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.

Former computer hacker Adrian Lamo (who pointed federal authorities to the Army Intelligence analyst who allegedly leaked the documents, Bradley Manning), has implicated two men in the Boston area in the controversy. Lamo shared that these two men have told him through phone conversations that they provided Manning with assistance, in the form of encryption software. They also allegedly taught Manning how to use the software.

Second Lt. Douglas Sofranko, a Florida National Guard officer photographed wearing a Navy SEAL Trident insignia he didn’t rate, has been relieved of his full-time duties with the Guard, and his future in the military is uncertain.

The earlier post, “Ooops I have to graduate?”, is here.

Military.com reports that:

Naval Criminal Investigative Service agents and Virginia Beach police are looking into possible threats against a local Navy officer who says he was subjected to anti-gay harassment while assigned to Oceana Naval Air Station.

deathandtaxesmag.com has this rather odd report on the astronaut case.

After a daylong hearing on Thursday, a Navy panel has finally suggested that Lisa Nowak should have her flying wings clipped. Her discharge comes in response to the time she famously drove from Texas to Florida in a pair of diapers and maced another astronaut over a love interest in 2007. However, if Nowak’s crush were a woman and not a man, this space cadet would be long gone by now.

The Arizona Daily Star reports that:

An airman who oversaw the armory at Davis-Monthan Air Force Base was sentenced to 19 months in prison Friday for stealing more than $25,000 worth of military weaponry, bullets and accessories and selling some of his haul on eBay.

The Record-Courier continues its coverage of the Davila death penalty case at Fort Lewis.

The court-martial of the woman who is accused of killing an Army couple in Fort Lewis, Wash., is scheduled for next week. Spc. Ivette Davila faces the death penalty in the March 2, 2008, slayings of soldiers Staff Sgt. Timothy and Sgt. Randi Miller. Davila’s general court-martial on kidnapping and murder charges starts Monday, according to Joseph J. Piek, spokesman for Joint Base Lewis-McChord in Washington. The hearing is expected to last through Aug. 26.

Sounds like they really do have a PTA?

7th Space Interactive reports:

A former United States Army sergeant pleaded guilty today to bribery in connection with a fuel theft scheme to solicit more than $400,000 in bribes from a government contractor in Afghanistan, announced Assistant Attorney General Lanny A Breuer of the Criminal Division and United States Attorney Neil H MacBride of the Eastern District of Virginia. Michael Dugger, 27, of Jonesboro, Ga ., pleaded guilty today before United States District Court Judge T S Ellis, III in the Eastern District of Virginia to a one-count criminal information charging him with bribery as a public official. Dugger was originally charged in a criminal complaint filed on June 24, 2010. The complaint charged him and Stevan Nathan Ringo, a former United States Army staff sergeant in Afghanistan, with one count of conspiracy to commit theft of government property.

(A client until they whisked him off to prosecution in the E.D. of VA.)

Second Lt. Douglas Sofranko has spent the last year impressing his fellow soldiers in the Florida Army National Guard with stories of his days as a Navy SEAL, while proudly wearing the distinctive Trident insignia on his Army uniform. He even had the SEAL Creed hung on the wall of his office. The problem is, it was all a lie.

Ooooops, you have photograph?

Navy Times reached Sofranko by telephone at his Miami office Aug. 4. The officer initially denied wearing the SEAL insignia on his Army uniform. “I do not,” he said when asked if he wears the SEAL Trident badge on his uniform. But his story changed once he was told of a photograph showing him wearing the Trident on his Army combat uniform.

Kokomo Perspective reports that:

Rep. Burton issued the following statement after the Navy dropped several charges against two Navy SEALs who are accused of mistreating terrorist mastermind Ahmed Hashim Abed, the man believed to be responsible for the infamous mutilations of four American contractors in Fallujah, Iraq, in 2004.

2. Hasan:

Statesman.com reports on the transfer of Major Hasan (with video of press conference of the Sheriff, Dan Smith).

Referring to the pretrial confinement and an expenditure likely to exceed 500K:

“It’s a total waste of money,” Galligan said. Hasan “is not a flight risk.”

That may be correct. But what about his safety from others. Would he not become a target of some hothead if he were released on pretrial restriction to base?

3. Hennis:

Question resolved, as reported by the newsobserver.com (I had wondered how/why they got him into confinement at that stage of the trial):

After the prosecution rested, a military judge ordered that Hennis remain in confinement. His attorneys had argued that the judge should release him because Hennis always followed the court’s orders and reported to Fort Bragg in 2006 after he was called back to the Army to face charges.

As I commented earlier (HERE), confinement after conviction and pending a sentencing hearing is an unusual step. However, it appears that the military judge was convinced that exceptional circumstances warranted immediate confinement. United States v. Tilghman, 44 M.J. 493 (C.A.A.F. 1996), would be the primary case to review on this type of action post-conviction, but pre-sentence.

Here is an excellent review, by Dwight “ML” Sullivan at CAAFLog on the political posturing, pseudo-lawyering, and plain gaffs about these cases.

First SEAL prosecution imminent

It is my recollection that I learned about the Know Nothing party in history 101. Thanks to Wikipedia I can get my memory back.

The Know Nothing movement was a nativist American political movement of the 1840s and 1850s. It was empowered by popular fears that the country was being overwhelmed by German and Irish Catholic immigrants, who were often regarded as hostile to U.S. values and controlled by the Popein Rome. Mainly active from 1854 to 1856, it strove to curb immigration and naturalization, though its efforts met with little success. There were few prominent leaders, and the largely middle-class and entirely Protestant membership fragmented over the issue of slavery. Most ended up joining the Republican Party by the time of the 1860 presidential election.

I venture that LTC Lakin and his supporters, along with a number of other could fit well into a no nothing party.

One of three Navy SEALs facing a court martial announced at a rally Saturday that he has passed a polygraph test, casting doubt on the Pentagon’s case against him. Rep. John Shadegg (R.-Ariz.) who attended and spoke at the rally, told HUMAN EVENTS that “while the lie detector test results won’t be admissible in a court of law and their jury will never know that he passed, it is nonetheless important for the American public to know.

Mil. R. Evid. 707 prohibits testimony about a polygraph in court, but not in the media, heh, heh.

(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence. (b) Nothing in this section is intended to exclude from evidence statements made during a polygraph examination which are otherwise admissible.

And as we know, the Supreme Court agreed that polygraphs are unreliable and should not be admitted, in United States v. Scheffer, 523 U.S. 303 (1998), a court-martial case in which Scheffer wanted to admit evidence of an exculpatory polygraph. From the “headnotes,”

A polygraph examination of respondent airman indicated, in the opinion of the Air Force examiner administering the test, that there was “no deception” in respondent’s denial that he had used drugs since enlisting. Urinalysis, however, revealed the presence of methamphetamine, and respondent was tried by general court-martial for using that drug and for other offenses. In denying his motion to introduce the polygraph evidence to support his testimony that he did not knowingly use drugs, the military judge relied on Military Rule of Evidence 707, which makes polygraph evidence inadmissible in court-martial proceedings. Respondent was convicted on all counts, and the Air Force Court of Criminal Appeals affirmed. The Court of Appeals for the Armed Forces reversed, holding that a per se exclusion of polygraph evidence offered by an accused to support his credibility violates his Sixth Amendment right to present a defense. Held: The judgment is reversed.

Here is a link to one of the most vocal anti-polygraph advocates in which he argues:

• The consensus view among scientists is that polygraph testing has no scientific basis?
• The FBI considered the creator of the lie detector test to be a phony and a crackpot?
• The man who started the CIA’s polygraph program thinks that plants can read human thoughts?
• The foremost polygraph advocate in academia was discredited by a federal judge?
• A prominent past-president of the American Polygraph Association is a phony Ph.D., and this premier polygraph organization doesn’t consider it an ethics problem?
• The longest polygraph school produces newly minted polygraphers in just 14 weeks — less than half the time it takes to graduate from a typical barber college?
• The Defense Academy for Credibility Assessment (the erstwhile DoD Polygraph Institute) suppressed a study suggesting that innocent blacks are more likely to fail the polygraph than innocent whites?
• The researcher who developed the U.S. Government’s polygraph Test for Espionage and Sabotage”thought the whole security screening program should be shut down?”
• The National Academy of Sciences concluded that “[polygraph testing’s] accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies?”
• Spies Ignatz Theodor Griebl, Karel Frantisek Koecher, Jiri Pasovsky, Larry Wu-tai Chin, Aldrich Hazen Ames, Ana Belen Montes, and Leandro Aragoncillo all passed the polygraph?
• One of the most prolific serial killers in U.S. history passed the polygraph and killed again?
• Al-Qaeda and Iraqi insurgents know full well that the lie detector is bogus?
• You don’t have to be a psychopath, go to spy school, or somehow believe your own lies to fool the polygraph? (We’ll reveal how it’s done.)

Here is a link to another site which seems to think polygraphs could be admissible under certain limited circumstances.

Prosecutors handling the courts-martial of two local Navy SEALs charged with not stopping a teammate’s alleged assault on an Iraqi detainee faced another setback Friday. Cmdr. Tierney Carlos agreed to exclude a statement made by one of the SEALs to the special agent investigating the allegations in September because the agent didn’t advise him of his right to remain silent. As a result, one of two charges against Petty Officer 2nd Class Jonathan Keefe likely will be dropped.

The case against a Navy SEAL accused of not protecting an alleged Iraqi terrorist took a major turn Friday when a military judge ordered that five key defense witnesses be granted immunity to testify on his behalf. If not, he warned, the case will be halted.

Here is an interesting comment on CAAFLogs post on this case.

JWS says: March 13, 2010 at 12:40 pm (Quote) There is another aspect that makes all this even more weird. I have changed my mind on this case because I have learned something new. Apparently two factual allegations are: 1. The assault was not at the arrest scene. These two Seals purposely went to the brig just to beat up the thug. 2. They then falsely blamed the assault on the MAA at the brig. If true, this is ugly. Now I see why Gen. Cleveland recommended mast. He was hoping to keep things quiet. And it also explains why the dug their heels in when a CM was demanded.

Anyone have information as to the validity of this?

Five sailors could offer testimony contradicting the government’s main witness in the controversial prosecution of three Navy SEALs accused of mistreating a suspected Iraqi terrorist. But whether they’ll take the stand is in question after the government denied their requests for immunity on Friday.

As military justice practitioners well know, the issue of immunity for defense witnesses is difficult. The prosecution routinely grants their witnesses immunity, but rarely, unless ordered by a judge, do they grant immunity to defense witnesses. I’m not sure the SEAL cases are ones in which this obvious disparity should become an issue.

Military.com reports here (initially):

The Army has been investigating five soldiers at its largest training base since December over allegations that soldiers’ food may have been poisoned, but officials said Friday no one was ever in any danger.

But the reports now are:

A statement released by authorities at Fort Jackson also said no credible evidence has been found to support the allegations.

Neal Puckett, McCabe’s civilian defense lawyer, had opposed delaying the trial but reluctantly agreed to it after three other SEALs expected to testify notified the court they’ve retained their own lawyer.

Kate Wiltrout of The Viginian-Pilot

The trial for the Navy SEAL accused of punching an alleged al-Qaida terrorist while in U.S. custody in Iraq has been postponed until May 3, but the trial will remain in Norfolk. Capt. Moira Modzelewski granted government prosecutors the continuance on the grounds that most of the evidence in the case is still undergoing a classification review and has yet to be seen by either the prosecution or the defense.

Navy Times reports.

It may be meaningless at the moment that the trial hasn’t been moved. It seems that this MJ is being cautious in terms of making sure the discovery issues are ironed out before deciding what to do about venue. The court-martial is still pending.

Here’s why the case may not move, thanks CAAFLog for the link.

Another judge has ruled that two other SEALs accused of lying to investigators should be tried in Iraq, site of the alleged assault, because they have the right to confront their accuser in open court. But McCabe’s attorney, Neal Puckett, says there’s no need to move his trial because he doesn’t need to question the detainee.

A military judge has decided to move the trial for one of three Navy SEALs accused in connection with the alleged assault of a suspected terrorist to Iraq. Cmdr. Tierney Carlos, the trial judge for the court-martial of Special Warfare Operator 2nd Class (SEAL) Jonathan Elliot Keefe, has agreed with defense motions to move the April 6 trial to Camp Victory in Iraq so Keefe can face the alleged victim, Ahmed Hashim Abed, whom the government sought to depose in lieu of a trial appearance. “If he is available for a deposition, then he is available for trial,” Carlos said.

Navy Times reports.

Based on my own experiences going to Camp Victory, this is going to be expensive. Maybe they can get the NAF at Norfolk to put together a flight of all participants to Kuwait, and then arrange a flight from Ali Alsaleem up to Baghdad. Plus there are going to be some interesting logistics.

[Correction] Daily Press reports that it’s actually two of the three trials: Keefe and Huertas. So one would think the third will be also?

Navy prosecutors have asked a judge to delay the trials of two SEALs accused in connection with the alleged assault of a reported al-Qaida terrorist — apparently because of evidence issues.

Navy Times reports.

If as is indicated there are classified document issues, then it is clear this trial will take time to complete. Having participated in many classified trials, with one ongoing, over the years I would say that it will take several months to resolve the issues. Each of the counsel may well have to get security clearances established. The time to get clearances will be a function of the classification levels involved. And then there may be Mil. R. Evid. 505 issues.

Dear Representative Burton, Thank you for your letter expressing your and your colleagues concern regarding the pending Courts-martial of Petty Officers Huertas, McCabe, and Keefe. I understand your interest in these cases and can assure you that I am committed to protecting the rights of the Sailors who have been accused. Regrettably it appears that your perception of the incident is based upon incomplete and factually inaccurate press coverage. Despite what has been reported, these allegations are not founded solely on the word of the detainee, but rather, were initially raised by other U.S. service members. Additionally, the alleged injuries did not occur during actions on the objective, as is also being widely reported in the media. A medical examination conducted at the time the detainee was turned over to U.S. forces determined that his alleged injuries were inflicted several hours after the operation had ended, and while in the custody and care of the U.S. at Camp Schweidler’s detainee holding facility. While the assault and resulting injury to the detainee were relatively minor, the more disconcerting allegations are those related to the Sailors’ attempts to cover-up the incident, particularly in what appears to be an effort to influence the testimony of a witness. All of these allegations were fully investigated by the Naval Criminal Investigative Service (NCIS). As you have likely read, I chose to deal with this incident administratively via nonnjudicial punishment pursuant to Article 15 of the UeMJ. However, Petty Officers Huertas, McCabe and Keefe elected to exercise their UCMJ rights to refuse such a hearing. I have attached previously released, redacted copies of the charge sheets in the hope that they will help clarify the allegations surrounding this incident. These charges were drawn from information disclosed during the course of the investigation. The release of any further information at this time would be inappropriate as it might prejudice the outcome of the trial. I take my military justice authority and responsibility for maintaining good order and discipline very seriously, as I have in six commands previously. Discipline and integrity are primary factors that make our U.S. Special Operators such an effective fighting force. The abuse of a detainee, no matter how minor, creates strategic repercussions that harm our nation’s security and ultimately costs the lives of U.S. citizens. I must ensure that the service members under my command abide by the laws passed by Congress and follow the lawful orders of their superior officers. When there are reasonable grounds to believe that an offense has been committed, and that a specific individual in my command has committed that offense, it is my duty to take appropriate action to not only ensure justice is done, but also to maintain good order and discipline. It is these factors that led me to refer these charges to Special Courts-martial. I assure you that the rights of these Sailors are being protected and they will have all of the facts of the case presented and reviewed fully by an impartial panel. Sincerely, CHARLES T. CLEVELAND MG, U.S. ARMY Commanding

Published in Virginia Pilot.

Army Maj. Gen. Charles Cleveland has responded to a letter that challenges the handling of a case against three Navy SEALs accused of mishandling a suspected terrorist. In the Dec. 15 letter, addressed to Rep. Dan Burton, R-Ind., Cleveland essentially refuses to drop the charges against the three men. “While the assault and resulting injury to the detainee were relatively minor, the more disconcerting allegations are those related to the sailor’s attempts to cover-up the incident,” said Cleveland, who writes that this appears to be an attempt to influence the testimony of a witness. Cleveland writes that the “alleged allegations are not founded solely on the word of the detainee, but rather, were initially raised by other U.S. service members.”

Daily Press reports.

The court-martial will proceed. There are two comments to the piece.

When will they learn… the offense is the cover-up.

Which is something defense counsel have to explain to clients from time to time – it’s not the crime, it’s the cover-up; and an interesting defense of, apparently, “justification?”

There wouldn’t have been any cover-up if they hadn’t of had any bogus charges brought against them to begin with.

The White House will not weigh in on the case of the three Navy SEALs facing court martial for allegedly mistreating an Iraqi terror suspect believed to have been behind the slaying of four Americans in 2004.

CNSNews.com reports.

We already have too much litigation by media, and by Congress in courts-martials and other UCMJ actions. The politicizing of military justice doesn’t serve military justice.

The third SEAL accused in the assault of an alleged al-Qaida terrorist pleaded not guilty Tuesday to charges of dereliction of duty and making a false official statement in a military court on Norfolk Naval Base.

Trial by court-martial is set for 6 April 2010, Navy Times reports. The other two SEAL’s alleged to be involved with violating the UCMJ have each plead not guilty and have trial dates set.

Laurie L. Levenson (Loyola Law School Los Angeles) has posted Prosecutorial Soundbites: When Do They Cross the Line? (Georgia Law Review, Forthcoming) on SSRN. Here is the abstract: Even good prosecutors can cross the line with media soundbites. Especially in high-profile cases, prosecutors must assess if their pretrial remarks about a case meet their ethical obligations. In Gentile v. Nevada State Bar, 501 U.S. 1030 (1991), the United States Supreme Court held that while lawyers have the First Amendment right to make comments to the press, they do not have the right to make comments that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” Although ethical codes have adopted this broad standard, many have failed to identify more specifically when a prosecutor’s remarks pose a substantial likelihood of having such a prejudicial effect. Using 28 C.F.R. § 50.2 as a guide, this article seeks to identify those “hot-button” areas.