Is Ft Hood's commander setting up Hasan's acquittal?

If Hasan is to stand trial, Ft Hood's commander, Lt. Gen Robert Cone, will be the prosecuting authority. He needs to shut up now to keep the charges from being thrown out. Here's why.

Bear with me while I walk this dog. Persons serving in the armed forces are subject to a unique set of federal laws known as the Uniform Code of Military Justice, UCMJ. Like any federal laws, the UCMJ is a Congressional enactment.

Under the UCMJ, service members to be tried by a military court-martial are legally charged not by a district attorney, for which there is no real military equivalent, but by the accused's commanding officer. (Military lawyers try the case on both sides, though.) Only a commander can sign the charge documents to set the ball rolling to hold a military trial, a court-martial. That means that the actual accuser of a soldier to stand trial is the soldier's commanding officer. In practice, this means that the accusing commander who signs the charges cannot be the commander who directs the court martial to be held since the UCMJ prohibits them from being the same person. Normally, therefore, an accused's immediate commander, usually a captain, signs the charges since captains cannot convene courts martial.

Felony offenses in the Army are tried by a General Court martial, so called because a GCM can be convened only by a general in the accused's chain of command. Lt. Gen. Cone is the commanding general of all Ft. Hood and is in Dr. (Maj.) Hasan's chain of command, although Cone is not the first general officer in Hasan's chain. As an Army doctor, Hasan is assigned to the Army medical Department, AMEDD, which in the Army is called a "stovepipe" command, meaning that operational command of day to day activities does not pass through Lt. Gen. Cone but administrative command, relating to AMEDD's "tenant" status on Ft. Hood, does pass through Cone.

Almost certainly Hasan's court-martial, if it come about, will be convened by Lt. Gen. Cone and members of the court's panel (jury) will be officers under Cone's command.

Here is why Lt. Gen. Cone may have already blown the prosecution. It is because of a principle in military law called Unlawful Command Influence on the trial of the accused.

In 1983 I took command of an artillery battery in 2d battalion, 3d Field Artillery Regiment, then stationed at Schloss Kaserne in the town of Butzbach, Germany. The 2/3 FAR was part off 3d Armored Division.

A legal scandal had recently been brewed by cases of convicted soldiers in the division whose cases had, as a matter of routine, worked up through the Court of Military review and the Court of Military Appeals. The division's commander, Maj. Gen. Thurman Anderson, had spoken on 10 or so occasions to groups of the division's officer and senior NCOs; part of the content of the general's remarks were held by the CMA to constitute unlawful command influence, or UCI in legal shorthand.

Justice.gov's summary of the controversy explains,

a. Major General Anderson assumed command of the Third Armored Division, headquartered in Frankfurt, Germany, on February 19, 1982. During the period from April to December 1982, General Anderson spoke at approximately ten different meetings, held at different locations
throughout his command, at which the topic of testifying on behalf of accused soldiers at courts-martial was raised. General Anderson's extemporaneous remarks were typically made in the course of lectures and discussions on a variety of topics. As the Court of Military Appeals summarized (Pet. App. 2a-3a), General Anderson "found it paradoxical for a unit commander, who had recommended that an accused be tried by a court-martial authorized to adjudge a punitive discharge, to later appear as a defense character witness at the sentencing stage of the trial, testify as to the accused's good character, and recommend that the convicted soldier be retained in the service." The court noted that "(s)ome of General Anderson's remarks were elaborated upon and possibly distorted by his subordinates. Be that as it may, his comments were later interpreted, or misinterpreted, to reflect an intent that a commander, first sergeant,
or other person from an accused's unit, should not give favorable presentencing testimony on behalf of an accused. This interpretation may have also extended to findings" at the guilt stage of courts-martial.

b. In late January or early February 1983, a military defense attorney in the course of a pretrial interview discovered that a noncommissioned officer believed that a policy existed in the Third Armored Division against servicemen offering favorable testimony at a court-martial in a defendant's behalf ... .

Ultimately, the courts afforded "some form of relief in all but 37 of the 219 cases." But convictions were not overturned because the Court held that MG Anderson's remarks were not directed toward any specific case that he had no personal interest in the outcome of any case brought before him.

But that is where Lt. Gen. Cone's remarks go "off the reservation." Cone has made public comments about the shootings at Ft Hood that directly and specifically refer to the alleged shooter, Dr. Hasan. TheHill.com reports, for example,

But Ft. Hood's base commander, Lt. Gen. Robert Cone, said Friday on NBC's "Today" show that Hasan shouted "Allahu Akbar!" before opening fire yesterday in a rampage that killed 13 and wounded 30. "Allahu Akbar!" is Arabic for "God is great!"

Does this statement, and many others like it the general has made, cross the UCI line? Lt. Gen. Cone has directly stated that Hasan is the shooter, meaning that the general has effectively pronounced Hasan guilty. But in military law as in civil criminal prosecutions, the accused enjoys presumption of innocence until the panel finds him guilty beyond reasonable doubt at trial.

Update: For clarity's sake, the law empowers the military to convene trials for offenses for which the death penalty may be sentenced. Murder is such an offense. The General Court martial must be convened specifically empowered to adjudge the death penalty and the panel does not have to adjudge it. of course, any court martial may try only offenses listed in the punitive articles of the UCMJ. The Ft Hood shootings unambiguously fall under military jurisdiction because (a) they took place on a military installation, (b) the accused is a military member and (c) so were 12 of the 13 the victims. Military law does allow for the shooter to be tried for the murder of the civilian under the UCMJ because the killing took place on a military installation.