By SARAH CHACKO | Medill News Service
WASHINGTON — As more is learned about mental health issues faced by war fighters, it is likely that diminished capacity or insanity defenses could become more common in military trials and military leaders may be found at fault, according to experts speaking at the Military Reporters and Editors conference Friday.
Attorneys will still have to uphold the legal standard for that defense, said retired Cdr. Phil Cave, formerly a deputy director in the Navy’s Judge Advocate General’s office. For instance, having post traumatic stress disorder is not a good enough reason to plead insanity, Cave said. But sentencing could be more focused on mitigation, on what can be treated and how the person can be rehabilitated, he said.
Michael Navarre, special counsel in the Washington law firm Steptoe and Johnson, also noted that the diminished mental capacity defense is hard to support because people who join the military are presumed to be fit and ready for service.
Retired Lt. Col. Geoffrey Corn, who served as special assistant on law of war matters in the Army Judge Advocate General’s office, said during a discussion later in the conference that pounding on the chain of command is a classic military defense strategy. Because military commanders now have a better understanding on mental health issues, when a service member receives inadequate care and then commits a crime, lawyers are going to look back and ask why something wasn’t done, Corn said.
Panelists speculated on how these issues would weigh on the case of Maj. Nidal Hasan who is accused of killing 13 people in a shooting at the Fort Hood Army post in Texas last year.
Cave said Hasan’s case is unusual because of the extreme nature of the crime and likely will be treated as a capital murder case.
“Based on what I’ve read … he’s got a tough time operating an insanity defense.”
Michelle McCluer, executive director of the National Institute of Military Justice at American University’s Washington College of Law, encouraged reporters to keep an eye on the military commissions held at Guantanamo Bay.
She said someone from her organization tries to attend every military commission held at Guantanamo Bay because it is one of the few allowed to be an official observer. But even with that access, it is difficult to find out when case motions will be heard or commissions held and the logistical parameters of who they can talk to and when are always changing, she said.
“If you want to talk about transparency or the lack thereof, commissions are a great way to start,” she said.
