Representative Dan Burton (R-IN-05) received a December 15, 2009 reply from Major General Cleveland, indicating he will continue with the Navy SEALs special courts-martial.  Rep. Burton’s January 4, 2010 reply letter strongly urges the General to reconsider.

General Cites Enforcement of Lawful Orders

The General reportedly cited the incomplete and misrepresentation of facts by the media, the need to enforce lawful orders no matter how small the infraction, and the refocus on the case on allegations of attempted cover ups and influence of a witness.

Rep. Burton Urges Non-Punitive Means

Rep. Burton’s second letter to the command acknowledges the need for discipline but restates that the punishment far exceeds the crime.  The Congressman additionally cites concern over the culture of the military where members are more concerned about protecting themselves from prosecution than fighting the enemy; the perception of America by terrorists as too weak to do what is necessary; and the damage caused to America’s morale if these courts-martial proceed.

Navy SEAL Prosecution at What Cost?

Military members have the responsibilities to act on the battlefield within political and military policies and rules of engagement and in accordance with their training and the unit mission standing operating procedures (SOPs).  In this case, the Navy SEALs are being prosecuted at a level deemed a federal crime rather than through administrative means that would leave the military morale and their continued service to the country in place.

The Army recalled MSgt Timothy Hennis back to active duty to be tired for 3 counts of murder after his conviction in a state court was overturned and he was acquitted in a new trial ordered by a state appeals court. The immediate question one asks is, how can the military try a Soldier for something for which he has been acquitted? Isn’t that Double Jeopardy?

Military Members Fall Under Local, State and Federal Laws

Military justice is federal law and every military member is subject to this law 24/7, 365 days of the year. This applies while they are in uniform on duty and when they are off duty in civilian clothes or on leave. Military members are also subject to the local laws in the states in which they are stationed even if they vote in a different state. This means the military members are under both state and federal laws at all times, and if one of these levels of law acquits (or convicts), that does not prohibit the other from filing charges against the Soldier, Airman, Marine, or Sailor.

Not Double Jeopardy

This may seem unfair and a case of double jeopardy for all of our military members. It is true the U.S. military holds our members to higher code of conduct and commanders hold military members responsible for their individual actions. Retirees are no exception. As a condition of their retirement pension they are always subject to recall to active duty and they are subject to the federal UCMJ laws for the rest of their lives. MSgt Hennis retired from active duty in 2004 with a full pension.

General Court-Martial

MSgt Hennis has been recalled to active duty and the military judge is hearing motions at Fort Bragg regarding his pending court-martial. Having been tried and acquitted by a state court system, Hennis now stands trial in a general court-martial under the federal military legal system. This is not true double jeopardy because the sovereign authority of a state government is considered to be different under our U.S. Constitution than the sovereign authority of the federal government, in this case, in the form of the UCMJ.

Military members accused of a crime under the Uniform Code of Military Justice have the right to hire a civilian attorney in their defense.  The Government is obliged to provide a uniformed military defense attorney free of charge to each military member who has been given a charge sheet.   The outcome of a military court-martial depends on the facts of the case and the skill of your defense attorney.

Your Legal Rights

A uniformed military attorney is assigned to your case when you receive a charge sheet.  But what happens while the commander and the investigative service (NCIS, CID, CGIS, or the AFOSI) analyze the facts and determine whether a case merits legal proceedings or non-judicial punishment?  What are the long-term effects of military legal actions against you vice the non-judicial punishment?  Which one is better for your particular situation?

Military Charge Sheet

A military member can go to the legal office and talk to a defense counsel who will tell you that until you receive a charge sheet they can’t help you.  They will advise you to not make statements to the investigative service and they will tell you not to talk to anyone about your case.  They can advise you if your commander is offering you non-judicial punishment instead of a court-martial.  That decision depends entirely on the specifics of your case and your long-term life goals.  The problem is they don’t really represent you until after a decision is made to charge you.

The Best Defense Starts Early

The best defense is to think about all your actions before you do something.  If there is any concern that anything you do or say might violate the UCMJ, you should talk to your chain of command, review the operating and/or safety regulations in your unit, and/or talk to the legal office on the base.  If the command has started an investigation into you or your friends’ actions, the best defense is to not make any statements and seek an attorney.  Remember attorneys cannot counsel you unless they are hired or in the case of your uniform military attorney, you have been charged under the UCMJ.

A recent report by the Institute of Medicine Committee on Smoking Cessation in Military and Veteran Populations made recommendations to reduce tobacco initiation and encourage cessation in both active-duty and veteran populations.  They recommend Congress reinforce or change Presidential Executive Orders and Federal Law, one that directs no smoking in all federal buildings (which DoD responded to by setting up designated outside smoking areas) and a second that requires DOD to sell cigarettes at a discount rate free from local and state taxes.  They advocate that DOD and the Veterans Administration should treat tobacco the same way it does other health-related behaviors, such as alcohol abuse and poor physical fitness.

Eliminate Tobacco Use on Military Installations

The recommended strategy is to reduce the availability of tobacco and any sanctioned use of it.  This requires a strategic plan involving Congressional changes in law, removal of all support to smoking or chewing tobacco on military installations, and the requirement of commanders to education, train, rehabilitate and if all else fails, ultimately punish offenders.

Military Law

The military justice system uses a two-prong strategy to address alcohol abuse and poor physical fitness.   First an offender is identified either through observation or testing or as a result of an infraction of the law, on or off base such as in the case of a drunk driver.  The Commander then identifies a need for medical assessments and/or training or rehabilitation to educate and hopefully assist the military member in eliminating the problem.  Military members are given a fair amount of time to change behaviors.   Those who don’t or those whose behavior results in an infraction of the law may then be subject to the Uniform Code of Military Justice.

Administrative Discharge or Court-Martial

At best a military member found to have failed alcohol rehabilitation faces the likelihood of administrative separation.   At worst, the member could serve time in prison for alcohol-related criminal offenses.  The Institute of Medicine Committee report does not discuss the military justice response to a tobacco offender.  Unlike the dire circumstances that alcohol can produce, tobacco use mainly affects the individual and his or her personal military readiness for combat.

Military Career at Stake

DoD will most probably use the administrative separation choice for tobacco offenders who cannot break their habit within the proscribed timeline set by the medical community.  This failure to quit smoking or using chewing tobacco will leave military members with the possibility of an early discharge and possibly reduced Veteran Administration benefits.

The North County Times reported on June 16, 2009 that the Commandant of the Marine Corps has chosen to appoint a new convening authority in the Haditha case of Lt Col Jeffrey Chessani.   Chessani was charged with dereliction of duty after 24 Iraqi civilians were killed in Haditha in November 2005.  His case was dismissed in April, by a Marine Corps judge, because of unlawful command influence tainting the prosecutions case.

US Marine Corps Commandant

The Commandant of the Marine Corps, General Conway, chose to appoint a new commanding general officer to decide if the Marine Corps will send Lt Col Chessani back to a court-martial.  Options included completely dismissing the case against Chessani, preferring the same or different charges against him, or levying a lesser administrative discipline against the former battalion commander.

Chessani’s Command Responsibility

Lt Col Chessani was charged in December 2006, along with 7 other Marines alleged to be responsible for the deaths of 24 Iraq civilians in Haditha after an IED explosion killed a Marine and seriously wounded two others.  Their commanding officer, Lt Col Chessani, was responsible for oversight and command and control.  He was charged with dereliction of duty in failing to instigate a full investigation the day after the November 2005 event.

One Marine Waits for Court-Martial

The Squad Leader, SSgt Frank Wuterich, remains on active duty at Camp Pendleton waiting for his court-martial, 3 ½ years after the incident.  His court-martial is on hold, while the government appeals a motion, where the judge denied them the use of the CBS 60 Minute outtakes from Sgt Wuterich’s 2007 interview.   The Navy Court of Appeals heard oral arguments, on June 25, 2009.   No matter which way the Navy Court of Appeals rules, either CBS or the Government are expected to appeal the ruling to the U.S. Court of Appeals for the Armed Forces; continuing to delay justice for SSgt Wuterich.

The high standard of proof required for a person to be convicted under our system of justice recognizes that sometimes guilty people will go free.  But it is necessary to assure that innocent people are not wrongly convicted.  Or at least, in theory, that is how it is supposed to work.  Increasingly, however, it seems that innocent people are being wrongly convicted for crimes they did not commit despite the built in safety mechanism of our “beyond a reasonable doubt” standard for a finding of guilty because the law has gradually shifted to limit a defendant’s access to evidence and witnesses.  The case of William Osborne is emblematic of the problem. 

Mr. Osborne was convicted of the rape of a woman in 1994 after a codefendant made a deal and testified against him.  Mr. Osborne was convicted based partly on the codefendant’s testimony and an old method of DNA testing that narrowed the field of possible perpetrators to 17% of the population.  Recently Mr. Osborne asked the State of Alaska to allow him access to his DNA so he could personally pay the $1000 necessary to get a new DNA analysis that will definitively establish his guilt or innocence.  The new DNA analysis can determine whether Mr. Osborne was the perpetrator to a level of certainty of one in a trillion.  Alaska, however, refused

To me, it seems that Mr. Osborne’s is a reasonable request.  If he is truly guilty we will be able to finally shut him up and move on.  But if he is innocent, then we can begin to undue this human tragedy and look for the real perpetrator.  The Ninth Circuit Court of Appeals saw it that way as well.  They sided with the Innocence Project that is representing Mr. Osborne.  Incidentally, the Innocence Project reports that DNA evidence has led to the release of 232 people who had been wrongly convicted.  On March 3rd, Governor Palin sent the Alaska Attorney General to argue the case before the Supreme Court to persuade the Court to reverse the Ninth Circuit.  Obama’s Justice Department is, confoundingly, siding with Alaska.  Their argument is at best spurious and at worst criminal, “States need finality in criminal convictions.” 

I am not sure where in our constitution States and the Federal government find the language granting them a right to “finality in conviction.”  I do know, however, where to find the right to Due Process for those accused of criminal acts.  It is called the 14th Amendment. 

I am not sure if Mr. Osborne is innocent or guilty.  He did not have a previous criminal history and at the time of his conviction he was serving in the military.  That leads me to want to give him the minimal benefit of doubt to allow him to pay the $1000 to test the DNA retrieved from the condom used on the victim to absolutely prove whether he did or did not rape her.  Our politicians and prosecutors need an infusion of reality and some remedial instruction on our Constitution.  The rights granted by that document in criminal proceedings are to those accused of crimes and not the Prosecution.  Perhaps we can clear up our dockets and help judges turn their attention to more pressing matters of justice if Prosecutors and politicians stop bringing frivolous lawsuits and appeals that challenge common sense and do nothing to improve out trust in our justice system.

Haytham Faraj, Esq.

Puckett & Faraj PC

Attorneys Neal Puckett and Haytham Faraj specialize in criminal defense and trial work.  They are partners in the premier litigation law firm of Puckett and Faraj, PC.  They have decades of trial experience defending those accused of criminal charges in federal trials and military courts-martial. Mr. Puckett and Mr. Faraj also represent clients in a variety of administrative hearings including Boards of Inquiry, Administrative Separation hearings,  Boards of Corrections of Military and Naval Records, Military Discharge Review Boards and National Security Clearance hearings, among others. Neal Puckett and Haytham Faraj have also represented those who have been harmed or injured by the negligence, recklessness, or deliberate acts or failures of others.

The partners take pride in providing client focused representation that seeks to ensure client accessibility to the attorneys and best in class service.  Puckett and Faraj, PC seeks maintain its position in providing the gold standard in legal representation.  The firm has offices in Alexandria, Virginia and San Diego, California.  The partners are licensed to practice in Illinois, Virginia, the Eastern District of Michigan and in all states and all over the world, including Iraq, Afghanistan, Germany, Italy, Japan, and Kuwait representing military clients.

The story of Captain Roger Hill is compelling.  Army Hanging Hero Out to Dry.  Often when commanders on the local level figure out a way to win the war, their superiors take them to task for coloring outside the lines.  the Taliban does not follow rules.  When they capture or kill our soldiers and Marines, they are known to butcher them and distribute their body parts as souvenirs.

CPT Hill, an Army company commander, who had suffered an extremely high casualty rate in his unit, discovered that trusted Afghans working on his forward operating base were traitors who communicated troop movement information to the Taliban.  He detained them and notified higher headquarters for assistance in moving them to a place where they could be interrogated and perhaps tried for their crimes. The battalion staff stalled him for 4 days until the 96-hour time limit for holding detainees expired.  The information about the betrayal was obtained through sensitive sources and methods which could not be revealed to Afghan forces who might take custody of the detainees, so CPT Hill and his First Sergeant knew they needed to extract confessions from them.  Confessions would not  be classified and could justify their continued detention.  Otherwise they would have to be released, and therefore continue to work against our soldiers.  In order to assist his interrogators, he went outside with some less important detainees and fired his weapon into the ground three times, to simulate their execution.  That information was used by his interrogators to extract useful information from the high threat detainees.  A War’s Impossible Mission

The Army, rather than decorating CPT Hill for his courage and initiative, brought war crimes charges against him.  The Law Firm of Puckett and Faraj, PC, defended CPT Hill during a three-day hearing at Forward Operating Base Salerno in Afghanistan.  The investigating officer, a courageous Army Lieutenant Colonel in the Military Police Corps, wrote a report, which was promptly sealed and never released to his attorneys.  After originally insisting that CPT Hill should face a general court-martial on war crimes charges and face the prospect of a dismissal from the Army (a dishonorable discharge) and years of confinement, the legal advisor to the commanding general asked that we quickly offer to accept administrative discipline by ART 15 non-judicial punishment and resign his commission and avoid a federal felony conviction.  CPT Hill agreed and now is back home awaiting word on his discharge from the Secretary of the Army.

Puckett & Faraj PC

Neal Puckett and Haytham Faraj are criminal defense and general litigation attorneys and partners in the The Law Firm of Puckett and Faraj, PC.  They have decades of trial experience defending those accused of criminal charges in federal and military courts-martial. Mr. Puckett and Mr. Faraj also represent clients in a variety of administrative hearings including Boards of Inquiry, Administrative Separation hearings, immigration removal hearings, Boards of Corrections of Military and Naval Records, Military Discharge Review Boards and National Security Clearance hearings, among others. Neal Puckett and Haytham Faraj have also represented those who have been harmed or injured by the negligence, recklessness, or deliberate acts or failures of others.

One of the main concerns of the American people is not that the US Government undertook the detention of unlawful combatants in Guantanamo Bay, Cuba, but that we have been so slow to adjudicate their cases in some type of fair system of justice that provides due process.  The Obama Administration is discovering that just shutting it down is not so easy.  Guantanamo Case Files in Disarray.  What do you do with the detainees?  Where do they go?  How will we provide them with fair trials to determine their guilt or innocence?  It seems that the full information for each detainee is spread throughout the Executive Branch in various agencies who have refused to fully share it.  What little information we do have about them is that there are some very dangerous people there.  There may, however, be some not so dangerous people who were merely in the wrong place at the wrong time.  Some sort of fair judicial process should be used to make those determinations and either punish (by appropriate terms of confinement) or release these people.

Puckett & Faraj PC

Neal Puckett and Haytham Faraj are criminal defense and general litigation attorneys and partners in the The Law Firm of Puckett and Faraj, PC.  They have decades of trial experience defending those accused of criminal charges in federal and military courts-martial. Mr. Puckett and Mr. Faraj also represent clients in a variety of administrative hearings including Boards of Inquiry, Administrative Separation hearings, immigration removal hearings, Boards of Corrections of Military and Naval Records, Military Discharge Review Boards and National Security Clearance hearings, among others. Neal Puckett and Haytham Faraj have also represented those who have been harmed or injured by the negligence, recklessness, or deliberate acts or failures of others.

We, at the law firm of Puckett and Faraj, PC, consistently get positive feed back from our clients about the level of personal service and attention that we provide.  We take a personal interest in every case.  We discuss the cases.  We contemplate the client’s options and what is in her or his best interest because we want to ensure that every client receives the best legal service possible.  That level of attention and service is uncommon in the legal profession.  Unfortunately few people realize that and are often drawn only by commercials and glitzy advertisements to lawyers and law firms that are vocal on TV and other media but provide no little or no service to the client.  One such firm is the James Sokolove firm.  It appears that Mr. Sokolove has not tried a case in over three decades; yet he draws tens of thousands of clients a year.  It leaves one to wonder whether clients realize that they are trusting their lives and paying their hard earned money to someone who does not practice law when they call his number after they get it from one of his ubiquitous commercials.

Puckett & Faraj PC

Attorneys Neal Puckett and Haytham Faraj specialize in criminal defense and trial work.  They are partners in the the premier litigation law firm of Puckett and Faraj, PC.  They have decades of trial experience defending those accused of criminal charges in federal and military courts-martial. Mr. Puckett and Mr. Faraj also represent clients in a variety of administrative hearings including Boards of Inquiry, Administrative Separation hearings, immigration removal hearings, Boards of Corrections of Military and Naval Records, Military Discharge Review Boards and National Security Clearance hearings, among others. Neal Puckett and Haytham Faraj have also represented those who have been harmed or injured by the negligence, recklessness, or deliberate acts or failures of others.

The partners take pride in providing client focused representation that seeks to ensure client accessibility to the attorneys and best in class service.  Puckett and Faraj, PC seeks maintain its position in providing the gold standard in legal representation.  The firm has offices in Alexandria, Virginia and San Diego, California.  The partners are licensed to practice in Illinois, Virginia, the Eastern District of Michigan and in all states and all over the world, including Iraq, Afghanistan, Germany, Italy, Japan, and Kuwait representing military clients.

Puckett and Faraj, PC. has been retained by Mr. Issam Hamama of El Cajon, California to defend him against charges brought by the U.S. Attorney in the Eastern District of Michigan.  Mr. Hamama, a former Iraqi citizen, served with the U.S. forces in Iraq over the last few years as a translator and cultural advisor to U.S. forces engaged in operations in Iraq.  Mr. Hamama’s charges stem from his efforts in the nineties as as an activist working to relieve the suffering of Iraqi children and civilians harmed by the U.N. sanctions against Iraq following operation Desert Shield and Desert Storm.  The case of Mr. Hamama is a companion case to several other similar cases in which some defendants pled guilty and at least one defendant was acquitted.

Puckett & Faraj PC

Neal Puckett and Haytham Faraj are criminal defense and general litigation attorneys and partners in the The Law Firm of Puckett and Faraj, PC.  They have decades of trial experience defending those accused of criminal charges in federal and military courts-martial.  Mr. Puckett and Mr. Faraj also represent clients in a variety of administrative hearings including Boards of Inquiry, Administrative Separation hearings, immigration removal hearings, Boards of Corrections of Military and Naval Records, Military Discharge Review Boards and National Security Clearance hearings, among others.  Neal Puckett and Haytham Faraj have also represented those who have been harmed or injured by the negligence, recklessness, or deliberate acts or failures of others.