US Army Spc. Marc Hall, jailed for writing a song about the personal impact of being forced to remain in the military, including lyrics the Army claims are veiled threats of violence, will face a military trial in Iraq instead of in the US. Attorneys for Hall - whose current whereabouts remain unknown - say this development threatens Hall's right to a public trial.
A petition filed in the US District Court of the Southern District of Georgia to stop the Army from sending Hall to Iraq for a court-martial was denied on Wednesday.
It is believed that Hall is still incarcerated in the Liberty County Jail in Hinesville, Georgia, but it is possible that Hall could already be in Iraq. Neither Hall's attorneys, nor even the military prosecutor, know of Hall's whereabouts.
"Not just the Constitution, but the rules for courts-martial, prohibit prosecutors from holding a court-martial in a combat zone as a pretext for depriving an accused of a public trial, counsel of his choice and necessary witnesses," David Gespass, Hall's civilian attorney and the president of the National Lawyers Guild, said of the Army's decision, "Whatever the Army may claim, that is exactly what the Army is doing to Marc."
On December 17, Hall was charged with five specifications in violation of Article 134 of the Uniform Code of Military Conduct, two of those for wrongfully communicating a threat based on song lyrics. Article 134 is the vague rule that outlaws anything "to the prejudice of good order and discipline."
Lyrics included Hall saying he may "go Fort Hood," a reference to the mass shooting at Fort Hood on November 5, which prosecutors for the Army claim is a threat of violence.
"[SPC Hall] alleges violation of his Sixth Amendment right to a public trial, as well as the First Amendment right of the public and media to attend the trial and report on it," Gespass said of the brief filed in federal court, "He has alleged violation of his Sixth Amendment right to counsel of his choice and of the right to call witnesses in his favor É"
Jeff Paterson, project director and founder of Courage to Resist, an Oakland, California-based organization that supports military objectors, declared of Hall's case, in a supporting exhibit filed with the court:
"Among the numerous issues of significant public debate involved in SPC Hall's case include: The military's 'Stop-loss' program, the limits on artistic expression by Soldiers, the treatment of Soldiers with post-traumatic stress disorder (PTSD) while on active duty, and opposition to the continuing Iraq occupation from within the military. We are concerned that the Army appears to be planning to conduct the court-martial in virtual secrecy."
When Truthout spoke with Gespass on Thursday, he did not know if Hall had been shipped to Iraq.
"This is bizarre," Gespass told Truthout, "This morning I spoke with his JAG lawyer to find out when he leaves. Not only did he not know, but the prosecutor didn't know because apparently Marc is such a national security threat that they can't reveal anything about when he's leaving. It's beyond belief."
In July 2009, Hall produced and distributed an angry hip-hop song after learning he would not be allowed to leave active duty due to the Army's "stop-loss" policy.
Stop-loss is a policy that allows the Army to keep soldiers active beyond the end of their signed contracts. According to the Pentagon, more than 120,000 soldiers have been affected by stop-loss since 2001, and currently 13,000 soldiers are serving under stop-loss orders, despite public pledges by President Barack Obama to phase out the policy.
Hall continued to serve with his unit for the next four months, undergoing command and mental health counseling as requested.
"I explained to [my first sergeant] that the hardcore rap song was a free expression of how people feel about the Army and its stop-loss policy," Hall said. "I explained that the song was neither a physical threat nor any threat whatsoever. I told him it was just hip-hop."
Attorney Jim Klimanski, a civilian military lawyer and member of the National Lawyers Guild and the Military Law Task Force, has been following Hall's trial closely.
"It's a song, and he puts it out to the public," Klimanski told Truthout. "We're not talking about a Major Hassan who is quietly plotting violence ... this is political hyperbole. This is his rant on stop-loss. It's political speech."
On February 1, 2010, Hall formally applied for discharge from the Army as a conscientious objector. His application explains the transformation he went through during his year-long deployment to Iraq.
The Army's attempts to now deploy him violate AR 600-8-105 (Military Orders) and the Army's Conscientious Objector regulations, according to Hall's lawyers.
On February 3, Fort Stewart, Georgia, officials confirmed that the Army would transfer Hall to Iraq for court-martial "within a few days." The Army's press release stated: "The jurisdiction transfer ensures a full and fair trial for both SPC Hall and the United States."
Gespass disagrees and questions the motives of the Army.
"What strikes me is the question of the right to have a public trial," Gespass told Truthout, "The more the Army tries to avoid the public trial, the more suspicious I am of their motives. Their position is, "Well, people report on Iraq all the time," but the fact is the people most interested in reporting on this case don't have the wherewithal to get there É not to mention his supporters and friends."
If the Army continues forward with shipping Hall to Iraq for his court martial, he will likely be tried in Baghdad, where violence and instability continue to worsen in the lead-up to national elections scheduled for March 7.
"The point of a public trial is because it prevents 'Star Chamber' proceedings," Gespass added. "The more they resist having Hall's trial out in the open and in the sunshine, the more suspicious I am of serious reasons of why they don't want that to happen. I'm suspicious enough of the government that I fear some nefarious reasons for their doing this."
A "Star Chamber" references an English court of law from the 1700's. The court sessions were held in secret, with no indictments, no right of appeal, no juries and no witnesses. It rapidly evolved into a political weapon that symbolized the abuse of power by the English monarchy.
"The critical question is the resistance of the Army to this trial being held in the sunlight, and why they feel the need to do that," Gespass said.
According to Gespass, the Army could have easily tried Hall before his unit was deployed to Iraq. Instead, the Army chose to delay its decision, creating the current situation where Hall will be tried in Baghdad, likely without a civilian attorney nor any of his supporters and friends present,.
"I think what they want is to get him to the point of having him admit something, after having him in jail for several months," Gespass said of what he thinks the goal of the military is with this trial ... "if they can get an agreement to have him serve six months and then released, without having to have a trial to try to prove their vague allegations."
Klimanski commented with sardonic humor on the Army's decision to ship Hall to Iraq for his trial.
"I understand that they believe keeping him at Fort Stewart would cause the esprit de corps of the military to collapse," Klimanski told Truthout, "I think they would want to put Hall under seal because it would be so easy to disarm the military by complaining."
Klimanski added, "The Army's position shows how fearful they are of the enlisted people. Leadership is afraid that if soldiers knew what they were doing and why they were doing it, they would likely all want to go home. They are so afraid of someone like Marc Hall they would ship him off to Iraq for the court-martial. That is very telling."
Klimanski explained the military justice system's machinations with Hall's case.
"The problem with the case is the Army never referred the case to trial, so there's been no military judge appointed, so the defense couldn't do anything," he said. "The defense couldn't do anything because there was nobody to go to. The military justice system allows them to throw Hall in jail and let him sit there ... and let the clock run out. You can file an Article 138 complaint, but you're filing this to the people who put him in jail É so they can punish him without any due process."
Klimanski concluded that he believes the Army's handling of Hall's case illuminates the desperate situation the military is in with two ongoing occupations.
"This is indicative that the Army is recognizing it is falling apart. The Army is reaching the end of its tether. As the war in Afghanistan continues, the Army will find itself in an increasingly untenable position."
Paterson is mystified by the Army's handling of Hall's situation.
"Marc Hall's song is a plea for help, and instead he is going to be court-martialed in Iraq, and I think that's outrageous."
Paterson is disappointed with the federal court's decision to deny their arguments, but said he is not going to stop fighting for Hall.
"This case was always going to be won or lost in the realm of public opinion, so in that light, it's not going to be easy, but we're going to take it there," Paterson told Truthout. "Marc is being moved to Iraq for a secret court-martial, and I'm going to do what I can to attend. I'm going to try to force the military to take me there."
Paterson said he plans to encourage supporters of Hall, and journalists, to accompany him to Iraq.
"If the military is arguing that they aren't trying to do this secretly, then it should be their burden to ensure all the defense witnesses and advocates can attend," Paterson added, "The military has the resources to make that happen, so they are obliged to do so. There are a lot of military flights to and from Iraq from the States these days."