Flawed court-martial pretrial system

Maj. Nidal Malik Hasan’s defense attorney skirmished with Army commanders Wednesday over the timing of a sanity examination for the Fort Hood gunman, saying that his client is still too medically impaired to participate.

So begins a piece in the Dallas News. What’s the flaw. There is no judge that attorney Galligan can go to or appeal to.

“This is getting dirty,” lawyer John Galligan said of the Army. “These guys have made it clear that they’re going for blood.” The upshot, he said, is that Hasan’s chain of command and prosecutors are deciding the tempo of the proceedings and are making decisions without the oversight of a neutral legal authority.

While I’m not sure this is the correct sentiment or words to use, his point is a valid one. Why hasten the R.C.M. 706 (sanity board) if there is a danger the Major Nidal Malik Hasan is not medically fit to undergo testing and evaluation.

“They’re not going to get a valid 706 board if he’s in that kind of condition,” noted Zimmermann, co-chair of the military law section of the National Association of Criminal Defense Lawyers. “He won’t be able to take any standardized tests. He won’t be able to engage in a forensic interview. How are they going to make a determination?”

One of the recommendations of Cox Commission II that is well supported by various groups would allow for a standing court—martial, instead of the ad hoc appointment of the military judge upon convening of a court-martial. Clearly the process at Fort Hood will expose one of the fundamental flaws in the military justice system. The convening authority (to use a baseball analogy) gets to pick and choose the team, manager, batters, and bowlers of the opposing side. By the time a military judge is involved in the case many issues will have happened and it may be impossible to put the genie back in the bottle.