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.

Expert Witness Doesn’t Testify

His military defense attorney discovered very late in his military trial that a government blood spatter expert was prepared to testify that his conclusions tended to corroborate 1LT Brehenna’s version of how he came to kill the Iraqi detainee.  The discovery apparently came too late in the military trial for the expert to testify in front of the court-martial jury and possibly raise reasonable doubt that may have led to his acquittal on the theory that he acted in self-defense.

Military Defense Attorney Requests A New Trial

Immediately after the trial, the military defense lawyer requested a new trial that was denied by the military judge.  The military defense attorney argued that prosecutors violated a time honored legal mandate that evidence that may tend to exculpate the accused military service member be turned over to the military defense lawyers as soon as it is discovered.  Prosecutors were apparently well aware that their expert had reached conclusions that supported the military defense theory, since they did not call him as a witness in their case against LT Brehenna.

Prosecution vs Military Defense Lawyers

Did the military prosecutors violate the legal requirement to let the military defense attorneys know about the expert testimony that might buttress their case?  Did the military defense attorney interview the government expert in advance of the military trial to find out what he would say, despite the prosecution’s failure to inform him?  Would the evidence have raised reasonable doubt that may have caused the military jury to acquit the accused military service member?  Will this issue cause the Army Court of Criminal Appeals to reverse LT Brehenna’s conviction and permit him to have a new military trial?

Experienced Military Defense Attorneys

A superb military defense attorney addresses each of these types of questions during a military trial.   These are the details that make the difference between winning a losing a court-martial or a military appeal.  These are the details only an experienced and knowledgeable military criminal defense attorney can leverage to win your case.

By Bob Weimann
LtCol, USMC Ret.
Former Commanding Officer Kilo Company, 3/1

“The time is ripe for a public debate on the double standards that tie our hands in combat while making it easier for the enemy to cut them off.” Capt Roger Hill; former commanding officer Dog Company, 1st Battalion, 506th Infantry Regiment, 101st Airborne Division

CPT Roger T. Hill
I recently had the privilege of meeting Captain Roger Hill. The introduction and short discussion occurred over the phone while on a recent blog talk radio program.  The Captain is a professional, intelligent, soft spoken, thoughtful officer with that inner strength that shines through in something we use to call exceptional character. Captain Hill’s story is getting to be a familiar and almost routine saga for many our American warriors. The Captain was the commanding officer of Dog Company, on deployment to Afghanistan when, in his commanders opinion, he abused detainees and committed a war crime.

Military Legal Process
I am sure that the Army Generals and the Pentagon crowd think that his legal proceeding is the way to demonstrate Army control and discipline. I, however, feel that it demonstrates the double standard that the US military general officers use to please their political Washington masters. I also think that it under minds the US strategy for fighting these wars. I think historians will eventually place this strategic shortcoming on the shoulders of not only the general’s but also the civilian leadership, like you Mr. Secretary.

US Predator Strikes
Almost everyday we see and read about UAV strikes that kill our enemies with Hellfire missiles. Here are two recent examples:

US Predator strike in South Waziristan Kills 25
By BILL ROGGIO February 14, 2009 2:02 AM
The US launched an airstrike inside of Pakistan’s tribal areas early Saturday morning … An unmanned US Predator strike aircraft fired two missiles into a compound … Twenty-five extremists, most of them from Uzbekistan, were killed in the strike

US Airstrike in Pakistan’s Kurram Tribal Agency Kills 30
By BILL ROGGIO, February 16, 2009 8:47 AM
The US appears to be expanding its campaign of cross-border strikes into Pakistan after several unmanned US Predator aircraft conducted multiple attacks in the Taliban-controlled tribal agency of Kurram. More than 30 people have been reported killed after four Predator aircraft launched at least four Hellfire missiles …

Hellfire Missiles Kill Zarqawi
The Hellfire was originally design to destroy tanks and bunkers and its lethality is famous. The missile exists in a number of variants but generally possesses a warhead with about twenty pounds of explosive and an Effective Causality Radius (90% probability of killing a person within the radius) of about 20 meters. This warhead is usually enough to ensure not only the death of the individual terrorist but also anyone else that happens to be in the targeted house or its general vicinity. Additional causalities are routine and this body count is usually written off as collateral damage. The interesting part is that no one ever charges the generals with murder for conducting these operations and we know that civilians are being killed.  We took out Zarqawi in Iraq with two 500 lb bombs and US citizens even got to watch it on their TV’s in their living rooms.  In the rubble of that Iraqi house, we not only found Zarqawi’s body but also five others including the bodies of a woman and a child.

Compared the above headlines to the two Haditha incident headlines below:

US Marines Charged With Murder, Other Crimes in Haditha Killings
By Mike O’Sullivan, Los Angeles, 21 December 2006
Four U.S. Marines have been charged with murder in the killing of 24 Iraqi civilians in the city of Haditha November 19 2005.

Congressman Murtha: Marines Murdered 15 Unarmed Iraqi Civilians
James Joyner , Thursday, May 18, 2006
Rep. Jack Murtha, who came on our radar screen as a “hawk” (although always an opponent of the Iraq War) who called for rapid pullout of troops from Iraq on the basis that our mission has failed, has told the press that the Marines have killed Iraqi innocents in cold blood.

Haditha Marines, Four Years Later
Five of the Haditha Marines never went to trial for lack of evidence. One other was found not guilty on all counts. The senior Marine officer’s case, charged in the incident, was dropped for undue command influence; and the last charged Marine sits in legal limbo because the Marine prosecutors can not collect enough evident to bring him to trial.

Military Courts Martial
Looking at the above headlines and the trial results, the question then becomes: Why is there this seemingly double standard? One standard for Soldiers and Marines, fighting face-to-face with the enemy and one for generals (and their civilian leaders), sitting comfortable in air conditioned headquarters, killing civilians with “precision” bombs.

Law of War
The answer is relatively simple, at least in this old Marine’s mind. General officers have and use the Laws of War as their standard to protect themselves. They also use the Rules of Law to “judicially water board”  the combat troops fighting at the eyeball-to-eyeball level to satisfy and relieve any pressure they receive from the Washington political leadership.

The Laws of War have many names to include: Law of Force, Laws and Customs of War, Law of Armed Conflict, International Humanitarian Law, or the Geneva and Hague Convention. The Laws of War “is the legal corpus comprised of the Geneva Conventions and Hague Conventions, as well as subsequent treaties, case law, and customary international law”.  It defines the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning “civilians.” US military forces ROE (Rules of Engagement) are based on the Laws of War.

With the Laws of War, the principles of military necessity, distinction and proportionality are in play. For example, the Laws of War state that the killing of civilians is to be avoided but can occur because of “military necessity”. The laws also state that the “field commander” determines military necessity. For example, in the above hellfire missile strikes, I am sure the commanding general or “field commander” determined that the killing of civilians is a military “necessity” and that the precision bombing (with a warhead containing twenty pounds of explosive) is “proportional” for the target.

Rules of Law
The Rules of Law “is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed law adopted and enforced in accordance with established procedural steps that are referred to as due process”.  For example, killing civilians is considered murder and the concepts of legal equality, presumption of innocence; Habeas Corpus, constitutional rights, etc., are in play. The Rule of Law is also supported by a complete system of investigative police, lawyers, prosecutors, judges and courts.

Haditha Military Court Martial
In the Haditha case, military necessity and proportionality is never discussed and instead we see the Rule of Law charges of murder. Is this a double standard?
Incredibly, this politically correct gimmick the US military leadership is using now seems to be institutionalized down to the battalion level.

Captain Roger T. Hill’s Headlines

U.S. Troops Investigated for Abuse of Afghans
01 Dec 2008 15:21:05 GMT Source: Reuters
KABUL, Dec 1 (Reuters) – Two U.S. soldiers based in Afghanistan are being investigated for alleged abuse of Afghan detainees, the U.S. military said on Monday.  Captain Roger T. Hill and 1st Sergeant Tommy L. Scott, both of the 1st battalion, 506th Infantry Regiment of the U.S. Army will be investigated under Article 32, the military equivalent of a civilian grand jury hearing. In 2005, two U.S. soldiers were charged with abusing Afghan detainees at a base in the Uruzgan province in southern Afghanistan and media have alleged abuse of prisoners at Bagram, the U.S. army’s main base in Afghanistan.

Two More Army Soldiers Charged With War Crimes
Dec 15, 2008
Captain Roger Hill and his first sergeant, Tommy Scott, are the two latest victims of the military justice system. They are charged with war crimes, dereliction of duty, and more after an incident where the government says Afghan detainees were abused.  Let’s look at the government’s version of “abuse”…

Ambushes in Afghanistan
What Captain Hill did on his base in Afghanistan is not in dispute. The Captain has demonstrated an honesty that is exemplary in this affair. The Captain was taking causalities in his less than 90 man company to the tune of thirty wounded and two killed. His company was being routinely ambushed and the last ambush accounted for his two killed-in-action soldiers.

US Military Killed in Action
A similar ambush in Captain Hill’s area of responsibility provides a standard in which to measure the tenacity and barbaric nature of the enemy Captain Hill and his men faced.  In this ambush, it was Captain Hill and his men who took the responsibility of recovering missing body parts of U.S. service members from another unit who were mutilated by the same enemy. The body parts were intentionally cut off by the enemy, sold and passed around at the local market as souvenirs. Insurgents like to do such things; it demonstrates their power and diminishes our forces protection of local Afghan citizens to a bad perception.

Capture of Loyalist to Al Qaeda
The Captain, based on the ambushes and intelligence he gathered, is suspicious of his Afghanistan military partners who also help man his Forward Operating Base defensive perimeter. He sets up a sting operation and catches 12 Afghanistan soldiers, including his interpreter, again facilitating another ambush. The Captain takes those 12 Afghan soldiers into custody and informs his battalion what has happened.

Interrogation of Al Qaeda
Apparently, the Army has formalized their catch and release program in Afghanistan by establishing a 96 hour rule for the release of detainees. For the next 80 hours (3 plus days), Roger Hill tries to get help from his battalion headquarters. At hour 80, isolated in “only god knows where” Afghanistan, with the clock running out, he takes matters into his own hands and with the help of his First Sergeant conducts an interrogation.  His initiative is rewarded with charges of “detainee” abuse and other crimes. His additional reward is his discharge from the Army and his First Sergeant losing a stripe.

Detainees in Afghanistan
The issues in this case with Captain Hill’s chain of command, regarding bad leadership and bad counter-insurgency strategy, are almost uncountable but let’s concentrate in the Laws of War. The “detainees” are not detainees by any definition to include DOD Detainee Program Directives.  These 12 Afghanistan soldiers are in a completely different category called “spies”. The Laws of War state:

Geneva Convention, Article 29
“Art. 29. A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavors to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party.”

Treatment of Spies
Under the Laws of War, spies are not entitled to prisoner of war status. Spies must be isolated in order to prevent the enemy from using the military information they possess. They are also to be placed on trial because spying is a war crime and if convicted, they can be executed. The DOD’s own regulations basically define “detainee” as an enemy combatant, a prisoner of war, or a civilian and does not include spies.

Army Counter-Insurgency Strategy
Counter-insurgency strategy calls for small units to fight over disbursed areas in isolated villages and requires small unit leaders to show initiative. Because Captain Hill is the senior commander of an isolated base, he is, in fact, the “field Commander” for this situation. His battalion headquarters also significantly contributes to this justification by not responding to his repeated requests. As the field commander, he has the authority to determine military necessity.

Law of War
As the small unit leader, the Captain realized the enemy has the upper hand in the intelligence battle and it is costing his soldiers lives. The military necessity is clear that Captain Hill needed to determine how this spy network is working and operating. In order to confirm the spying, he conducts his own interrogation to preserve his soldier’s lives. The interrogation then nets 12 spies.  His interrogation is proportional because his prisoners are not physically harmed, as verified by medical authority. To avoid any physical harm, Captain Hill runs a ruse on the spies by creating a deception that he will execute them if they do not cooperate.

Haditha Military Justice Defense
In the Haditha incident, we can see the same Law of War principles in play. The Haditha Marines were ambushed and military necessity dictated that they conduct a counter attack in order to preserve their lives. Civilians were killed because the enemy is committing a war crime by using civilians as a shield. The attack is proportional because the Marines use only their authorized squad weapons. Proportionality is further reinforced because the Haditha squad did not call in artillery, airstrikes or Hellfire missiles.

Counter Insurgency Warfare
Any good military officer that knows anything about counter-insurgency warfare see’s Captain Hill’s sting operation for exactly what it is: an intelligence windfall and bonanza. In counter-insurgency warfare, intelligence is everything and it needs to be the primary driver in all military operations.

Interrogation of 12 Spies
Captain Hill’s chain of command from his battalion headquarters to the CENTCOM offices in Tampa, Florida should have lit-up like a Christmas tree when he requested help in interrogating 12 spies caught passing information to the enemy. Captain Hill’s leaders should have flooded him with interrogators, because, if properly done, these 12 “detainees” could have potentially identified the entire shadow network existing in not only Wardak Province but also a good portion of Afghanistan. In others words, an economy of force operation conducted by a small infantry company, could have given the Afghanistan War a victory with an entire province as the prize. Hundreds of UAVs and Hellfire missiles operating around the clock could not achieve the same prize.

Now here is the kicker Mister Secretary. DOD and all Service Directives state the same order very clearly. These directives order that: “All reportable incidents” (of Law of War violations) … “are promptly reported, thoroughly investigated, and, where appropriate, remedied by corrective action” … whether “committed by or against US or enemy persons…”   [Emphasis added, DODD 5100.77, 9Dec98, "DOD Law of War Program"]

Military War Crimes & Military Justice
We are all painfully aware of how many war crimes our forces have been committed and how many of these legal proceedings are viewed as an unfair double standard. We are also aware that our enemy does not take prisoners (expect to record their public execution by beheading); we are aware that the enemy routinely uses civilians as shields; and we are aware the enemy spies in order to commit these war crimes. To this date, we have yet to see any legal action against a single enemy combatant that committed any of the above war crimes against our troops.  What does that say about the job the Service Secretaries (like yourself) and the Washington generals are doing in leading the US Armed Forces in this war?

Vacate CPT Roger T. Hill’s Discharge
Mister Secretary now is the time to vacate and void Captain Roger Hill’s and First Sergeant Tommy Scott’s Non-judicial Punishment and reverse the double standard that ties our soldiers hands in combat by unjustly charging and judicially water boarding our service men for political purposes.

4.  Remain calm even if you feel nervous.  Your movements and conduct may become the basis for the police officer to develop a reasonable suspicion of illegal activity which could, after further investigation, develop into probable cause that there is something improper.  Probable cause is all the officer needs to arrest you and begin an extensive search of your vehicle.

3.  If you are signaled to stop in a poorly lit or uninhabited area and feel uncomfortable about the location, slow down, call 911 and explain that you are being pulled over and feel uncomfortable in the location where you are being signaled to stop.  Have the 911 operator check to ensure that the person puling you over is in fact a police officer.  You may then ask the operator to communicate to the police officer behind you your apprehension and request to continue until you find a well lit area and possibly witnesses.

2. Be polite when answering questions, giving the police your license and registration and when addressing the police.  Aggressive behavior or language will not help your situation, and could provide more reason for the police to detain you or conduct a search.  A moving violation can be addressed with the courts and contesting the issue with police at the time of the violation is not the best way to achieve a positive outcome.

1.  NEVER consent to a search.  By asking you for permission to search, the police officer is telling you that he has no right to do it.  Becareful about the trick where the police officer returns all your documents and driver’s license and very nicely thanks you for being cooperative; then, as he is returning to his vehicle, he says “do you mind if I take a quick look inside your car?”  This trick is tried and tested and has been found to work almost everytime.  Resist the urge to say yes.  Say NO.  And even if you do say yes.  You can always change your mind and withdraw your consent.

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.  They have decades of experience in defending military members in courts-martial and administrative hearings.  They are also premier trial attorneys who have represneted  clients in a variety of cases.

4.  Remain calm even if you feel nervous.  Your movements and conduct may become the basis for the police officer to develop a reasonable suspicion of illegal activity which could, after further investigation, develop into probable cause that there is something improper.  Probable cause is all the officer needs to arrest you and begin an extensive search of your vehicle.

3.  If you are signaled to stop in a poorly lit or uninhabited area and feel uncomfortable about the location, slow down, call 911 and explain that you are being pulled over and feel uncomfortable in the location where you are being signaled to stop.  Have the 911 operator check to ensure that the person puling you over is in fact a police officer.  You may then ask the operator to communicate to the police officer behind you your apprehension and request to continue until you find a well lit area and possibly witnesses.

2. Be polite when answering questions, giving the police your license and registration and when addressing the police.  Aggressive behavior or language will not help your situation, and could provide more reason for the police to detain you or conduct a search.  A moving violation can be addressed with the courts and contesting the issue with police at the time of the violation is not the best way to achieve a positive outcome.

1.  NEVER consent to a search.  By asking you for permission to search, the police officer is telling you that he has no right to do it.  Becareful about the trick where the police officer returns all your documents and driver’s license and very nicely thanks you for being cooperative; then, as he is returning to his vehicle, he says “do you mind if I take a quick look inside your car?”  This trick is tried and tested and has been found to work almost everytime.  Resist the urge to say yes.  Say NO.  And even if you do say yes.  You can always change your mind and withdraw your consent.

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.  They have decades of experience in defending military members in courts-martial and administrative hearings.  They are also premier trial attorneys who have represneted  clients in a variety of cases.