Major Hasan update pretrial confinement conditions.

Hasan is paralyzed from the chest down and bedridden in a military hospital in San Antonio, says Galligan. He says the U.S. Army command has imposed rules that allow for a closed-circuit television camera in Hasan’s room for Hasan’s and others’ safety; bar visits from anyone except Hasan’s family members and his lawyers and limit those visits to one hour (Galligan does not know if this time limit is per day or per visitor); require all visitors to provide picture identification; restrict all communications with Hasan to English; and require that an interpreter be present if another language is spoken.

Law.com reports.

I don’t have any legal quibble with restricting visitors to family members. That’s certainly the type of discretion and restriction you might see in pretrial confinement facilities, as well as post-trial situations. Visitation has to be a balance between allowing visits and concerns for security. As most regulations say:

The number of visitors allowed at one time may be limited to three individuals based on crowding. A valid photograph ID must be presented at each visit to gain entrance to the facility.

Non-arbitrary facility limitations. This seems especially important in light of the recent attempt of an “interloper” to get in to see Major Hasan, blogged here.

The Brig Officer in Charge or Brig Duty Officer reserves the right to disapprove anyone for visitation.

Brigs within the Navy Department have dress code restrictions as well.

• All visitors will wear clothing and footwear that are in good taste and in accordance with military requirements for appropriate civilian attire.
• No mini skirts.
• No short shorts.
• No muscle shirts/tank tops.
• No see-through garments.
• No revealing garments.
• No clothing with distasteful language or drug paraphernalia.
• No sweat suits/pt gear

(I’m using the Navy rules [SECNAVINST 1640.9C] for the moment, more on this later when I’ve had a chance to check against the Army rules for possible differences, etc.)

However, can we quibble with limitations on legal visits? My own experience is that most of the confinement facilities are decent about allowing legal visits. Some facilities are more restrictive than others. One facility may allow you to come at any hour, except during meals, count, or some other evolution. Some facilities restrict you to duty hours. Some facilities will only allow contact with the screen/window others will allow you into a private room (although the rooms are within view of the Control room).

Audio recording legal visits would be a different issue, but I’m not aware of that happening.

Major Hasan, according to his own lawyers, is very sick, and not really fit for anything at the moment. So, why would it not be medically reasonable to limit the time spent with a very sick patient.

At what point do medical and security concerns become an excuse for overly restrictive confinement? At what point do seemingly reasonable restrictions become impositions on the Sixth Amendment right to have counsel who can prepare?

Mr. Galligan is making a record, good for him. Article 10, 13, UCMJ, and case law does prohibit certain types of pretrial restraint practices. Mr. Galligan is making a record on which a military judge at court-martial may have to rule, and may even grant relief or make a mistake. As an appellate lawyer I’ve always been frustrated with trial defense counsel who don’t make a record.