Press Release:  The government requested Major General Cleveland order a deposition of the mass murderer accusing the three Navy SEALs of abuse.   This deposition would take place in Iraq in lieu of the insurgent’s presence in a courtroom at the Norfolk Naval Base, VA.  The deposition would be in the detention center and requires travel to Iraq; adding to the government expense of the courts-martial of the three Navy SEALs, as well as to the cost of private legal expenses for all three SEALs who have hired civilian attorneys to represent them.

Demonstration of Efforts to Produce the Accuser

The government appears not to have attempted to coordinate the insurgent’s travel to the United States to testify in the three courts-martial of these SEALs.  They are assuming it would be too difficult, requiring Department of State intervention and permission from the Iraq government to assure the detainee’s custody during travel to the United States for the courts-martial.  Instead, the government is requesting a deposition, and is doing so without first demonstrating all attempts to have the accuser in court have failed.

Deposition in Iraq

A military judge can admit into evidence a deposition of someone who cannot attend a court-martial only if all other remedies to get that individual to the courtroom failed.  If Major General Cleveland approves the request, the government will travel to Iraq to ask the insurgent questions.  While military attorneys can attend, the accused Navy SEALs have the option of attending, and the civilian defense attorneys would be invited as well.  But the government will not pay for their travel or accommodations for the law firms representing SEALs.

A Fair Trial

A deposition where both the government and the defense have an opportunity to question the detainee on the record may be admitted in a military court.  However, it denies the Navy SEALs the their full Constitutional right to confrontation of their accuser during military judicial proceedings in the courtroom.  A court-martial allows the members, known in the civilian courts as a jury, the opportunity to ask questions of the detainee.  But if a deposition is presented to the military jury, they will have no opportunity to ask questions.  If the government does not bring the insurgent into court, the defense will be hampered in their pursuit of justice for the Navy SEALs.

Some Discovery Still Withheld

SO2 McCabe’s defense team has recently received a portion of the discovery (“evidence”) against him.  Other parts of it remain classified and are being withheld until the Navy approves the clearance of the civilian attorneys.  In the meantime, full preparation for the defense of SO2 McCabe cannot occur until all evidence is available and the disposition of the insurgent’s presence at the court-martial is resolved.

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.

Military members who are found guilty by a military court-martial often are sentenced to confinement, reduction in rank, forfeiture of pay and/or an assessment of a fine and a discharge from the military. The military member can request a deferral and waiver of the forfeitures of pay to support his or her immediate family members for up to six months after the commander approves the sentence and the deferral.

Manual for Courts-Martial

The Manual for Courts-Martial, which applies to all the Services’ military justice systems, identifies the procedures for requesting a deferral and waiver of forfeitures of pay to support dependents. Immediately following the military hearing, the record of the trial is prepared and sent to the court-martial convening authority for approval. A request for deferral and waiver can be submitted along with the record of trial to the convening authority for his or her consideration.

Reasons for a Waiver and Deferral

Forfeitures can be deferred until the convening authority takes action on the findings and sentence and a waiver can be granted for up to six months thereafter under Rule 1101 of the Manual for Courts-Martial. Deferring and waiving automatic forfeitures resulting from a sentence to confinement can provide for continuing dependent support for that limited period of time. The convening authority may consider factors such as the length of the accused confinement, the number and ages of the family members, debts owed and ability of the family members to find employment.

Military Defense Attorney

This deferral and waiver provision allows military family members to continue to meet financial obligations while transitioning to new circumstances outside of the military environment. Each military case is unique in facts and circumstances, however the military defense attorney can assess whether or not the request for deferral or waiver of forfeitures should be pursued either as a condition for a plea bargain or a matter for clemency after the court-martial concludes.

On September 29,2009 a federal appeals court in Washington DC upheld the DoD program that requires some military members to be vaccinated against anthrax citing valid scientific analysis by the FDA. The defendants in the lawsuit failed to provide proof of the negative effects of the vaccine. DoD has published policy in December 2006, defining the requirements for the mandatory vaccination.

Mission Essential Members

All active duty, selected reserves, and emergency-essential or mission-essential US government employees, contractors and contract Mariners who are in the USCENTCOM area of responsibility for a minimum of 15 consecutive days or on the Korean Peninsula, are required to take the series of six shots plus annual boosters.

Failure to Comply

The Services issued guidance in February and March 2007, defining the specific procedures for their branch. The Army policy specifically states that those members in the mandatory category who refuse to take the vaccine first requires counseling to the member and then charging them under the under UCMJ Art 92 for failure to obey an order. All military members and emergency-essential government civilians can be disciplined for failure to take the vaccine. Mission-essential contractors will be removed from their duties in the forward locations.

Military Justice Charges

The military service members who brought the appeal to the federal courts have not decided whether or not to continue the appeal to the next level. In the meantime, any military member who refuses the vaccinations prior to deployment to OIF/OEF will be prosecuted under the UCMJ.

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.

The Office of the Judge Advocate General of the Air Force published their Air Force wide courts-martial schedule on line this last month. This approximately three month schedule shows the location, name, rank, and charges scheduled for courts-martial.

Transparency in Federal Law

The Air Force is leading the services in providing this information to the public. Military law, as outlined in 10 USC, is federal law, practiced globally by the military. Federal courts are open to the public showing transparency in the execution of federal law. The military justice system is no exception to this and has always had open courts. The issue has been centralizing the information so the members of the press and public could attend. Now the Air Force has remedied that by publishing their schedule beginning with September 2009.

Centralization of Military Court Case Schedules

It’s not a right of the accused, nor has DoD prohibited public attendance in military courts-martial in the past. The information can be found through public affairs of all the Services, but usually, only the local authorities at an installation are aware of their individual court cases. This step by the Air Force adds easy to find information and improves transparency to a process organized within military regions and fleets.

Promotes Understanding of Military Justice

Publishing the courts-martial schedule in advance, promotes a better understanding of the military justice system so the press and public can follow a specific case via the local installation or community press or attend in person.

Public Access Exceptions

The military courts have always been open to the press and public. The exception would be where a military judge excludes a portion of or specific testimony in the hearing where classified information is being discussed or for a specific reason such as protection of a vulnerable witness.