A US special forces member suspected of having accidentally killed a British aid worker held hostage in Afghanistan could face disciplinary action, officials said Thursday.

Reuters reports that:

Col. James Pohl, the presiding officer at Hasan’s hearing, denied a request from Hasan’s lawyers to delay the Article 32 evidentiary hearing to determine if a military court-martial is warranted until November 8.

Air Force Times reports:

A terrified civilian worker begged a 911 dispatcher for help as gunfire and screams rang out during a deadly rampage at Fort Hood, according to a recording of the phone call played Wednesday at a military hearing to decide if an Army psychiatrist accused in the attack should stand trial.

UPI reports:

More than 100 witnesses have been called to testify at the hearing, including the 31 other people wounded in the attack and the two Fort Hood police officers who shot Hasan four times, CNN said.

The Sacramento Bee has more on the California National Guard cases, begun by a whistleblower.

Master Sgt. Toni Jaffe was known as “the M&M lady” because she decorated her office cubicle with keepsakes of the confection’s advertising characters.

Talking of whistleblowers, Air Force Times reports:

The Supreme Court has declined to hear an appeal from a former Mississippi Air National Guard colonel who alleged other officers retaliated against him for revealing corruption.

Army Col. James Pohl he told the defense it could put its arguments for the continuance into writing rather than air them in court. Defense attorneys did not want to explain their reasons publicly. “I believe that would protect your client’s interest,” Pohl said, adding that he would “give you that option rather than discuss it in open court.”

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.

Here is a link to Wikipedia and a biography of Major Hasan. The Washington Post also has a piece on his life.

The Houston Chronicle has an odd item:

The hearing initially will be devoted to a series of motions. It will resume, probably next month, with a potentially long list of witnesses. One expected motion will seek to change the status of the case from a summary court-martial to general court-martial. The death penalty is allowed in a general court-martial but not in a summary proceeding. “There will be no witnesses or evidence, and the defense will be complaining like it has all along about not getting the necessary discovery,” Galligan said of the hearing, and he predicted it would be a “carefully choreographed” proceeding.

Meanwhile WFAA.com reports that:

But Hasan’s lead defense attorney, Ret. Col. John Galligan, told News 8 that there’s no way he can move forward Tuesday at the Article 32 Hearing, which is similar to a preliminary hearing in the military justice system. Neither evidence nor witnesses will be presented until July 1.

AP reports:

Neither Maj. Nidal Hasan nor any witnesses were expected to speak during the hearing, at which military prosecutors and defense attorneys planned to discuss case preparations and other basic matters. Defense attorney John Galligan said he would seek to delay Hasan’s Article 32 hearing, which is similar to a civilian grand jury proceeding in which a judge hears witness testimony to determine whether the case should go to trial. No date has been set, but authorities have said the could be held as early as July 1. Galligan said the Article 32 hearing should not proceed before Oct. 1 because he still needs key documents, including some of Hasan’s military records, FBI files on Hasan’s alleged contact with a radical Islamic cleric in Yemen months before the shooting, and some government reviews of the shooting rampage. Hasan also is awaiting a mental evaluation, which is to be conducted sometime after the Article 32 hearing.

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.