Larson said Hutchinson’s command did offer her child-care options when her plan fell through, but did not specify if those options included foster care, as was alleged by Courage to Resist. “So far, Spc. Hutchinson has chosen not to take advantage of any of those options,” Larson said. “A well-known veterans group was one of the groups offering to assist Spc. Hutchinson in caring for her child during her deployment. This group has an accredited child-care facility for soldiers in just these circumstances.”

Coastal Courier reports. No specifics yet on a court-martial trial date.

FrumForum interviewed retired Major Merideth A. Bucher, author of the much cited paper, The Impact of Pregnancy on U.S. Army Readiness. Bucher explains that a woman who becomes pregnant ceases to be available for combat service. She will be returned home; her unit is left missing a body, a soldier. She passionately told of her own experience: Two days before Desert Storm was to begin the female intelligence officer in the Major’s battalion became aware she was pregnant. Because she could not deploy and was sent home the battalion was left vulnerable by having to fight without an intelligence officer present. By losing one person everyone else has to work that much harder to get the mission accomplished. And when a woman soldier in particular gets pregnant, Bucher argues, “it weakens every female soldier standing as a member of that unit. If one woman does that it taints the water for everybody.”

Here is the link to Bucher’s paper, written when she was a major at the Air Command & Staff College, Air University.

The recent order about pregnancy while assigned to the AOR is in the process of being revoked, and the overall regulation (GO#1) under major revision. There will not be a court-martial for getting pregnant or getting a woman pregnant. My recollection is that the Navy went through turmoil when women were first assigned to combatant ships in mixed gender crews. At the time there was in place a fairly rigid sexual fraternization order, prohibiting sexual relations amongst crew members, even if the couple was married.

Bob McCarty has blogged the issue from what appears to be a non-lawyer perspective.

Seven U.S. soldiers, including three men, have already been punished under six-week-old rules making pregnancy a violation of military law in northern Iraq.

Stars & Stripes reports.

The four soldiers who became pregnant were given letters of reprimand that will not remain a part of the permanent military file, Cucolo said, as were two of the male soldiers. The third male soldier, a noncommissioned officer who is married and impregnated a subordinate who is not his wife, was also charged with fraternization and given a permanent letter of reprimand, Cucolo said. One of the female soldiers declined to say who impregnated her and the unit “let it drop,” Cucolo said, adding that he had no plans to further investigate paternity.

While Prof. Cory Yung reports: New Hampshire may finally eliminate their criminal adultery statute from the book.

The Army general commanding U.S. forces in northern Iraq has added pregnancy to the list of prohibitions for personnel under his command.

The policy, which went into effect Nov. 4, makes it possible to face punishment, including a court-martial and jail time, for becoming pregnant or impregnating a servicemember, according to the wording of the policy and confirmations from Army officials.

Stars & Stripes reports.

This may be a new and seemingly draconian policy for the Army. However, the type of policy envisioned isn’t new in my view. The policy doesn’t actually punish pregnancy it seems, what it prohibits and potentially punishes is a form of fraternization. The Navy has operated under policies prohibiting sexual relationships among crew-members of ships – of mixed gender crews, n.1. As the GCMCA has indicated, there is an adverse impact on units for deployed soldiers who become pregnant. On the surface this order borders on interference with personal behavior of the people involved and subject to challenge as unlawful. But the impact does seem reasonably related to an ongoing combat mission and only applies to personnel within the AOR during the time they are assigned to the AOR. It seems to me that military law does allow for such an order, but I would expect challenges.

To be lawful the order must relate to military duty – includes all acts reasonably necessary to accomplish a military mission, to safeguard or promote the morale, discipline, and usefulness of members of a command and which is directly connected with the maintenance of good order in the service. The order may not interfere with private rights or personal affairs. But conscience, religion, or personal philosophy cannot justify or excuse the disobedience of lawful order. See United States v. Hughey, 46 M.J. 152, 154 and n.2 (C.A.A.F. 1997).

In principal it is the defense burden to prove that an order is illegal unless the order is “palpably illegal on its face.” United States v. Kapla, 22 C.M.R. 825, 827 (A.F.B.R. 1956). Orders are thus clothed with an inference of lawfulness. See Hughey, 46 M.J. at 154; United States v. Nieves, 44 M.J. 96, 98 (C.A.A.F. 1996). “An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.” The accused has the burden to establish that the order is not lawful. Hughey, 46 M.J. at 154; United States v. Smith, 21 U.S.C.M.A. 231, 234, 45 C.M.R. 5, 8 (1972).

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n.1: Caution — haven’t checked, there may be a case or two on the Navy policies.

As many have already observed, the merits portion of Major Hasan’s trial at Fort Hood is likely a done deal, except for the potential mental health issues. I would even argue that it’s not necessary to know why Major Hasan killed a lot of innocent people in a very public way. There are 14 dead (I’m including the fetus) and a score or so physically injured. There are witnesses and apparently the weapon(s) have been found. The police officer who shot him can testify to chain of custody. With that evidence presented to the Members, who needs to know his motive to convict. A group of five to seven live witnesses can testify to victim impact, and have lots of letters standing by. Perhaps get some making a very simple video statement.

The elephant in the room will be his motive regardless of any evidence that he was or tried to associate with terrorists. With all of the media attention this case has and will continue to have, does anybody not understand and believe that regardless of what you tell the Members they will be thinking about what happened and why. That means you don’t need to present evidence of motive. Trying to prove Major Hasan is a terrorist or has terrorist ties isn’t going to aggravate the case any more than it is for a conviction and death penalty sentence. And it’s a conviction and sentence that will stick and not having to spend a long time in appellate review that people want and need.

So, do not the prosecutors and secondarily the judge have the hardest jobs. The prosecutors will have to resist getting too creative and overplaying, thus violating the KIS principle. The prosecutors will have to resist all the pundits and politicians who want to take over the case for their benefit. The prosecutors already have hurdles. Here are a few thoughts.

1. Extra-judicial statements from law enforcement, commanders, and witnesses. This is potential prejudicial pretrial publicity. Prosecutors need to get this under control. It’s easy for the lawyers, they are ethically prohibited from public discussions of the case. Someone needs to tell the “not authorized to speak” but here’s the data dump talkers, that they may be creating a problem for the prosecution of the case.

2. There will be some angst about the comments by the President and base commander. The President has done the political thing – showed up, gave a good speech, sent a good message – he doesn’t need to be in the weeds. By the time the case goes to trial the impact of any speech will be minimal. The base commander can continue to put out some bland personal statements and work the issue hard through the PAO.

3. Get Major Hasan a very good and very thorough – not the usual – R.C.M. 706 evaluation. Order it now, don’t wait. Bring in some top-notch PTSD experienced people, and assign one of them to the defense as a consultant (the Army has an awesome program at Fort Belvoir).

4. Don’t rush.

5. Don’t worry about introducing evidence about terrorism and terrorist connections. He’s going to get a death penalty without that. Kreutzer did, and he killed fewer people – and oh by the way because it wasn’t handled correctly, well you know what happened and how long the Kreutzer case has been around. Why create logistic problems: much of it may be classified, that means all of the procedures in Mil. R. Evid. 505 have to be followed, everyone needs security clearances, and some or part of the trial might need to be in a SCIF. Yes, it is very important to examine the reasons why Major Hasan did what he did. But not for the trial, a simple, straightforward, clean he did it, execute him strategy will get him ahead of Gray and Loving in the pipeline. Accede to demands for a show trial about terrorists and Islamists and stand by for a long-haul, slugfest, with lots of appellate work.

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 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.