If passed the bill will have retroactive effect.

SECTION 1. REIMBURSEMENT OF ATTORNEY FEES OF A MEMBER OF THE ARMED FORCES WHO RETAINS PRIVATE COUNSEL AND HAS CHARGES BROUGHT UNDER THE UNIFORM CODE OF MILITARY JUSTICE DISMISSED OR WITHDRAWN OR IS ACQUITTED. (a) Reimbursement Required Under Certain Circumstances- Section 827 of title 10, United States Code (article 27 of the Uniform Code of Military Justice), is amended by adding at the end the following new subsection: `(d)(1) Nothing in this section (article) prohibits an accused from retaining private counsel to serve as defense counsel before a general court-martial or special court-martial. `(2)(A) If the accused retains private counsel to represent the accused in a case described in subparagraph (B) and all of the charges against the accused are dismissed or withdrawn or the accused is acquitted on all charges (or some combination of dismissed or withdrawn charges and acquittal), the Secretary concerned shall reimburse the accused for all attorney fees incurred by the accused in the case. `(B) Subparagraph (A) applies with respect to a case against a person subject to this chapter who is accused of any offense in violation of this chapter under circumstances involving the treatment of an insurgent, enemy combatant, detainee, or a suspected or known terrorist. `(C) The Secretary concerned shall provide reimbursement required under this paragraph using funds otherwise available to the Secretary to carry out this chapter.’. (b) Retroactive Application of Amendment- Paragraph (2) of subsection (d) of section 827 of title 10, United States Code (article 27 of the Uniform Code of Military Justice), as added by subsection (a), applies with respect to any charges brought under the Uniform Code of Military Justice after September 11, 2001, that involve the circumstances described in subparagraph (B) of such paragraph.

CAAFlog observes, and I agree that although it appears generated as a result of the SEAL cases, the effect could be broader. We’ve all of us had cases since 11 September 2001 that could or may fit into subparagraph (B); and can think of one of mine right now of a guard at Guantanamo.

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.