Major Hasan’s war crimes trial requests

Military.com reports:

Fort Hood massacre suspect Maj. Nidal Malik Hasan sought to have some of his patients prosecuted for war crimes based on statements they made during psychiatric sessions with him, a captain who served on the base said Monday.   (emphasis added)

Other psychiatrists complained to superiors that Hasan’s actions violated doctor-patient confidentiality, Capt. Shannon Meehan told The Dallas Morning News.

Now here’s an odd comment.

Hasan may have been legally justified in reporting what patients disclosed, said Patrick McLain, a Dallas lawyer who specializes in military defense work and is not involved in the Hasan case. But it’s impossible to be sure without knowing exactly what they said, he added.

Military Rule of Evidence 513 is the rule of privilege for court-martial.  Prior to court-martial psychiatrists would be bound by their state and government ethics rules on patient-psychiatrist privilege.  Normally those rules prohibit release of information about past crimes.  Yes, there is an issue about a requirement to disclose future crimes.

(a) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.

There is also common-sense command imperative reason not to be disclosing what was said in a psychiatric confessional – trust.  The military is having enough problems providing adequate, competent, timely mental health care to personnel.  On top of that, those with mental health problems continually fight the stigma associated with having mental health problems.  It wasn’t until recently that the rules were changed for security clearances allowing people with mental health problems like combat related PTSD to be still considered for security clearances.  So I’m not sure the military would want to make a habit of allowing it’s mental health providers to disclose information.

Now there are eight exceptions to Mil. R. Evid. 513.

1.  The patient is not dead so that wouldn’t apply.

2.  The patient is not accused of spouse, child abuse or neglect.  Although I could see a creative prosecutor arguing that if the “war crime” is against a child in Iraq, then this exception applies.

3.  When federal, state, law or regulation require.  The prosecution would want to be sure the regulatory exception doesn’t swallow the rule.

4.  When the person believes the patient is a danger to self or others.  But this would not apply to past crimes, unless clearly intertwined with exception 5.  So for example the patient talks about how they did x, y, z, and how they will do it that way again first chance they get.

5.  If the disclosure clearly contemplates as future crime.

6. When necessary to protect military property, personnel, security, or military mission.

7.  When an accused first offers mental health evidence at trial.

8.  When constitutionally required.  This is a rule for the defense in cases in which the mental health of a witness is relevant to a case and production of records is necessary to ensure an accused’s constitutional rights.

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One response to “Major Hasan’s war crimes trial requests”

  1. Patient confidentiality in the military | Court-Martial Trial Practice says:

    […] Major Hasan’s war crimes trial requests, 17 November 2009. The issue has gained new attention with the recent mass shootings at Fort Hood that killed 13 and wounded 43. In the weeks before the rampage, the accused gunman, Maj. Nidal M. Hassan, an Army psychiatrist, told colleagues and Army lawyers that he wanted to report soldiers who had admitted in counseling sessions that they witnessed or committed war crimes in Iraq or Afghanistan. War crimes can include acts like torture, murder, sexual assault and cruel treatment. […]

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