The general standard of review for a government certificate for review under the Uniform Code of Military Justice (UCMJ) is governed by Article 67(a)(2), UCMJ (10 U.S.C. § 867(a)(2)), which grants the U.S. Court of Appeals for the Armed Forces (CAAF) jurisdiction to review decisions of the service courts of criminal appeals (CCAs) upon certification by the Judge Advocate General (JAG) of the respective service.

Standard of Review for Government-Certified Issues

1. De Novo Review for Legal Issues:
   • CAAF generally applies a de novo standard of review when considering legal issues presented under a certificate for review. This applies to questions of statutory interpretation, constitutional law, and other legal determinations made by the lower courts.
   • See United States v. Wilkins, 71 M.J. 410 (C.A.A.F. 2012) (“Questions of law are reviewed de novo.”).
2. Deference to Factual Findings:
   • When the case involves factual determinations by the service courts of criminal appeals (CCAs), CAAF generally applies a clearly erroneous standard. The court gives deference to the lower courts’ factual findings unless they are unsupported by the record or clearly erroneous.
   • See United States v. Burris, 78 M.J. 280 (C.A.A.F. 2019) (“We will not overturn the factual determinations of the lower court unless they are clearly erroneous or unsupported by the record.”).
3. Abuse of Discretion for Procedural and Evidentiary Rulings:
   • When reviewing matters involving procedural decisions, evidentiary rulings, or discretionary rulings by the trial court (such as rulings on expert witnesses, sentencing decisions, or admission of evidence), CAAF applies an abuse of discretion standard.
   • See United States v. Feliciano, 76 M.J. 237 (C.A.A.F. 2017) (holding that evidentiary rulings are reviewed for abuse of discretion).

Limitations on CAAF’s Review Authority

• CAAF’s review is limited to the specific issues certified by the JAG unless the accused also files a petition for review on separate issues under Article 67(a)(3), UCMJ.
• If the CCA’s decision is based on independent grounds not related to the certified issue, CAAF may decline to rule on the issue.
• CAAF does not generally reweigh evidence or substitute its judgment on witness credibility unless there is a legal deficiency.

Precedents from CAAF Regarding Government Certificates of Review

• United States v. Upham, 66 M.J. 83 (C.A.A.F. 2008): CAAF’s authority under a government certificate of review is limited to the specific issues certified by the JAG.
• United States v. Adams, 63 M.J. 223 (C.A.A.F. 2006): The lower court’s ruling will generally be upheld unless it is “arbitrary, capricious, or an abuse of discretion.”
• United States v. Jones, 78 M.J. 37 (C.A.A.F. 2018): When a case presents a mixed question of law and fact, the legal conclusions are reviewed de novo, while the factual findings are reviewed for clear error.

Conclusion

When CAAF reviews a case under a government certificate of review, it generally applies:

• De novo review for pure legal questions.
• Clearly erroneous standard for factual determinations.
• Abuse of discretion standard for procedural and evidentiary matters.

An important issue in such “appeals” is whether the prosecution is asking CAAF to find new facts or reinterpret the facts–its complex, and something we as military defense lawyers are familiar with.

A key appellate case supporting the proposition that the Court of Appeals for the Armed Forces (CAAF) does not generally reweigh evidence or substitute its judgment on witness credibility unless there is a legal deficiency is United States v. Wheeler, 76 M.J. 564 (C.A.A.F. 2017).

Rule from Wheeler (2017)

In United States v. Wheeler, CAAF reaffirmed that it does not engage in reweighing evidence or making independent determinations of witness credibility, stating:

“It is the duty of the factfinder, not this Court, to determine the credibility of witnesses and weigh the evidence presented at trial. We will not disturb such findings unless there is a clear legal error or the findings are unsupported by the record.”

— United States v. Wheeler, 76 M.J. 564, 568 (C.A.A.F. 2017).

Other Supporting Cases

• United States v. Rosario, 76 M.J. 114 (C.A.A.F. 2017):
  • Held that CAAF does not reassess credibility determinations unless there is a legal deficiency, noting that the fact-finder’s determinations are given great deference unless unsupported by the record.
• United States v. Beatty, 64 M.J. 456 (C.A.A.F. 2007):
  • Stated that appellate courts do not reweigh evidence but rather assess whether the court below had a basis in law and fact for its conclusions.
• United States v. Satterly, 74 M.J. 544 (C.A.A.F. 2015):
  • Affirmed that CAAF does not second-guess factual findings or witness credibility assessments unless they are “clearly erroneous” or based on incorrect legal standards.

Conclusion

CAAF follows the principle that credibility determinations and factual findings rest with the factfinder (trial court or CCA), and appellate review is limited to assessing whether there was a legal deficiency, such as insufficiency of evidence, misapplication of law, or due process violation. The case of United States v. Wheeler, along with Rosario and Beatty, directly supports this appellate principle.

A most interesting questions is what can CAAF review and how may it do that when a CCA has dismissed a charge because it is not factually sufficient to support a finding of guilty–stated another way, the appeals court is saying the person should not have been found guilty. The Government likes to certify these cases because it doesn’t like the result.

When the certified issue relates to a Court of Criminal Appeals (CCA) finding of factual insufficiency, the U.S. Court of Appeals for the Armed Forces (CAAF) applies a deferential standard of review and does not reassess the factual sufficiency of the case de novo. Instead, its review is limited to determining whether the CCA applied the correct legal standard and whether its decision is clearly erroneous or unsupported by the record.

Standard of Review for a CCA’s Factual Insufficiency Determination

Under Article 66(d), UCMJ (10 U.S.C. § 866(d)), CCAs are required to conduct a factual sufficiency review by independently weighing the evidence and determining whether the conviction is correct beyond a reasonable doubt. If a CCA finds the evidence factually insufficient and sets aside a conviction, CAAF’s review of that decision is highly deferential.

• United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002):
  • CAAF does not have the authority to review a CCA’s factual sufficiency determination de novo. Instead, it reviews whether the CCA applied the correct legal standard and whether its factual determination is clearly erroneous.
  • “Once the Court of Criminal Appeals determines that the evidence is factually insufficient, we are bound by that determination absent clear error or application of an erroneous legal standard.”
• United States v. Smith, 76 M.J. 524 (C.A.A.F. 2017):
  • Reaffirmed that CAAF does not reweigh evidence or reassess credibility when reviewing a CCA’s factual sufficiency determination.
  • “The Courts of Criminal Appeals have unique fact-finding powers under Article 66, UCMJ, which we do not disturb unless their decision is clearly erroneous or based on a misapplication of the law.”
• United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010):
  • Held that CAAF’s review of a CCA’s factual sufficiency determination is limited to ensuring that the CCA applied the correct standard under Article 66, UCMJ, and does not substitute its own judgment for that of the CCA.

Key Points About CAAF’s Standard of Review in Certified Cases Involving Factual Insufficiency

1. Highly Deferential Standard:
   • CAAF does not reassess factual sufficiency but only reviews whether the CCA applied the correct legal standard.
2. Clearly Erroneous Review:
   • CAAF will only reverse a CCA’s finding of factual insufficiency if it is clearly erroneous or unsupported by the record (Washington, Smith).
3. Legal Standard Review:
   • If a CCA misapplies Article 66(d), UCMJ, or fails to properly conduct a factual sufficiency review, CAAF can intervene (Nerad).

Conclusion

If a government certificate for review challenges a CCA’s factual insufficiency determination, CAAF does not reweigh the evidence but only ensures the CCA applied the correct legal standard and that its decision was not clearly erroneous. This principle has been upheld in Washington, Smith, and Nerad.

Would you like a case-specific analysis or further discussion on a particular aspect–contact the military defense lawyers at Cave & Freeburg, LLP, and we’ll see if we can help.

In 2013, Warren Wells was a Lieutenant Colonel and a Regional Defense Counsel supervising the Senior Defender Counsel at several Army bases and their subordinate military defense counsel. He sent an email to his Senior Defense Counsel on various defense matters that included a paragraph commenting on the pressure put on the Army by Congress and the media to send sexual assault cases to trial and then stated that they, as defense counsel were the last line of defense for the innocent. Ten years later, when Ms. Wormuth read the email, she found this sentiment so outrageous that she fired BG Wells within hours!

Today, every military defense counsel knows (especially in the Army) that something they do or say in your defense can be held against them in the years to come when they are up for promotion or in a different position as a JAG. The military branches try to have independent defense counsel while they are in defense counsel positions, but as the BG Wells story illustrates: nothing protects them when they are no longer in a defense counsel position. Your military defense counsel will hopefully do their best to represent you anyway, but he or she is not conflict-free, no matter how hard they try.

Since the public firing, the Secretary of Army has not issued a statement, directed toward defense counsel, that she respects their role in the military justice process and that they should uphold the professional oaths to zealously represent the client within the bounds of the law, the rules of ethics, and reason. Some of us remember when then-President Obama publicly suggested anyone accused of a sex offense should be discharged. This was erroneous. However, in that case, the Secretary of Defense quickly published a “cleansing” statement explaining the correct legal obligations.

Politico reported that

Obama said at a press conference in early May that came just as the Pentagon released a report detailing rising incidences of sexual assaults in 2012. “So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”

This statement led to two accused’s having a military judge in their case hold that, if found guilty, the jury could not adjudge a punitive discharge.

Earlier this year, Marine Corps defense counsel were placed in an ethical quandary because of statements made to a defense counsel then representing a client in a difficult case. Those statements became a matter of significant litigation. United States v. Gilmet will tell you all you need to know about how the statements may have put Marine Corps defense counsel in a compromised position and having a potential conflict of interest between their own career and the interests of their client. Incidentally, the case against Gilmet was dismissed because of the statements made by the senior Marine judge advocate to defense counsel.

As civilian defense counsel, we at Cave & Freeburg, LLP, are not concerned about our zealous, aggressive defense of you coming back to hurt our careers. We report to no one other than the law.

United States v. Messias. The court set-aside a finding of guilty to because of an inadequate providence inquiry. No sentence relief granted.

While the providence inquiry establishes facts sufficient to demonstrate that the appellant drove on base and that he believed the driving to be wrongful, there are no facts developed which establish either the invalidity of the appellant’s license, if any, or in the alternative, his failure to have a valid license in his possession. We cannot infer either eventuality from this record. We are left with a substantial basis in fact to question this plea and conclude the military judge abused his discretion in accepting this plea on these facts. We note that the appellant remains convicted of a nearly four-month period of unauthorized absence from a combat arms unit and possession of a substantial quantity of marijuana aboard a Marine Corps base. We are satisfied beyond any reasonable doubt that the sentencing landscape, now devoid of the motor vehicle operator’s license violation, has not substantially changed.

United States v. Mendoza. Here the issue was not raised by appellate counsel. But the court found that there was insufficient facts within the providence inquiry as to all of the victims. No sentence relief.

A military judge sitting as a general court-martial convicted the appellant, pursuant to his pleas, of attempted sale of military property, sexual harassment, assault consummated by battery, and sale of military property, in violation of Articles 80, 92, 108, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 892, 908, and 920. The appellant was sentenced to confinement for nine months, forfeiture of all pay and allowances, to be fined $500.00, reduction to pay grade E-1, and a bad-conduct discharge.

These cases above would indicate the trial counsel is not protecting the record. Judge Mc in his article about xxx pointed out how the trial counsel should be monitoring the elements and the evidence. The cases above are examples of how the trial counsel’s failure to protect the record might have cost the government a sentence reassessment and reduction. When the military judge asks, ‘does either side request additional enquiry,’ this is when trial counsel should be saying, ‘yes,’ with some proposed questions.

United States v. Magincalda, is a post-trial speedy review case. 857 days from date of trial to CA action. No relief.

A general court-martial with enlisted representation convicted the appellant, contrary to his pleas, of conspiracy to commit larceny, housebreaking, kidnapping, false official statements, and murder; wrongful appropriation; and housebreaking, in violation of Articles 81, 121, and 130, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 921, and 930. The members sentenced the appellant to 448 days of confinement, the period of pretrial confinement, and reduction to pay grade E-l. The convening authority (CA) approved the sentence as adjudged and ordered it executed.

United States v. Sperlik. A urinalysis case. The court specified an sentencing instruction issue not raised by appellate counsel. The court found no error in the errors raised, but found error and reversed on a failure to give correct instructions to the members.

The record demonstrates that the policy of zero tolerance, and its seemingly reflexive relationship to a punitive discharge in the minds of the members, carried into deliberations. Specific, clearly curative instructions were required in order to dispel the members’ biases or improper consideration of that policy. None were given by the military judge.

Interestingly there was quite a bit of discussion and some instructions on collateral effects of not adjudging a punitive discharge.

The civilian defense counsel noted the need to dispel the members’ bias to the point of asking for a mistrial during the Article 39(a) session and alternatively for an instruction explaining zero tolerance. But rather than ensuring the members’ biases were eradicated, the military judge only provided a minimal instruction — that he could not instruct on zero tolerance and only reminded them that it should not be considered. The military judge further abused his discretion, in light of the specific questions presented by the members, in failing to fully address their concerns about administrative processing.

United States v. Fields,

The appellant assigns four errors: 1) the evidence was legally and factually insufficient to support the findings of guilt to Charge II and all specifications thereunder; 2) the indecent language offense is a lesser included offense of the attempted indecent language to a child offense and should be dismissed as multiplicious; 3) the appellant’s masturbation to an unknown party via webcam over the internet was factually insufficient to constitute indecent public exposure; and, 4) the military judge improperly denied the appellant’s motion to dismiss Charge II and all specifications thereunder as an unconstitutional invasion of his privacy. We have carefully considered the parties’ pleadings and the record of trial. We find merit in the appellant’s second assigned error and set aside the guilty finding for Specification 3 of Charge II (indecent communications) and dismiss the specification. Additionally, though not assigned as error, we find that the specifications alleging indecent exposure (Charge II, Specification 1) and indecent acts (Charge II, Specification 2) constitute an unreasonable multiplication of charges; accordingly, we set aside the guilty finding for Specification 1 of Charge II and dismiss the specification. We are satisfied that the remaining convictions and the sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant remains.

A Fort Wainwright soldier is under investigation for allegedly posting a video on his Facebook site showing Iraqi children being taunted.

Navy Times reports:

A 400-cell military brig is being constructed near Naval Station Norfolk to consolidate Navy and Marine prisons closing in Virginia and North Carolina. . . intended for Navy and Marine defendants who are either awaiting trial or serving sentences of seven years or less.

Marine Corps Times reports:

A Texas man with no military experience managed to trick the Army into letting him enter a reserve unit as a noncommissioned officer earlier this year, putting an untrained soldier in a leadership position in a time of war, an Associated Press investigation has found. The revelation comes just months after the Army drew criticism for failing to flag the suspicious activities of the Army psychiatrist now charged with killing 13 and wounding dozens of others at Fort Hood.

LA Times reports that:

A fourth Marine at Camp Pendleton has been sentenced for mishandling classified documents involving investigations into possible terrorist groups in Southern California, the Marine Corps announced Thursday. Gunnery Sgt. L. Eric Froboese was ordered reduced in rank to staff sergeant and sentenced to 30 days in the brig. The brig sentence will be delayed while Lt. Gen. Keith J. Stalder reviews the decision of a court-martial. Under a plea bargain, Froboese will not be docked pay.

Washington Post reports that:

The U.S. military has begun a criminal investigation of allegations that a “small number” of American soldiers killed as many as three Afghan civilians.

As does CBS news.

Stars & Stripes reports:

A U.S. Army Europe brigade sergeant major who’d admitted sexual contact with a low-ranking soldier in his command was acquitted Thursday of sexual assault, fraternization, maltreatment and adultery.

Boston.com reports that:

A Norwell woman wanted since January for deserting the Army was arrested Sunday night by Norwell police and is now at an Army facility in Kentucky, according to police and Army officials.

Navy Times reports that:

The captain of a destroyer that struck a buoy in the Persian Gulf in March was relieved of command Tuesday in Manama, Bahrain, after a non-judicial hearing found he was “derelict in the performance of his duties.”

This case involves the common problem of discovery of a victims mental health records. There are two troubling aspects to this case: the trial counsel never made any effort to determine whether or not information responsive to a specific discovery request was available, and when the prosecution has access – as they frequently do – how can it not be a violation of Article 46, UCMJ, for them to fail to turn over the information.

On 9 May 2007, trial counsel responded to the defense discovery request, stating in relevant part “[t]he Government is not aware of the existence of any such documentation regarding the records of the victims, Mrs. [JLC] and Mrs. [SCR].” In fact, trial counsel had not asked Mrs. SCR whether she had attended mental health counseling before responding to the defense discovery request.

Slip op. at 5 (emphasis added). This is so common – have a case right now where the prosecution admitted they’d not asked the NCIS investigator if there was anything in response to a very specific request.

Our superior court has previously noted that R.C.M. 701, “which sets forth specific requirements with respect to evidence favorable to the defense . . . implements the Supreme Court’s decision in Brady v. Maryland . . .” United States v. Williams, 50 M.J. 436, 440 (C.A.A.F. 1999) (internal quotations and emphasis omitted). We view our superior court’s guidance as requiring us to analyze nondisclosure issues under the statutory and executive order standards set forth by R.C.M. 701 and Article 46, UCMJ, which are broader than the Brady constitutional standard. See Santos, 59 M.J. at 321; United States v. Roberts, 59 M.J. 323, 326-27 (C.A.A.F. 2004). As a result, the government bears the higher burden of proving a nondisclosure in response to a specific request is harmless beyond a reasonable doubt. Webb, 66 M.J. 92; Roberts, 59 M.J. at 327. Issues of nondisclosure of evidence are reviewed de novo. See United States v. Eshalomi, 23 M.J. 12, 21-22 (C.M.A. 1986). The military justice system provides for broader discovery than due process and Brady require. See Santos, 59 M.J. at 321; United States v. Adens, 56 M.J. 724, 731 (Army Ct. Crim. App. 2002). Article 46, UCMJ, mandates the trial counsel and defense counsel “shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.” The President has implemented Article 46, UCMJ in R.C.M. 701, which requires the government, upon defense request, to allow inspection of any tangible objects, such as papers and documents, that “are within the possession, custody, or control of military authorities, and which are material to the preparation of the defense.” R.C.M. 701(a)(2)(A). See also R.C.M. 703(a); R.C.M. 703(f)(1). In particular, the government must, upon request, permit the defense to inspect “[a]ny . . . reports of physical or mental examinations, . . . which are within the possession, custody, or control of military authorities . . . and which are material to the preparation of the defense.” R.C.M. 701(a)(2)(B). See also United States v. Stewart, 62 M.J. 668, 671 (A.F. Ct. Crim. App. 2006). Although not a common occurrence, our court has previously recognized that an Article 46, UCMJ violation may occur without a coexistent violation of constitutional due process. Adens, 56 M.J. at 732 (government’s nondisclosure of inculpatory physical evidence violated a substantial right of the accused irrespective of a due process violation). We find the government’s nondisclosure violated Article 46, UCMJ, and R.C.M. 701, even though it did not violate Brady.

Ultimately the error was harmless beyond reasonable doubt.

[Update] CAAFLog points out that the court appeared to “spank” the prosecutors. Rightly so. It is not uncommon for prosecutors to do as this one did and blow-off the defense request by not making any effort to look for the requested information. The court describes such conduct as “dereliction.” Trigueros, Slip op. at 10-11.

As to the equal access. My point is that I often show up at an Article 39(a), UCMJ, session to litigate discovery, including mental health records, and the trial counsel says they have them and have looked at them. And they want to offer them to the MJ for in-camera review. At that point, why? If Article 46, UCMJ, means anything, why is the prosecution not required to turn them over? At least two Army judges I’m aware of, unfortunately retired now, have taken the position that if the prosecution has it the defense gets it. Whether or not the information is admissible is a different question. In some instances the disclosure has lead to admissible impeachment evidence. So much for the prosecution complying with Brady, Kyles, and Giglio.

The issue in Harman was factual sufficiency and the conviction and sentence was affirmed.

Appellant admitted to investigators that she took a new detainee, who had been placed on a box with a hood over his head, affixed his fingers with wires, and told him he would be electrocuted if he fell off the box. Appellant then photographed the victim who stood on the box for approximately an hour. Appellant admitted it was her idea to attach these wires, though military intelligence officials had not asked her or her colleagues to do so. Appellant thought this was permissible because “[w]e were not hurting him. It was not anything that bad.”

The appellant also admitted taking photographs and taking other actions over a period of time.

Smith involved allegations of error that the military judge failed to give proper instructions on a defense of obedience to orders. The case is valuable for the question of a judge’s sua sponte duty to instruct and the amount of evidence necessary to require an instruction.

“Obedience to lawful orders” is an affirmative defense on which the military judge has a sua sponte duty to instruct if the defense is reasonably raised. See United States v. Davis, 53 M.J. 202, 205 (C.A.A.F. 2000); R.C.M. 916(d); R.C.M. 920(e)(3). “The test whether an affirmative defense is reasonably raised is whether the record contains some evidence to which the court members may attach credit if they so desire.” Davis, 53 M.J. at 205. A lawful order instruction would have been required only if the order given had been lawful or could reasonably have been believed to be lawful. See United States v. Calley, 22 C.M.A. 534, 544, 48 C.M.R. 19, 29 (1973).

Both cases have a good discussion of maltreatment and the standard of proof and type of evidence necessary for conviction. Smith holds that a detainee, while not himself subject to the UCMJ in traditional terms as a civilian, is “subject to the orders” of the accused. CAAF cited to the various Geneva Conventions to support this proposition.

Judge Efron notes an important point for both sides at trial, but most importantly the defense.

Appellant raises claims now that he did not make at trial. The record contains no instructions proposed by the Appellant. Appellant did not object to the military judge’s instructions as given.

As I frequently say, many a good appellate issue is lost because the trial defense counsel did not make a record. There are times when strategy may require doing or not doing something at trial, for example an objection. Not objecting potentially waives the issue absent plain error. That’s fine and consistent with the principle that you want to win at trial and do not litigate for appeal. But when it comes to instructions, that’s an area for action and creativity.

Defense Secretary Robert M. Gates said today that he has forwarded recommendations to the Army for disciplinary action against supervisors of the accused Ft. Hood shooter.

The LA Times reports.

The report recommends clarifying for unit commanders their responsibility in identifying people who could pose a threat. Unit commanders, according to the report, must become attuned to indicators of behavioral problems or the potential for violence or radicalization.

In this context, people may well be following the case of a Soldier in pretrial confinement accused of threatening his leaders in a rap type song on his website. See:

Fragging and rapping

Rapping rap II

Rapping rap

Vicki Behenna has 10 minutes to plead her son’s case. Where does she begin? In the last few months, she has developed hours of arguments about why U.S. Army 1st Lt. Michael Behenna was wrongly convicted of killing a suspected terrorist in Iraq in 2008, why his 20-year sentence for unpremeditated murder was too severe compared to other sentences for the same offense and why the military rules for detaining suspected terrorists make no sense in a combat zone. She will have to condense all that into a matter of minutes when she appears Thursday before the Army Clemency and Parole Board in Arlington, Va.

Reports NewsOK.

Having done hearings at the Army Clemency & Parole Board I am not sure that the Board will hold her exactly to the ten minutes. True, such presentations need to be clear, concise, and tailored. But in my experience the board members, including Mr. Vick from time to time will have pertinent questions. And there will be some leeway to make sure a point is made and understood.

Here is a link to Band of Mothers referenced in the piece. And here is the link to the Behenna website.

In his 1994 book The Court-Martial of Lieutenant Henry Flipper, Robinson, an historian of the frontier army, held to the view that Flipper?s 1881 conviction for embezzlement was rooted in racism. Reviewing materials not available at the time he did the earlier book, in the present work Robinson concludes that, while not denying the existence of racism in the army, Flipper had indeed been careless with funds, albeit probably intentionally. Such financial misconduct apparently was not uncommon in the Old Army, as very young officers were often given responsibility for large sums with little or not training. A number of other officers in the period were also found short in their accounts. The penalties handed out to most of these officers, however, were not usually immediate expulsion from the service, which is where the Flipper case differs from theirs.

Strategy page.

Here are some links relating to secondary traumatization.

Zimmering, Munroe, & Gulliver, Secondary Traumatization in Mental Health Care Providers, 20 Psych. Times (Apr. 2003).

KevinMD.com, Did Nadal Malik Hasan suffer from compassion fatigue or vicarious traumatization? 6 November 2009.

Fort Hood shooting: the death penalty would make Nidal Malik Hasan an Islamic martyr

The implication of the article is that commanders should make a political decision that seeking the death penalty is not a good idea. Equally I suppose an argument could be made that the defense should make the geo-politics an issue because anything that might be “mitigating” must be considered when seeking to impose the death penalty. I’m not an advocate of the death penalty for various reasons; a political decision is not one of the reasons I’m against the death penalty though.

The issue is whether or not Major Hasan’s conduct qualifies him for and warrants a sentence to death. The arguments should be addressed to the legality of the military death penalty, the legality of R.C.M. 1004 and the process by which a members panel adjudges a death sentence, and whether or not the conduct proved warrants death.

R.C.M. 1004(a)(3) does give the accused “broad latitude to present evidence in extenuation and mitigation.” I’m not convinced the political fallout is included within that language. It seems to me that there are sufficient aggravating facts to consider and the members panel will have to decide if such issues of mental health are “substantially outweighed by any aggravating circumstances.” R.C.M. 1004(a)(4)(C).

Perhaps the ongoing process of the Guantanamo detainees is an augur of how far the Fort Hood commander, initially, will consider politics. I suspect he’s more likely to consider Army family politics before else.