Today, the U.S. Army convened an Article 32 hearing – the military’s version of a preliminary hearing – to investigate charges made against Major Nidal Hasan and stemming from the November 5, 2009 massacre at Fort Hood, Texas. Hasan currently faces one charge and 13 specifications of premeditated murder in violation of Article 118 of the Uniform Code of Military Justice (UCMJ) and one charge and 32 specifications of attempted murder in violation of Article 80 of the Uniform Code of Military Justice.
Colonel James Pohl, an experienced Army judge advocate who, in January 2009, was appointed as the Chief Presiding Officer for the Military Commissions (charged with trying “enemy noncombatants” in on-going military operations against terrorism), has been detailed to serve as the Article 32 investigating officer in this case. Colonel Pohl is responsible for determining if there is sufficient evidence to proceed to trial by court-martial on each of the charges and specifications (commonly known in the civilian system as “counts”) and with making a recommendation as to the disposition of all charges and specifications.
Under the UCMJ and the military Rules for Courts-Martial (RCM), a military prosecutor (or “government representative” for the purposes of the Article 32 hearing) may request that the investigating officer consider additional charges and specifications against an accused. Similarly, the investigating officer may, on his own initiative, consider and recommend additional charges and specifications if supported by the evidence.
In this case, Hasan should face an additional specification of murder because Private First Class (PFC) Francheska Velez, one of Hasan’s victims, was pregnant at the time of her death. Under the UCMJ and the federal Unborn Victims of Violence Act (signed into law in 2004 by President George W. Bush), Hasan can be charged for the death of PFC Velez’s unborn child regardless of whether he knew that PFC Velez was pregnant when he shot her.
Thus, Colonel Pohl can and should consider evidence that Hasan’s conduct caused the death of PFC Velez’s unborn child and recommend that the convening authority – the Army general in command at Fort Hood – charge Hasan for the death of the child. Justice for PFC Velez, her family, and the U.S. Army demands it.