or exemptions from the mobilization orders include extreme personal hardship, extreme community hardship, medical disqualification, and administrative reasons. These categories seem broad, but allow for individual ready reserve members to present their facts and concerns for the Service to delay or complete exempt from duty.

Be Prepared, Know What Your DD214 Says

Know where your DD 214 is and keep a copy. Know your individual ready reserve date when you are no longer subject to recall (usually 8 years after your initial entry into the military). Keep your current address, phone number and Email updated with your former Service so any mobilization orders are delivered to you without delay. This maximizes the amount of time available to you to request a delay or exemption from duty. A checklist of the IRR delay and exemption process is located on the Law Firm of Puckett & Faraj, PC website: Common Questions, IRR Delay and Exemptions

The Army recently announced acceptance of 1LT Watada’s resignation for the good of the service in lieu of a general court-martial for failure to go with his unit to Iraq in 2006. Apparently his 2007 court-martial ended in a mistrial.

Good of the Service Implications

The Associated Press indicates his resignation is for the good of the service, and in accordance with 38 CFR 3.12, this means he loses all his Veteran’s Administration benefits. Officers who resign for “conscientious objector who refused to perform military duty …” and for the “good of the service” are discharged and characterized as “under other than honorable conditions” and are prohibited from receiving VA benefits. (Army Regulation 600-8-24, Para 1-22, Chpt 3)

Military Court-Martial Second Time Around

Regarding the Army’s ability to re-charge the LT, it would depend on the circumstances of the original charges and the specific legal misconduct during the 2007 court hearing that led to the mistrial. Under a new convening authority or after review of the previous military justice process or new evidence, new charges can be preferred and a second court-martial convened. It is not unheard of in the military justice system for a court-martial to occur, be invalidated through appeals and then charges be reissued. Submission of a resignation in lieu of court-martial for the good of the service does not preclude the court-martial process from continuing. If the military justice process continues, the final disposition of charges is held until the Army Human Resources Command (AHRC) approves or declines the resignation request.

Options to a Court-Martial

In this case, the military member apparently determined the best course of action was to negotiate away his VA benefits and rights associated with his military active duty instead of facing another court-martial. These decisions are best made with your military attorney and, if hired, a military civilian attorney experienced in military law. The nuances of the consequences of each decision option are varied and complicated by the 10 USC, the UCMJ and 38 USC, Veteran Administration Pensions and Bonuses. Experience within the military justice system is critical in understanding the long-term impact of negotiating pre-trial agreements, or requests for retirement or resignation.