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

Purpose of a Board of Inquiry

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

Board Members

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

Rights in a Board of Inquiry

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

Secretary of the Navy

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

The Associated Press reported this week that the Marine Corps dropped charges against Sgt Jermaine Nelson in the death of detainees, one of four men who surrendered when the squad entered a house in Fallujah in November 2004. The wiliness to plead guilty to the lesser charges on the charge sheet were negotiated in a plea bargain, but Sgt Nelson still faced a court-martial with possible sentencing to prison, a dishonorable discharge, a felony conviction record and ineligibility for any Veterans Administration benefits.

Military Justice Process

Sgt Nelson, through his civilian attorney, worked a plea bargain deal prior to the court-martial with the government military trial team (prosecution). This was not a case of the government dropping the charges of murder or not holding the court-martial, but a case of the military justice process working correctly given the evidence in the case.

Information to Suspect a Crime

The process begins when a commander is informed of something irregular during an operation. This information can be through the chain of command by someone reporting comments they hear from other military members or by other military members who witnessed the action. In this case, a squad member of Sgt Nelson’s, was applying for a job with the FBI in 2006 after leaving the Marine Corps. During a polygraph test for entrance into the FBI, this squad member confessed to the shootings. The FBI turned the evidence over to the Marine Corps who requested an NCIS investigation.

Evidence and Appropriate Punishment

The evidence was gathered and charges preferred against three of the squad members. Two were acquitted including Sgt Nelson’s squad leader, setting a precedence that the evidence and facts of the cases did not support murder charges. Sgt Nelson’s military attorney reviewed the specific evidence against his client, and determined the failure on his client’s part to be a lesser charge rather than murder or voluntary manslaughter. He negotiated with the government for a plea bargain and superseded the court-martial proceedings with the plea. During the court-martial, the government accepted the guilty pleas for lesser charges based on the evidence and facts of the case. Punishment for those lesser charges was set by the judge but superseded by the negotiated plea bargain agreement.

The LA Times Blog was the first to reported that a Marine Officer, Capt Douglas Wacker, would be arraigned on August 18, 2009 at the Marine Corps Recruit Depot, San Diego. He is facing charges of rape and indecent assault for an alleged incident with former girlfriends.

District Attorney Declined to Prosecute

The District Attorney in New Orleans, where the alleged incident occurred, declined to press charges after an investigation. Yet the Marine Corps insists on resurrecting this alleged event apparently to demonstrate that it’s cracking down on sexual assaults.

Wacker’s Defense Attorney – Haytham Faraj

Capt Wacker’s defense attorney, Mr. Haytham Faraj, of the Law Firm of Puckett and Faraj, stated there was no rape and that Captain Wacker engaged in consensual sex with other University of San Diego Law students. The University cleared him of misconduct but is withholding his law degree pending the outcome of his court-martial scheduled for February 8, 2010.

The Marine Corps has banned Social Networking sites like Facebook and Twitter from their unclassified computer network for at least a year. This was based on a warning from US Strategic Command of the possible cyber attacks and loss of critical information about the military to any enemy forces monitoring the sites.

Social Networks Help Us Keep In Touch

At first glance this seems unfair of the military to take away a source of communications with a loved one on the battlefield. It is comforting to get messages from our Soldiers, Marines, Sailors and Airmen when they are deployed for long periods of time. But that information can be used against them. Anyone monitoring Facebook or MySpace can piece together little bits of information in separate entries. An innocent entry about having to go out on patrol near a river the next day, could set the military member up for a surprise attack, where they could be seriously injured or killed.

Operational Security

Any talk about what happened on patrol the day before could lead to military criminal investigation if the commander or First SGT hears of it. A civilian friend could share it with a friend of theirs who is in uniform, and that information could get relayed to the Service. One of the commander’s responsibilities is to ensure strict communication and operational security. If any of his or her troops are commenting on a patrol happening in the future, that’s a violation of operational security.

Military Justice Steps In

The military justice system not only could step in, but if there is probable cause to believe there was a sharing of critical information on an open source computer, investigators may ask the base commander for a search authorization and take your home computer for analysis. Those military members who live off the base aren’t exempt. The military investigative service can with probable cause, get a civilian judge to issue a warrant for your home computer. Take care about what you say on an “open” communications source. Your military career and possibly your life depend on it.

The recent release of the new US battle rule to stop return fire on Afghan homes is intended to limit the collateral damage on the battlefield.  This adds to the rules of engagement (ROE) and further restricts the military in combat actions.  There are good military and political reasons for this addition to the rules of engagement but a possible consequence is the increased need for military justice.

Military ROE Training

ROE are trained and exercised by the military until every member of a unit is aware of and understands how to engage the enemy combatant.  This new ROE will require on the ground training in Iraq and Afghanistan and the military is very effective at getting the information out to each and every member in the field.

Military Member Responsibility

The individual application of the rules when faced with dire combat situations is a different matter.  As in all limitations on application of force, there might be an increase the incidents where military members, under duress, take action and are then held individually accountable for violations of the rules of engagement.

Violations of ROE

During Operation Iraqi Freedom and Operation Enduring Freedom, there have been several high profile media military justice cases involving military members killing civilians.  Examples include the Sadr City case where an Iraqi was deliberately shot in his home and another was dispatched in a “mercy killing.”  The Hamdania Case, where 8 Marines and 1 Sailor were accused of killing an Iraqi civilian instead of the suspected Al Qaeda fugitive they set out to kill.  The Haditha case, where 24 Iraqi civilians died after an IED explosion killed one Marine and seriously wounded two others.  The Haditha military case is still pending for 2 of the 8 originally accused.

Military Good Order and Discipline

Restrictive rules of engagement support good order and discipline on the battlefield along with ensuring safety in a dangerous environment.  The military lawyers, schooled in the law of war, provide battlefield assessments of each military action for commanders.  But they are not there, fighting hand-to-hand with the frontline military members who make decisions under duress.  The hope is that this new ROE can be applied to the battlefield to prevent unnecessary loss of civilian lives and actions of individual military members when called upon will not violate the new ROE.

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.