Sunday, December 9, 2012


The military justice system is broken. It's hard to say how long ago this occurred because it takes a high profile case to gain attention. We may be used to absurdly long delays necessary to bring even the worst criminals to justice in the civilian system but the military system should be more efficient. Civilian courts are often back-logged because of too few judges whose dockets fill up. But military courts martial shouldn't have that problem. There are two egregious examples of this failure.

On November 9, 2009, Major Nidal Hasan, an Army psychiatrist was shot down in the act of attacking his fellow soldiers at Ft. Hood in Texas. Before he was wounded and disarmed he shot and killed thirteen soldiers and civilians and wounded 29 others.

Now, three years later, Hasan has yet to be tried. The time line for the relevant judicial process is incredible.

On December 2, 2009 formal charges of “attempted premeditated murder” with 32 specifications was filed against Major Hasan. Why the actual murder of his 13 victims was not a filing can only be explained as a legal tactic which needs further explanation. He was eventually charged with the murders.

The next step in military Courts Martial procedure is an Article 32 hearing which is the military equivalent of Preliminary Hearing in civilian codes which is used to determine if there is sufficient evidence to proceed to a General Court-martial.

On February 12, 2010, the Investigative Officer appointed to the Hasan case granted a defense request to delay the hearing. Thus the hearing was delayed from March 1, three months after charges were filed, to June 1, six months after charges were filed.

On June 1, 2010, the Investigative Officer granted the defense request to delay the Article 32 hearing to October 4, 2010, ten months after charges were filed.

On October 12, 2010, after another eight day delay, the Article 32 hearing was finally convened and completed on October 20, 2010.

So it took more than ten months to hold a hearing to determine if there was “enough evidence” to try the defendant who was shot down in the act of killing and wounding 37 people in front of many others. To support the charges, the military prosecutors used the testimony of 56 witnesses, including many of the victims, and after ten months the hearing was uncontested as the military defense attorney declined to present any evidence and neither side offered a closing statement. Incredible.

The next step was for the Investigating Officer to complete his recommendations to the court martial convening authority, a Colonel Morgan Lamb, so that the court-martial could proceed.

On January 25, 2011, more than thirteen months after charges were filed, Colonel Lamb granted a defense request to further delay the case until February 23, 2011 after which Lamb would “decide what action to take or recommendations to make as a convening authority in the case.”

On March 4, 2011 the convening authority, Colonel Lamb recommended to Lt. General Donald Campbell, commander, III Corps that the charges against Major Hasan be sent to General Court-Martial.

Incredibly, it took General Campbell until July 6, 2011, four months after Colonel Lamb's obvious recommendation, and eighteen months after Major Hasan was charged, to “refer” Major Hasan to general court-martial.

On July 20, 2011, Major Hasan was “arraigned” and his rights explained. Hasan deferred a plea. The assigned military judge, Colonel Gregory Gross then granted a defense request to delay the trial until March 5, 2012, seven and a half months after the arraignment and two years and two months after the shootings occurred and charges were filed.

On October 27, 2011 a pre-trial hearing was held to consider motions in the case. And so the legal dance so familiar in civilian criminal courts continued. The military defense lawyers continued what can only be described as further delaying tactics, demanding that the judge answer questions about the personal impact of the shooting on himself and his family members. They also requested “expert assistance” to hire a media consultant to determine the impact of media coverage on potential jury members who would all be military officers, as previously agreed by Hasan. The defense further requested a jury selection expert to identify and dismiss “biased” panel members.

On November 30, 2011 the defense, requested that Colonel Gross recuse himself from the trial because of “the appearance of bias as a judge”. Colonel Gross denied this request. The defense then argued that Hasan's constitutionally protected “right to life” would be violated if he were to be found guilty and sentenced to death and that the rules under the Uniform Code of Military Justice (UCMJ) are different from civilian court rules so using these rules violate the Equal Protection clause of the Constitution and the case could not be tried as a capital punishment case. This is certainly a strange position to be taken by military attorneys familiar with the history of capital punishment cases of general courts-martial and absurd on its face as Hasan was a military officer subject to the UCMJ.

On February 2, 2012 the judge rescheduled the trial date to over two years since the shootings occurred, in response to defense attorney's claim that they “needed more time to prepare”.
The defense also filed a motion to compel the prosecution to provide them with notes from meetings and conversations between the President of the United States, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, and other high-ranking officials in the aftermath of the shooting on Fort Hood on November 5, 2009. The defense attorneys requested the notes so they could determine if any matter was discussed which may have unlawfully influenced the independent discretion of Hasan's chain of command to prosecute him.” How could Hasan's chain of command decide not to prosecute him? This ridiculous motion was later denied.

On April 18, 2012 the judge set a new trial date of August 20, 2012, to allow the defense “more time to prepare”.

On June 8, 2012 the issue of the defendant's appearance surfaced when he appeared in court with a full beard in violation of Army regulations. The judge ordered Major Hasan to be clean shaven or to watch the proceedings via closed-circuit television from outside the court room. Pre-trial motions were delayed for this issue to be settled. On June 19, 2012 the defendant again appeared in court with a beard which he claims is a religious necessity and a protected right. The judge then required him to view the proceedings via closed-circuit television. In subsequent pre-trial hearings Judge Gross found Hasan to be in contempt of court and indicated that he might have him forceably shaved.

On August 15, 2012, the Court of Appeals for the Armed Forces, in response to an appeal by the defense, stayed the trial indefinitely so the appellate court could consider if Gross can order the accused forcibly shaved. The CAAF is the highest level appellate court in the military, and is made up of five civilian judges, and oversees military justice for all armed forces.

On October 12, 2012, the CAAF heard arguments over the issue of Major Nidal Hasan's beard.

On December 4, 2012 the Court of Appeals for the Armed Forces removed judge Colonel Gross from the case asserting that the beard contest seemed to indicate a “bias” against the defendant. The Army has appointed a new judge. Months of pre-trial motions must now be re-heard by the new judge as the entire process is started over.

The facts remain. U.S. Army Major Nidal Hasan did, on December 9, 2009 shoot and kill thirteen soldiers and civilian military employees and wound 29 others in a premeditated act. He was gunned down and arrested on the scene. Now after ten months to determine if there was “enough” evidence to bring him to trial and after three years to date of procedural roadblocks by the military and civilian defense team, the entire process will be further delayed over the defendant's “right” to have a beard. This of course is part of the strategy of both the civilian and military defense counsel establishments. It represents the victory of procedure over the pursuit of justice. 

The concept of a “fair trial” has been distorted beyond the realm of common sense and now includes any allegation, any “alternative theory of the crime” no matter how ludicrous, any claim of mitigating factors, and any claim that violent acts which are often irrational by their very occurrence are also evidence of “insanity” even if that evidence conveniently disappears after the act. The old saying that “Justice delayed is justice denied.” now seems almost irrelevant by the level of disregard with which is treated.

The case of Army Private Bradley Manning is turning into another theater of the absurd. Briefly, Manning was arrested on May 26, 2010 and charged in July with various offenses related to the unauthorized release of hundreds of thousands of pages of classified military and diplomatic material which he provided to the Wiki-leaks web site.

Manning had an Article 32 hearing on December 26, 2011, one year and seven months after his arrest. He was arraigned and set for general court on February 23, 2012. Trial is set for February2, 2013, one year after his arraignment. Like the Nidal case, there is no question about Manning's guilt, not withstanding the oft repeated admonition that he is “innocent until proven guilty in court”. The evidence is overwhelming and consists of material found in his possession, communications admitting his acts to others and the fact that Manning has offered to plead guilty to some of the charges if the more serious charges are dismissed. In the face of these facts, Manning's civilian lawyer is focused on other issues. Essentially he is asking that all charges against Manning be dismissed because of his long pre-trial incarceration. As a backup, the current pre-trial motions have or will, contend that the initial incarceration at the Marine Corps Brig at Quantico, VA was “improper” and “cruel” because Manning was on “preventive injury status”, which required frequent observation and removal of clothing that he could have used to injury or kill himself.

The charges against Manning are serious, including aiding the enemy, which could result in a sentence of life imprisonment. But the latest testimony even before the trial begins has included the defense attempting to accuse a former Marine supervisor of the Quantico brig with “making light of Manning's homosexuality by referring to Manning's underwear as “panties” in a staff memo.
If the trial begins as scheduled it will be almost three years since Manning's arrest and the issues of guilt and justice have long since been lost in the legal clutter and maneuvering. 
Major Nidal and Private Manning will both be convicted, although political pressures i.e. political correctness, might spare Nidal from the death penalty which he certainly deserves. This is after all, the same Administration whose Defense Department classified the Nidal murders as “workplace violence”, as if Hasan was some berserk postal employee instead of the jihadist terrorist that he is.
Manning has become an international celebrity in the minds of anti-American, anti-military pacifists here and abroad who believe he is a courageous whistle-blower trying to expose injustice. In fact he is a very troubled individual with a history of erratic behavior. The idea that he read the hundreds of thousands of pages of classified materiel so he knew what he was exposing is absurd. In fact he admitted prior to his crimes that he was having gender identity problems and suffering from feelings of alienation and unhappiness with his situation in the military. In the face of the evidence and his own admission of guilt he will have to be convicted but the prosecution may in the end agree to plead him down to the lesser charges and the judge may reduce his sentence for time served. 
Once again, the wounded and the families of the fallen in the Hasan case and the damage done to important national security interests in the Manning case have been forgotten as the defense attorneys, with the passive compliance of the judges, twist reality to make their clients the victims. Hopefully justice will eventually prevail in both cases, but the military judicial process has been exposed as seriously flawed in the same way as the civilian process. Unfortunately the rule makers are civilian legislators and staff members who are predominately lawyers.

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