Traumatic Brain Injuries and Insanity Under the UCMJ Regarding March 11, 2012 Shooting in Afghanistan

There is no doubt that the recent shooting in Afghanistan of 16 civilians, including many children, by a United States soldier was a tragic event that drastically impacts US-Afghani relations. Reports, however, indicate that the Army Staff Sergeant a

ccused of the shooting may have suffered a recent head wound. These reports add an interesting legal element to an already complicated issue. Should this information prove accurate, it raises the question of whether this soldier will have a valid diminished capacity or insanity defense in a military court based on his suffering a traumatic brain injury.

Under the Uniform Code of Military Justice, insanity is an affirmative defense, which states, “at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts.” 10 U.S.C. § 850a(a). This provision closely follows the insanity defense outlined in the Federal Criminal Code. 18 U.S.C. § 17.

This defense is common in conjunction with service members suffering from Post-Traumatic Stress Disorder (PTSD). However, because “the symptoms of PTSD do not always negate the accused’s volition,the illness rarely serves as a complete affirmative defense based on a lack of mental capacity.” Vanessa Baehr-Jones, A “Catch-22” for Mentally-Ill Military Defendants: Plea-Bargaining Away Mental Health Benefits, 204 Mil. L. Rev. 51, 57 (2010). Additionally, military courts have recognized a variety of other mental disorders that can qualify for the insanity defense. See United States v. Harvey, 66 M.J. 585, 587-88 (A.F. Ct. Crim. App. 2008). However, military case history is less clear in regards to traumatic brain injury and post-injury insanity.

Instead, it is necessary to look at the non-military judicial system in order garner an understanding of how traumatic brain injuries and the insanity defense align. The military courts have a history of turning to other courts for guidance, particularly in regards to insanity. See Harvey, 66 M.J. at 587-88 (addressing lack of military cases discussing unconscious acts such as sleep walking in regards to insanity defense and court’s examination of non-military decisions).

Recent cases have begun to address the impact of traumatic brain injuries on an insanity defense. The United States District Court of Colorado ruled that a defendant’s counsel had “…misrepresent[ed] the law in telling [the defendant] that a plea of not guilty by reason of insanity (NGRI) based on his traumatic brain injury was “not allowed by law.” Ansteensen v. Davis, 11-CV-01099-BNB, 2011 WL 6153107 (D. Colo. Dec. 9, 2011). Additionally, the Court of Appeals for the 8th Circuit ruled that traumatic brain injury could be one of multiple causes of mental disease or defect. United States v. Jensen, 639 F.3d 802, 806 (8th Cir. 2011).

Criminal cases are not the only areas where traumatic brain injuries have seen an increased presence. Football players at all levels have received increasing

diagnoses of serious brain damage and mental problems because of the many high impact collisions suffered during games. In fact, Kevin Guskiewicz, a researcher at the University of North Carolina at Chapel Hill, has documented a high correlation among retired NFL players “who have suffered multiple concussions in their careers and the early onset of neurodegenerative changes like depression and dementia following retirement from sport.” Additionally, there are an increasing number of lawsuits surrounding football related head injuries and subsequent mental and physical ailments.

Based on the quantity of new research and other court decisions, it is entirely feasible for a traumatic brain injury to substantiate an insanity defense. While it is still not clear whether this shooting in Afghanistan falls into that category, based on the sheer number of soldiers suffering from some combination of head injury and PTSD, this issue is bound to arise more frequently. It is essential that the military courts establish an internal precedent that addresses traumatic brain injuries in the context of insanity and diminished capacity. If this soldier did indeed suffer a recent head injury, this case may become that determinative military precedent. Furthermore, based on the recent trends in science and case law, it is likely that the head injury could serve as at least a partial defense.

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U.S. Student Admits to Aiding al-Qaeda

On the day before his trial, U.S. student Syed Hashmi reached a deal with prosecutors and pled guilty to “conspiring to provide support” to al-Qaeda. On behalf of his guilty plea, Hashmi had three additional charges brought against him in New York district court dropped. The student is accused of sending socks, ponchos and sleeping bags to al-Qaeda agents in Afghanistan. This case represents one more of the nearly 200 terror and terror-related cases that have been tried in New York since the September 11th attacks.

General McCrystal Removed as Commander in Afghanistan

In an article published in Rolling Stone, GEN Stanley McCrystal, former commander of all US and Nato forces in Afghanistan, made critical remarks of senior Obama administration officials.  Michael Hastings, the author of the article, spent a month with McCrystal and his staff, including a visit to an Irish Pub during extended stay over in Paris due to the Iceland volcano this summer, where “much of Team America [McCrystal’s self-named staff, a nod to the 2004 film Team America:  World Police] is completely shitfaced.”  The General or his staff are on the record calling the Vice President “Bite Me,” saying that McCrystal was “disappointed” after his first meeting with the President, accusing Jim Jones of being a “‘clown’ who remains ‘stuck in 1985,'” and the General complains of getting emails from Special Representative Holbrooke.  The article claims that McCrystal’s most strained relationship was with Ambassador Eikenberry, who McCrystal accused of “cover[ing] his flank for the history books.”  Duncan Boothby, a civilian on McCrystal’s PR staff who set up the interview, has already resigned.

This afternoon, President Obama announced that he had accepted McCrystal’s resignation as ISAF commander.  The President announced that he would nominate GEN David Petraeus to replace McCrystal in Afghanistan.  Mr. Obama stated that US policy in Afghanistan would not change as a result of the change in command.


US Forces Increase in Prelude to Kandahar

US Special Forces have increased their activity in Kandahar, the spiritual capital of the Taliban, in advance of what will be a larger push to take the city and implement a local, democratic government.  Kandahar is the largest city in southern Afghanistan, and the battle for the city is rapidly becoming the benchmark for the Obama Administration’s strategy in Afghanistan.  The success of the Obama Administration in the region will turn on whether US military force can aid local resistance efforts in winning over the populace while overcoming a distrust of foreign forces and lack of cooperation among local tribes.

The push for Kandahar has already been set in motion, and it will continue over a period of time with a gradual increase in military activity.  The offensive began in the area of Marja but will face continued obstacles in Kandahar, as it is a much larger and more complex urban area.  In response to the military activity in Marja, the Taliban have increased their attacks on moderate city officials and local spiritual leaders as a warning to tribal leaders for cooperating with the US offensive.  Indeed, US forces are dependent on the willful cooperation of these local tribal leaders to be the face of the offensive on the ground.  In fact, the majority of US involvement within Kandahar will be limited to covert Special Forces teams.  Conventional troops have begun operations outside of Kandahar in order to shape the offensive in a series of provinces that surround the city; however, the driving force within the city is designed to come from a local resistance.

As outlined, the Kandahar offensive is strikingly similar to the 2007 troop surge in Iraq which aimed to secure Baghdad and the Anbar province.  Not only has there been an increase in allied forces, but there has been heavy focus in gaining the trust of and allying together the local tribes in return for economic incentives to assist local development.  Concurrent with the increased military involvement, the strategy also includes Afghan-styled town hall meetings between government officials and local tribal leaders.  The aim of these meetings is to show the local tribal leaders how they would be better off without the Taliban Administration.  To read more on the strategy and its developments, click here.

Suspicious Symptoms in Afghan Schoolgirls: Taliban Suspected

In the past week, at least 88 girls and teachers have become ill in three different schools in Kunduz, northern Afghanistan. The girls described a strange smell in the classrooms. While officials have not identified the cause, they do think it was a deliberate attack , and local doctors have suggested the Taliban is the perpetrator. Last year, Afghan officials launched an investigation after 90 schoolgirls fell ill in Kapisa. Girls were not allowed to attend school while the Taliban was in power. The Taliban has denied involvement.

Read more here: CNN; BBC.