Gunmen attack Fort Hood, Texas

[slapout9]

Originally Posted by Boondoggle

Call it 4GW, whatever, but that military courtroom, and the press, will become another battlefield in this war. Using our very own cherished institutions of a right to a fair trial and freedom of speech to wage war upon their very foundations. I worried this could become all kinds of worse, and we're one step closer to that it appears.

Boondoggle, to continue with your Line of reasoning, I think you will really see this happen with the upcoming trial in New York. Since the whole city was affected by 911 it is going to be near impossible to find an impartial jury and I imagine his lawyers who will wage Lawfare will bring that up right from the start.

[MikeF]

Originally Posted by slapout9

Boondoggle, to continue with your Line of reasoning, I think you will really see this happen with the upcoming trial in New York. Since the whole city was affected by 911 it is going to be near impossible to find an impartial jury and I imagine his lawyers who will wage Lawfare will bring that up right from the start.

You're assuming that he will plead not guilty. Putting on my jihad hat, I'd plead guilty b/c I knew my means justified the ends. That goes for Maj Hasan and the 9/11 clowns.

[davidbfpo]

The full WaPo title was 'Senate probe faults Army, FBI for missing warning signs before Fort Hood attack':http://www.washingtonpost.com/wp-dyn...020301899.html

For an outsider I noted these points:

..the FBI had compelling evidence of extremism that should have led to Hasan's military discharge and made him the subject of a counterterrorism investigation....higher-ups wrote his officer evaluation reports in a way that "sanitized his obsession with violent Islamist extremism into praiseworthy research on counterterrorism."

And for the lawyers:

Hasan's attorney, reacted to the latest report with outrage, saying the FBI and the Pentagon continue supplying e-mails and personnel files for such investigations but have withheld them from Hasan's defense in the course of the legal discovery process.

The report itself:http://www.washingtonpost.com/wp-srv...l?hpid=topnews

Which one day I may read in full.

[jmm99]

Solely in answer to your question regarding discovery by defendants under the UCMJ.

1. The UCMJ has liberal (pro-defendant) discovery provisions which are comparable to those under the Federal or Michigan Criminal Rules.

2. That being said, the defense lawyer has to ask in the correct way under the applicable law.

A good outline of UCMJ discovery and production starts at p.J-1 (p.255 pdf) of the 2010 Crim-Law-Deskbook_V-1.pdf (download link):

DISCOVERY AND PRODUCTION
TABLE OF CONTENTS

I. REFERENCES - 1

II. INTRODUCTION - 1

III. GENERAL - 2

IV. GOVERNMENT DISCOVERY RESPONSIBILITIES AND REQUESTS - 3

V. DEFENSE DISCOVERY RESPONSIBILITIES AND REQUESTS - 15

VI. REGULATION OF DISCOVERY - 18

VII. PRODUCTION - 23

VIII. CONCLUSION AND PRACTICE TIPS - 32

IX. APPENDIX - 34

The Appendix outlines the several dozen rules applicable.

All that being true, the USG is an octapus, whose multiple hands do not necessarily communicate. The largest discovery and production problems in the DC District and Circuit Gitmo cases (whose Federal judges have more practical clout than military judges with USG agencies) came about because consolidated databases did not exist for each detainee. The first octapus hand did not know what the eighth hand held.

So, the defense attorney may just be blowing smoke; or, he screwed up (asked the wrong question); or, the FBI and DoD are not communicating well. An intentional failure to disclose (in violation of the UCMJ) is unlikely; though, of course, "possible".

Regards

Mike

[gute]

Has a report come out on the shooting itself and the effectiveness of the 5.7x28 round?

[AdamG]

Originally Posted by gute

Has a report come out on the shooting itself and the effectiveness of the 5.7x28 round?

No, but there's one on the ineffectiveness of some officers.

WASHINGTON (AP) -- Nine Army officers are being reprimanded for leadership failures in connection with the shooting rampage at Fort Hood, Texas, and their failure to detect and report problems with the accused shooter, Maj. Nidal Malik Hasan, as he moved along in his medical career.

Saying that although no single event directly led to the tragedy, Army Secretary John McHugh found that certain officers failed to meet expected standards, an Army statement said Thursday. The officers - all lieutenant or above - will receive punishments ranging from an oral reprimand to the far more serious written letter of censure that is considered a career-ender.

Hasan is charged with 13 counts of premeditated murder and 32 counts of attempted premeditated murder in the November 2009 shooting spree on the Texas military post.

A Pentagon review last year found that Hasan's supervisors at Walter Reed Army Medical Center where he worked expressed serious concerns about his questionable behavior and poor judgment but failed to heed their own warnings. It said the Army psychiatrist's supervisors continued to give him positive performance evaluations that kept him moving up through the ranks despite worries about his strident views on Islam and worries about his competence.

http://hosted.ap.org/dynamic/stories...TAM&SECTION=US

[AdamG]

There were indications Wednesday morning that Maj. Nidal Hasan’s lawyer could withdraw from his position as lead defense counsel for the man accused of murdering 13 people on Ft. Hood at a pending arraignment hearing.

http://www.kwtx.com/news/headlines/1...8.html?ref=618

[jmm99]

In a fractured version of the Dirty Dozen script, the military judge sought to emulate Robert Ryan's character.

AP: Court ousts judge, shaving order in Fort Hood case (4 Dec 2012):

Hasan appealed after Gross ordered that he must be clean-shaven or be forcibly shaved before his military trial, which had been set to begin three months ago. It has been on hold pending the appeals.

An Army appeals court upheld the shaving requirement in October. But Monday, the U.S. Court of Appeals for the Armed Forces said the command, not the judge, is responsible for enforcing grooming standards.

Gross had repeatedly said Hasan's beard was a disruption to the court proceedings, but the military appeals court ruled that there was insufficient evidence to show that was true.

Gross found Hasan in contempt of court at six previous pretrial hearings because he was not clean-shaven, then sent him to a nearby trailer to watch the proceedings on a closed-circuit television. The appeals court's ruling also vacated the contempt of court convictions.

If the defendant wants to appear as a combatant in "God's Army", so what. The evidence needed to convict appears to be more than adequate.

Why do some judges allow themselves to be diverted by collateral issues ? The need to assert their authority, I'd posit - but to what end when justice is delayed ?

Regards

Mike

[Polarbear1605]

Originally Posted by jmm99

But Monday, the U.S. Court of Appeals for the Armed Forces said the command, not the judge, is responsible for enforcing grooming standards.

I have to agree with the court on that one...that is a command responsibility and in this case it means the convening authority is not doing their job. The defendent should be ordered to shave and if not, a charge added to the court martial for failure to obey an order from his commanding officer. This is another example of a commander deferring his command responsibility (lack of leadership) to the lawyers.

[jmm99]

I agree with your technical legal reasoning:

The defendent should be ordered to shave and if not, a charge added to the court martial for failure to obey an order from his commanding officer.

and also that, when a commander defers what should be his or her decisions to his or her lawyers, IMO: the lawyers have a fool for a client.

But, you wouldn't seriously prefer a charge for failure to obey a shaving order if you were his CO, would you ?

I mean, the guy is faced with a baker's dozen of death penalty charges. An added charge for failure to obey an order would be meaningless to what happens to him on the capital charges - and would itself be a diversion.

Ironically, this SOB could have avoided the whole shooting spree by simply refusing the order to deploy to a Muslim country (his initial stated reasoning against the deployment order). He then would have been prosecuted for failure to obey an order, where the sentencing guidelines would have been relatively generous.

No, instead he decided to be a jihadist, etc - for reasons that had to go well beyond his initial stated reasoning.

Regards

Mike

[Polarbear1605]

Agree with everything you say...but I can still complain...right?
First and foremost they need to be talking to one another and it appears they are not. In this case, the judge initiated the issue with the “forced shaving” ultimatum setting off a long delay for the appeal process. Second, if the commanding officer does not have the authority to “force shave” than neither does the military judge. There should have been an immediate after conversation (before would have been better) initiated by the commander/CA with the judge...Subj: WTF!, Over. And OH!..BTW…let me get ahead of the appeal court…your fired, judge.

If I were the commander/CA, I would be very upset about the appeal delay. This multi-murder happened, what, three years ago? Shaving, IMHO, is clearly a command issue getting back to “good order and discipline” command authority. If, I were commander/CA, and I wanted to avoid the appeal delay, I would have either told the judge …to not worry about the beard or I would appear at the brig with both sets of lawyers (defense and prosecution) order this guy to shave and when he refused add a charge. The add the charge part is in case he decided to shave before he appeared at the court martial. Not shaving is not going to help this guy before a sitting court of his peers.
The next reason these two need to be talking is the whole plea bargaining thing that may or may not happen. I cannot recall a plea bargaining paragraph in the UCMJ or the MCM…in my mind that clearly makes plea bargaining a command responsibility.

Another issue is that any finding by a court martial is essentially a recommendation because the commander/CA can accept, reject or modify.

Let’s talk about another case where the CA didn’t do their command job. Yep! Haditha…you knew I had to go there. One of the defendants in the Haditha case was a LT, intell type. The Lt was attached from 2MARDIV (Camp Lejuene) to the 1MARDIV Bn while both were in Iraq. Consequently, the court martial was held by 1MARDIV CA at Camp Pendleton. The LT was basically charge with obstruction of justice because he ordered his E-5 intell chief to destroy a set of photos of the Iraqi dead. He gave this order in accordance with standing orders that no pics of Iraqi dead were authorized and subsequently, found not guilty.

At one point in the pretrial proceedings, the Lt was actually discharged from the Maine Corps by his battalion commander back in Camp Lejeune. The prosecutor immediately added a charge to the Lt’s court martial for illegally discharging himself from the Marines. At the court martial, the defense attorney called the Lt’s 2MARDIV battalion commander and asked him why he discharged the LT. Answer: Because I am required by law to discharge him at the end of his contract. I can, however, place him on legal hold at the request of the CA. The prosecutor never requested or sent a legal hold letter to 2MARDIV. The prosecutor was charging the LT for his mistake. If I were the CA, I would have taken a considerable amount of both the prosecutor’s and judge’s time immediately after the charges were written up.

Commanders are turning their responsibilities over to the lawyers turning many of these show trials into clown schools.

[jmm99]

of Tony Waller (of our own) and Daniel Greysolon, sieur du Lhut (of the French Colonial Marines, in the late 1600s in my own UP of Michigan). The latter, in truth (my opinion thereof), did a better job of it than did Waller in a very similar situation. Perhaps, because du Lhut was not burdened with lawyers at all.

In neither case did the "separation of the convening authority and the court-martial" exist - and the commander was solely responsible for whatever decision was reached (even if, as in du Lhut's case, he elected to bring the prosecution before separate military and civilian panels). Brief note:

The last of these nations [JMM: Chippewa, Ojibwe] was especially difficult to manage as was demonstrated in 1684 when four of its warriors murdered two French traders. When one of the culprits appeared at the Jesuit mission of Sault Ste Marie the staff of 12 on duty there did not dare to arrest him, fearing the reprisals of his tribe. Dulhut, as soon as he learned of the incident, hurried to the mission, rounded up the suspects, including the chief Achinaga and his two sons, and put them on trial. Achinaga was acquitted and his younger son pardoned, but the two others who had been found guilty were executed before 400 Indians.

However, we don't live in 1902 or 1684 - even if some of us wouldn't mind returning to some aspects of those eras.

So, in the event(s) today, you as a smart bear (and convening authority) would consult all of the pitfalls of "Undue Command Influence" - attached as pdf - and wouldn't contact judge, counsel or anyone else involved in courts-martial in your command sphere.

THE 10 COMMANDMENTS OF UNLAWFUL COMMAND INFLUENCE

COMMANDMENT 1: THE COMMANDER MAY NOT ORDER A SUBORDINATE TO DISPOSE OF A CASE IN A CERTAIN WAY.

COMMANDMENT 2: THE COMMANDER MUST NOT HAVE AN INFLEXIBLE POLICY ON DISPOSITION OR PUNISHMENT.

COMMANDMENT 3: THE COMMANDER, IF ACCUSER, MAY NOT REFER THE CASE.

COMMANDMENT 4: THE COMMANDER MAY NEITHER SELECT NOR REMOVE COURT MEMBERS IN ORDER TO OBTAIN A PARTICULAR RESULT IN A PARTICULAR TRIAL.

COMMANDMENT 5: NO OUTSIDE PRESSURES MAY BE PLACED ON THE JUDGE OR COURT MEMBERS TO ARRIVE AT A PARTICULAR DECISION.

COMMANDMENT 6: WITNESSES MAY NOT BE INTIMIDATED OR DISCOURAGED FROM TESTIFYING.

COMMANDMENT 7: THE COURT DECIDES PUNISHMENT. AN ACCUSED MAY NOT BE PUNISHED BEFORE TRIAL.

COMMANDMENT 8: COMMANDERS MUST ENSURE THAT SUBORDINATES AND STAFF DO NOT “COMMIT” COMMAND INFLUENCE” ON THEIR BEHALF.

COMMANDMENT 9: THE COMMANDER MUST NOT HAVE AN INFLEXIBLE ATTITUDE TOWARDS CLEMENCY.

COMMANDMENT 10: IF A MISTAKE IS MADE, RAISE THE ISSUE IMMEDIATELY.

BTW: What was your last post - a test of my ability to do basic seamanship on UCI, or what ?



Regards

Mike

[jmm99]

From CSM, Why military judge has hands full with Nidal Hasan court-martial (by Patrik Jonsson, June 4, 2013):

After determining that Hasan is mentally and physically fit to defend himself, the military judge, Col. Tara Osborn, is now weighing the extent to which she’ll allow him to pursue his main defense: that he was justified in killing US soldiers about to deploy to Afghanistan to prevent the imminent deaths of Taliban soldiers.

I'd like to see more on this defense - It looks to be some form of RCM 916 justification.

Regards

Mike

[carl]

Mike:

If he did that would he be admitting treason?

[jmm99]

I'd say that (admitting treason) would be a definite drawback to the defense.

But, that being said, and all kidding aside, the guy knows he won't "get off" and probably will get a death sentence anyway. So, why not go down in a blaze of Islamist glory - as a warrior for global jihad ?

In essence, that is what KSM and his compatriots expressly stated in 2009 (my 2009 post, KSM's Islamic Response; and their manifesto, “The Islamic Response to the Government’s Nine Accusations”); they sum their argument as follows:

With regards to these nine accusations that you are putting us on trial for; to us, they are not accusations. To us they are badges of honor, which we carry with pride. Many thanks to God, for his kind gesture, and choosing us to perform the act of Jihad for his cause and to defend Islam and Muslims. Therefore, killing you and fighting you, destroying you and terrorizing you, responding back to your attacks, are all considered to be great legitimate duty in our religion. These actions are our offerings to God. In addition, it is the imposed reality on Muslims in Palestine, Lebanon, Afghanistan, Iraq, in the land of the two holy sites [Mecca and Medina, Saudi Arabia], and in the rest of the world, where Muslims are suffering from your brutality, terrorism, killing of the innocent, and occupying their lands and their holy sites. Nevertheless, it would have been the greatest religious duty to fight you over your infidelity. However, today, we fight you over defending Muslims, their land, their holy sites,and their religion as a whole.

The specifics of their argument prove that they consider themselves to be lawful combatants under the only law that counts to them - the Koran. Hague-Geneva are not material to them because those are man-made laws. National citizenship is also immaterial to them because only religious citizenship counts. Zawahiri, UBL and Maj. Hasan's mentor al-Awlaki all made these points very clearly.

So, it is scarcely surprising that Maj. Hasan is trying to follow their playbook.

Regards

Mike