Defense attorneys for Maj. Nidal Malik Hasan, a Fort Hood psychiatrist charged with killing 13 people and wounding 32 others in a mass shooting here last fall, won a four-month delay Tuesday in an evidentiary hearing that could lead to his court-martial.

Sitting in the same courtroom where he oversaw proceedings for two infamous Abu Ghraib defendants, Col. James Pohl ruled in favor of the defense, which said it had not received all the documents it needed – including a ballistic trajectory report now being done by the FBI in Quantico, Va. “We got what we wanted,” said retired Army Col. John P. Galligan, lead counsel for Hasan.

But even before the gavel comes down, two legal battles are underway to try to force the Army and the Department of Justice to turn over documents dealing with Hasan’s past, particularly his personnel files, his mental health records and other documents that might suggest the government should have known he was a dangerously troubled soldier. The Senate Homeland Security and Governmental Affairs Committee has taken the unusual step of issuing subpoenas demanding the records as part of its investigation into the shooting spree. What they want to know, said committee Chairman Joe Lieberman (I-Conn.), is “why was he not stopped before he took 13 American lives, and how can we prevent such a tragedy from happening again?” At the same time, Hasan’s defense attorney, John P. Galligan, a retired Army colonel from Belton, Texas, said he has been deprived of the records despite repeated requests. Without the material, he said, it will be very difficult to defend Hasan at the hearing.

R.C.M. 405(f)(10) seems to provide for Mr. Galligan being given what he’s been asking for.

in which he sought to have the court overturn the ruling of the military judge at his sentencing rehearing to the effect that Life Without Parole (LWOP) is not an authorized sentence in his case. Alternatively, the petitioner requested that this court direct the military judge to grant the petitioner’s motion allowing him to waive his right to clemency and parole following sentence, so that he can more easily reach a pretrial agreement with the convening authority.

Cannon fire will permeate the air over the PARC museum campus this weekend as forces from the Union and Confederate armies collide on the open fields. The Clinton County Historical Association will host the third-annual Plattsburgh Civil War Encampment, with two battles between the Blue and Gray scheduled for today and another slated for Sunday. Another new feature this year will be the court-martial of a Union soldier between today’s battles. Hewson said he did not know how that trial may turn out, but soldiers were often executed for betraying their colors during battle.

Speedy trial anticipated, ending with a flash in a pan.

And here’s a report from The Fort Scott Tribune:

The death of Private John Summers, Co. E, 2nd Kansas Volunteer Cavalry was the result of one of two public military executions in Fort Scott during the Civil War. Both of these executions were in May of 1863 and were very deliberately public in nature. Summer’s crime, for which he was convicted by a General Court Martial, was DESERTION! He didn’t desert from the Union army just once! He did it THREE times after which he was caught and brought to Fort Scott for his trial. How was this possible? Not only was Pvt. Summers a deserter he was also a “BOUNTY JUMPER!”

Note the timing:

Trial: 11 March 1863. CA action: 1 May 1863. Sentence carried out: 13 May 1863.

If she can’t have justice for her slain soldier husband, she’d at least like a Purple Heart. New York widow Barbara Allen is battling the National Guard for withholding the military honor from her husband, who was killed in 2005 while serving in Iraq. The two men were allegedly the victims of “fragging” — killed by a disgruntled soldier under their command. But the accused soldier, Staff Sgt. Alberto Martinez, 45, was found not guilty of both murders at a military trial in 2008. Allen’s family later found out that during the investigation, Martinez had offered to plead guilty to the charges in exchange for a lifetime prison sentence instead of the death penalty. Military prosecutors rejected his plea and proceeded to trial, but a jury did not convict him. Lt. Allen’s death isn’t considered the act of an enemy combatant by the military — but his wife disagrees.

Her claim about the PTAO is consistent with what I have heard from a potential witness involved in the case.

Here is a quick note from KWTX.com:

FORT HOOD (April 30, 2010)–Fort Hood authorities said Friday they have not reached a decision to seek the death penalty in the upcoming Article 32 for Army Maj. Nidal M. Hasan. “There has been no decision to pursue the death penalty in the case against Maj. Nidal Hasan,” Post officials said in a press release Friday.

Initially there are some terminology issues to resolve. There are two notice provisions when the prosecution seeks a death penalty.

1. Notice of a capital referral is first formally made on the charge sheet at the time of referral. R.C.M. 1004(b)(1)(A).

2. Notice of the aggravating factors which the prosecution asserts justify the death penalty are given: (1) in writing, (2) by the Trial Counsel (remember we are at the Article 32, UCMJ, stage, so there is no trial counsel on the case, just government representatives assigned IAW R.C.M. 405(d)(3)(A)), (3) before arraignment. However, the government drafted R.C.M’s also have a get out provision that:

Failure to provide timely notice under this subsection of any aggravating factors under subsection (c) of this rule shall not bar later notice and proof of such additional aggravating factors unless the accused demonstrates specific prejudice from such failure and that a continuance or a recess is not an adequate remedy.

The aggravating factors are found at R.C.M. 1001(b)(4) as well as 1004(c). Not all of those factors apply, but the following could: damage to national security (2)(3), endangering the life of one or more persons other than the victim(s) (4), and / or with intent to avoid hazardous duty (5). So far it appears the prosecution is focused on 1004(c) (4). R.C.M. 1001 addresses general aggravating evidence found in all cases and it is 1004 that addresses the additional aggravating facts to justify death.

So, I agree that legally the prosecution has not been referred capital. Thus the notice isn’t really a notice as contemplated by the R.C.M. However, it is my understanding that Army practice is now to produce for an Article 32, UCMJ, investigation information supporting a capital referral and asking the IO to make a recommendation. Such a practice makes sense, especially in borderline cases. Article 32, UCMJ, and RCM 405 provide for the IO making a recommendation as to disposition of the charges. Clearly a recommendation on a capital referral is within the IO’s ambit. If so, then it seems to me that the defense ought to have every opportunity to address those matters within the context of RCM 405. It is my understanding that putting the defense on early notice was a reason for the practice at the Article 32, UCMJ, hearing.

Here is the actual command press release courtesy of KWTX.com.

It’s true that the convening authority has not decided to make the formal referral. But I think it somewhat disingenuous to proceed as if this is not a capital case. By proceeding legalistically the prosecution can justify denying the defense the opportunity to prepare for and present mitigating information under RCM 405(f)(11)(12) at the Article 32, UCMJ, hearing. That’s how I interpret Mr. Galligan’s complaints. If the prosecution is proceeding deliberately to limit the defense opportunity to present mitigation at the Article 32, UCMJ, hearing, then perhaps Mr. Galligan’s perceptions of unfairness and gamesmanship could have a reasonable basis in his view. Mr. Galligan has several items on his blog:

Senators Lieberman and Collins still have not received all of the information that was outlined in the subpoenas earlier served upon the Department of Defense and Department of Justice. Nonetheless, the Senators received information that has yet to be provided to the Hasan Defense Team. Prosecutors have voiced objection to anything more than a one-week continuance in the Article 32 hearing which is now scheduled to commence on 1 June. They appear uncaring about that fact that the new member of the Defense Team is not expected to arrive at Fort Hood for several more months or the fact that basic discovery associated with the case (e.g. FBI reports and classified/restricted investigations) still have not been provided to the Defense counsel. Most disturbing, the Army continues to stonewall Defense efforts to get its requested mitigation specialist on board. In its most recent statement about this issue, the prosecutors have argued, “The Government notes that as the present case has not been referred to any level of court-martial, the defense is not presently entitled to a government funded mitigation specialist as a matter of right.” It is time for them to stop playing games. Dilatory actions like this is what gives military justice a bad rep – fundamental fairness and a balanced presentation of evidence apparently is of no concern to this crop of prosecutors.

Here’s a post at Huffington Post about ‘Wolf Blitzer’s Shame Campaign.’ Another media expose of those shameless defense counsel who represent an accused. The piece ends:

What I don’t understand is this: Why is Wolf Blitzer trying to steal Nancy Grace’s thunder? I thought howling about what monsters defense attorneys are was her schtick.

AP:

Stars & Stripes:

Army prosecutors have sent a notice that they plan to seek the death penalty against Maj. Nidal Malik Hasan, accused of the Fort Hood shootings, according to Hasan’s attorney, John Galligan. Galligan told The Associated Press on Wednesday that he received the notice outlining an aggravating factor — that more than one person was killed in the same incident. Military law experts say that’s the Army’s way of saying they plan to seek the death penalty, according to the AP report.

I saw a military jury convict Hennis on April 8 and sentence him to die Thursday[.] Hennis’ lawyer, Frank Spinner, said at the bottom of the courthouse steps that the jury never got to know his client, who did not testify. The jurors instead were treated to gruesome photos of the murder scene, he said.

That was Hennis’s choice. He was not required to testify. The members would have been instructed that they could not consider the declination to testify as evidence of guilt or hold it against him.

[T]he facts don’t help Hennis. First, he adopted a dog from a woman who was found murdered two days later. His bad luck. Second, a man who had never seen him before says he saw a man fitting Hennis’ description get into a white Chevrolet Chevette near the crime scene that night. The police sketch and Hennis’ mug shot are shockingly similar. Then, Hennis has no solid alibi for his whereabouts both times someone used Katie Eastburn’s stolen ATM card. A witness at the ATM described a tall man climbing out of a small, white car, like the kind of Chevette owned by the 6-foot-4 Hennis. A day after the murders, Hennis happened to take a single garment to be laundered, a Members Only jacket, like the kind a witness said the suspect near the scene had worn. Then, neighbors reported, he just happened to be burning items for hours in a barrel later that day. Beyond all that, there’s the DNA. There was maybe one place in the world where Hennis’ DNA could have been found that would have fatally undermined his version of events, and that’s where it was found – inside Katie Eastburn.

CAAFLog links to an interesting report of Mr. Eastburn’s reaction.

The jury left the courthouse at Fort Bragg about 5:30 p.m. Wednesday evening without a decision on a sentence for Hennis: life in prison or the death penalty. A death sentence requires a unanimous vote of all 14 jurors; a life sentence requires agreement from at least 11 of the jurors.

Hennis was convicted of premeditated murder, so it’s one or the other life or death. The paper seems to have picked up on the three-quarters vote needed for a sentence in excess of 10 years. In this case he’s already going to get life, the question is whether all 14 members will vote to terminate it.

Deliberations continue today.

The family of a former Fort Bragg soldier convicted of killing a Fayetteville woman and two small children in 1985 on Monday begged a military jury not to sentence him to death for the crimes. The panel of 14 Army officers and enlisted personnel last week found Master Sgt. Timothy Hennis guilty of three counts of premeditated murder and is considering his sentence.

Some interesting video attached to this.

Army Times reports:

Defense attorneys have rested their case in the sentencing of a soldier convicted of murder in the slayings of a North Carolina mother and two of her daughters.

The former Coast Guard Sector Anchorage Commander was awarded the maximum allowable punishment at an Admiral’s Mast Friday and will retire on July 1 in the grade of lieutenant with a general discharge in lieu of trial by a general court-martial. Capt. Herbert M. Hamilton, III, was relieved of command in May 2009. An investigation conducted by the Coast Guard Investigative Service revealed that Hamilton had inappropriate relationships with several women, including officer and enlisted Coast Guard members, and civilians, over a period of more than 13 years. Hamilton also was charged with misusing government computers and cell phones; making false official statements; and soliciting an enlisted member to destroy evidence. His retirement as a lieutenant in lieu of trial by a general court-martial is the result of a pretrial agreement and Hamilton’s unsatisfactory service in the grades of captain, commander, and lieutenant commander.

Thanks to cgblog.org.

2. Hennis. I’m sure you are now aware that Hennis was convicted of three premeditated murder charges in less than three hours of deliberation. The sentencing part of the trial began today.

Military jurors began sentencing hearings Friday to determine if a soldier convicted of murder in the slayings of a North Carolina mother and her two children will get the death penalty or life in prison.

Here’s another interesting take on the prosecution of Hennis by an editor who believes he’s guilty.

WRAL.com has this “victim impact” information about the Hennis case.

3. Hasan has now arrived at Belton County Jail where he will likely stay until he is sentenced.

Maj. Nidal Hasan was airlifted from a San Antonio military hospital to the Bell County Jail in Belton about 4 a.m. Friday. He had been at the military hospital since shortly after the Nov. 5 shooting spree that left him paralyzed.

4. A fraud through faked service:

A man who falsely claimed a chestful of military medals was sentenced to a year in prison and was ordered to repay $11,098 in veterans benefits he shouldn’t have received. Thomas Barnhart, 59, had 21 years of legitimate Navy and Coast Guard service, including offshore duty in Vietnam. But starting in 1979, he began inflating his experience in claims for promotions and benefits, Assistant U.S. Attorney Jake Jacobsen told U.S. District Judge James Turk today in Roanoke.

5. You may have been following the issue of DoD wanting to shut down WikiLeaks, and in particular the issue of a recently released video of an Apache helicopter attack. Political Theatrics has this post.

Wikileaks released a 17-minute video on April 5th which depicted an Apache helicopter opening fire on a group of innocent Iraqi’s in New Baghdad in 2007; two of those killed were Reuters Journalists carrying their camera bags over their shoulders – Namir Noor-Eldeen, 22 and Saeed Chmagh, 40. On Monday evening, the Pentagon acknowledged and verified the legitimacy of the video.

Consortiumnews.com has another article on this subject.

Not only did a U.S. military helicopter gunship mow them down amid macho jokes and chuckling – after mistaking a couple of cameras for weapons – but the American attackers then blew away several Iraqis who arrived in a van and tried to take one of the wounded newsmen to a hospital. Two children in the van were badly wounded. “Well, it’s their fault for bringing their kids into a battle,” one American remarked.

6. Capital Flyer has more dire warnings on the career impact of a DUI.

7. FayObserver has this piece on the Pernell Article 32, UCMJ, hearing ongoing at Fort Bragg.

A Fort Bragg soldier accused of a rape and break-ins on post told an investigator he heard a voice in his head called Jason that told him to do “bad things,” according to testimony at an Article 32 hearing.

Hasan’s lawyer claims the U.S. Army is withholding key information he needs to defend Hasan. Attorney John Galligan said he has been waiting months for classified material needed to help his client. He said he has been given limited access to criminal investigation files.

Does Mr. Galligan have the appropriate security clearance? If not, that would be a reason for a withholding of classified material.

Has Mr. Galligan submitted his SF 86 and other required documents to obtain a clearance? According to Galligan, Hasan is paralyzed and hasn’t left Brooke Army Medical Center because officials still have not decided where he should be put next.

WOAI’s Kristina De Leon asked Galligan why and how he could defend Hasan?

“For the same reason I can defend a soldier who’s accused of killing detainees in Afghanistan,” responded Galligan.

Good answer! Like it or not regulatory and constitutional rights are not dependent (completely) on who you are but what you are accused of and the process that is being followed.

U.S. District Judge Terrence Boyle on Wednesday dismissed an effort by Army Master Sgt. Timothy Bailey Hennis to stop his court-martial for a 1985 triple homicide near Fort Bragg. A jury has been seated in the court-martial. Opening statements and testimony are scheduled to begin today.

It appears that the judge deferred to the court-martial process. It appears that the judge deferred to the court-martial process, Hennis v. Hemlick, 5:09-HC-2169-BO (E.D.N.C. 16 March 2010).

Hennis asserts the military lacks jurisdiction to court martial him because of a “break in service” which relieves Hennis from court martial for any crimes committed in a prior enlistment from which he has been discharged. Hirshberg v. Cooke, 336 U.S. 210 (1949) (holding military was not entitled to institute court-martial proceedings against a service member offenses committed during an earlier enlistment – which had expired and from which he had honorably discharged – even though he had re-enlisted the day after being discharged).

First Judge Boyle summarizes the procedure applicable to trials by court-martial and then dicusses writs of habeas corpus under 28 U. S. Code 2241. Citing to Schlesinger v. Councilman, 420 U.S. 738 (1975), Judge Boyle’s prudential decision is:

“when a serviceman charged with crimes by military authorities can show no harm other than that attendant to resolution of his case in the military court system, the federal district courts must refrain from intervention, by way of injunction or otherwise.” Id. at 758.

Judge Boyle uses Hamdan v. Rumsfeld, 548 U.S. 557, 586 (2006) to support his conclusion, because comity and abstention requires the military justice system act first: to protect good order and discipline and the integrated procedures created by the UCMJ system. In light of CAAF’s current move to change its rules, this was interesting.

a critical element of [military justice process] which is the Court of Military Appeals consisting of civilian judges completely removed from all military influence or persuasion ….”

Judge Boyle writes that the case is so “material fact mired” with complicated regulations and military distinct facts, that the court-martial is a better process to handle the case. Basically, Judge Boyle finds there is nothing unique to the case justifying his intervention. Rather, argues that a court-martial with its subject matter expertise is the best and correct forum to resolve the issues. And assuming conviction, Hennis will still get his day in federal court, albeit later.

Therefore, as the circumstances are set out, this court, like that in Councilman, “discerns nothing that outweighs the strong considerations favoring exhaustion of remedies or that warrants intruding on the integrity of the military court processes.” [Councilman, 420 U.S.] at 761.

Trial starts 17 March 2010, St. Patrick’s Day. I have no idea if Hennis is Irish.

Following a two-week absence, the Fort Hood attorney was back at it Friday despite a gag order, blogging on the perceived injustices suffered by his defense team in defending Major Nidal Hasan, the man charged in the shooting deaths of 13 people.

As previously reported by The Daily Caller, John P. Galligan, Hasan’s civilian defense attorney, made waves in the legal community when he launched the high-profile blog to highlight his obstacles in defending the case. The blog was silent for nearly two weeks after the initial controversy erupted, but he’s back, saying: “My blog will continue to highlight how my client is being unfairly treated.”

In my personal opinion, I don’t think it’s a good idea for the attorney representing the specific accused to be blogging about the ongoing case, even though I don’t know of any authority of an Article 32, UCMJ, appointing authority to issue a gag-order to defense counsel – and I include military counsel here.

However, I am also of the belief that the government should also face a gag order. It is patently unfair for the prosecution and government to have the unrestricted ability to issue press statements and information – which may contain wrong or inflammatory information — or for politicians to be doing the same, and at the same time restrict the defense.

Mr. Galligan says:

“I believe I’m operating in a very, very unique environment, I’m representing a client in a potential court martial process, where there is no judge — I’m still operating in a command driven environment … where everybody from the commander-in-chief on down has already commented on this case and condemned my client.” “I’m not disclosing anything, my client is getting screwed! How do you think you’d feel when you wake up every day and see on MSNBC or Fox news a tour of your client’s home? Do I have to get a press badge to get that kind of access?! … I’ve gotten more out of the press than I’ve gotten out of the military,” says Galligan.

Perhaps the government should begin to exercise some good judgment and have “no comment,” if for no other reason than to avoid litigating unconstitutionally prejudicial pretrial publicity.

If Mr. Galligan is correct that the Government Representative (there is no trial counsel at an Article 32, UCMJ, stage. See R.C.M. 405(d)(3)(a),) and the Investigating Officer aren’t providing required information, R.C.M. 405(f)(10) ought to be invoked at some point. IMHO that rule is actually broader than R.C.M. 701 and does require the government to seek out and provide information. As to the mitigation expert, well perhaps R.C.M. 405(f)(11) applies. I know it is routine for the government to deny expert assistance pretrial including at an Article 32, UCMJ, stage, but . . . If they are interested in a speedy trial, as they’ve said, why wait until referral (as if referral ain’t gonna happen) which is months away. Without the mitigation expert how can the defense develop information for submission under R.C.M. 405.

The Army has charged an Illinois National Guardsman in Afghanistan with possession of child and adult pornography, and his family has come to his defense, arguing that he was the target of a personal vendetta.

Army Times reports. This is an ongoing case that started because the kids mother sent him a photograph of a child. In the photograph you can apparently see her crack.

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Thanks to CAAFLog here is a link to an article about the Walker retrial at Quantico. (Unofficially, I’m told the case may be completed by 5 February.)

A former Marine sitting on death row for the last 16-years after being convicted of murdering two colleagues in 1992 may be re-sentenced to life in the brig after an appellate court set aside his initial death sentence last year.

Marine Corps Times reports.

They have a panel of 13 members. They began with 15 members initially assigned to the panel. After the voir dire process they had excused a total of 28 prospective members for one reason or another. Military law requires a minimum of 12 members in a death penalty case. And they must be unanimous in voting for death. Walker already has an approved premeditated murder conviction. So the issue is whether he will be sentenced for the one already approved, or will he be convicted of the second murder and thus sentenced for two.

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The results of a second investigation into the deadly battle at Wanat, Afghanistan, in 2008 could lead to action being taken against Army leaders involved in the operation that has come to symbolize the perils of underestimating enemy and terrain in the Southwest Asian nation.

Honolulu Advertizer reports.

I’m losing the battle on the increasing informality of dress in courts-martial. Even the Marines have now made chucks the uniform for court. But, so far we haven’t gone this far:

At one point yesterday, Colonel Mario Dutil, the chief military judge of the Canadian Forces, asked crossly, “Why not a Tilley hat, cargo pants and a Columbia shirt?” Col. Dutil was hearing the first of a slew of pre-trial motions in the second-degree murder prosecution of Captain Robert Semrau, the soldier charged in the Oct. 19, 2008, death of a severely wounded Talib. Yet just as in the civilian world criminal trials can descend into flights of goofiness, so can military ones, and that is pretty much what happened here yesterday. The first on the defence list of seven motions was an application to vary the court-martial administrative instruction about dress, that is, what the participants should wear in court.

The Globe & Mail reports.

Maj. Nidal Malik Hasan, the Army psychiatrist accused of killing 12 soldiers and a civilian at Fort Hood last month, won’t get the two additional military lawyers his defense team has requested. John P. Galligan, the retired Army colonel who is representing Maj. Hasan, asked the Army earlier this month to add the veteran legal officers to the defense team. In addition to Mr. Galligan, Maj. Hasan has a military-appointed defense counsel, Maj. Christopher Martin. But Mr. Galligan said Friday night that the Army had denied his request, although he may be able to ask for different officers to join the defense.

The IMC rules allow for a request to appoint a named military attorney, and the commander can make a discretionary decision to allow, Major Martin the current military defense counsel to remain on the case. Thus the Army retains control over who can represent Major Hasan, while at the same time having unfettered discretion on who and how many trial counsel to assign the case.

Officials at Fort Hood couldn’t immediately be reached for comment. The Army has several lawyers working for the prosecution, including Col. Michael E. Mulligan, a high-ranking prosecutor with experience in death-penalty cases.

The Wall Street Journal reports.

While Hasan recovers at the Brooke Army Medical Center in San Antonio, the Army is readying itself to charge Hasan in military court, where he could face the death-penalty. But prosecutors will have to charge Hasan under the Uniform Code of Military Justice (UCMJ), which was amended in 2004 to include “Laci and Conner’s Law” or the Unborn Victims of Violence Act (UVVA). The UVVA requires that the justice system charge the perpetrator of a violent crime against a pregnant woman, resulting in death or bodily injury to her unborn child, with committing a separate and distinct offence against the mother’s unborn child. The law specifies that the punishment applied for the injury or death of the child must be the same – with the exception of the death penalty – as if “that injury or death occurred to the unborn child’s mother.”

This type of prosecution is not new for courts-martial, but I believe it will be first for a prosecution under Article 119a., UCMJ. Prior to the new Article 119., several prosecutions occurred under Article 134, UCMJ. The offense does not require that Major Hasan knew one of his victims was pregnant or that he intended to kill the “unborn child.” A death sentence is not authorized for this individual offense, but up to LWOP is.

Here is the complete application. The blog also notes:

Before 1995, according to the Roanoke County Circuit Court clerk’s office, Virginia law required a psychiatric evaluation and documented explanation for why a resident needed to carry a concealed handgun. But by the time Hasan applied in October 1995, all that was required was a criminal background check and certification of a gun safety course. For some reason proof of having completed individual infantry training in the U.S. Army (next slide) was not enough for the Commonwealth of Virginia when it came to gun safety and Hasan had to take an NRA course as well.

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.