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Military prepares for long, legal battle in Fort Hood case
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(CBS News composite)
Once Maj NIDAL HASAN recovers --as it appears he will-- his prosecutors will face a long and uncertain legal battle as they seek to convict him for allegedly killing and wounding dozens of fellow soldiers.
Hasan will be tried in a military court.
That's significant because it reinforces the view of investigators that Hasan's rampage was not part of a terrorist plot but that he acted alone.
What's the difference between a military and a civilian court?
A military court martial tends to be more lenient in some respects than civilian trials and less so in others. On the one hand, military tribunals seldom give out the death penalty; the military hasn't actually executed a service member since 1961. On the other hand, military legal experts say insanity is harder to prove in military courts than civilian ones. Post-traumatic stress disorder alone "does not equate to insanity"; defense attorneys have to prove that a client "cannot comprehend the wrongfulness of his actions" for an insanity defense to stick.
Another question concerns the appropriate place to convene a trial. It's unlikely that Hasan could get a fair trial at Fort Hood. Indeed, with his base commander and the nation's commander-in-chief having publicly identified Hasan as the shooter, Hasan's lawyers will likely argue that he can't get a fair trial anywhere.
A fair number of people want to argue that Hasan is a terrorist and he was part of some sort of terrorist plot.
Part of our problem here is syntax: We toss around the word terrorist at the drop of a hat and all too often only when it involves Muslims. The FBI makes clear "there is no single, universally accepted, definition of terrorism," but defines terrorism as:
The unlawful use of force or violence against persons or property to intimidate or coerce a Government, the civilian population, or any segment thereof, in furtherance of political or social objectives.
The Bureau further distinguishes between domestic and international terrorism but in each definition, the term "intimidate or coerce" is present. There is no evidence that Major Hasan was trying to intimidate or coerce anyone.
Regardless, any debate in the public square over semantics has little bearing in the one place it counts: A court of law. Were there sufficient evidence Major Hasan was part of some broad terrorist plot, he'd have been prosecuted in a federal criminal court and charged as a terrorist. He wasn't. Everything Major Hasan has done, he's done of his own volition. There is absolutely no evidence Major Hasan did anything at the behest of al-Qaeda operatives did, or that he was given directives by al-Qaeda operatives. We don't even know what it means that he "reached out to al-Qaeda." We don't know if al-Qaeda reached out to him. These are questions investigators have pursued and at this point in time they are satisfied that this is a criminal matter to be handled by JAG, not a federally appointed prosecutor from the United States Justice Department.
Could that change? Sure, and should such evidence surface, civilian courts may yet have a crack at him, but there's none now.
Congressional leaders are being briefed on that investigation. The Senate Homeland Security Committee will investigate the matter starting next week.
Uncomfortable questions are going to surface, all of them relating to military policy and national security:
1) Unless and until "terrorism" evidence surfaces, how does a disenfranchised, potentially unstable and possibly mentally ill person progress so far up in the ranks of the Army, let alone be in a position to evaluate and treat other people's mental health issues?
2) If any ties to terrorism surface, how much did FBI investigators know and should they have alerted military authorities sooner? Or did they feel that if they had tipped their hand sooner, they would've compromised potential efforts to catch some bigger fish?
3) Would the FBI have notified the military sooner had they known of Major Hasan's potential instability? Would the military have informed the FBI of Hasan's possible mental condition had they known six months ago that the FBI was monitoring Hasan's behavior? Did they notify the military? When? Was each satisfied with the other's data.
4) Was what happened last week at Fort Hood the result of two government institutions not talking to one another? Should they have been? Were they?
5) If the Fort Hood tragedy turns out to be a case of a mentally ill individual who lost control and a person about whom no one in his chain of command did anything beforehand, isn't that an issue the military needs to address?
6) If it's possible the shootings could have been averted had the FBI kept military officials in the loop about their investigation, isn't that an issue our intelligence officials need to address?
7) Are there too many intelligence agencies and not enough cooperation between them? Didn't we try to address that problem after 9/11?
One suggestion: How about immediately booting out --and investigating-- any soldier that tries to contact al-Qaeda? Brian Ross of ABC News reported that some intelligence officials were aware months ago that Nidal was trying to contact al-Qaeda. Why wasn't he booted immediately? Was the military just trying to be "tolerant" and not offend anyone?
A couple of things before answering that question.
Brian Ross has been criticized more than once for stooping stooping to sensationalism and for being thunderously wrong. And then there are some who find Brian Ross useful when it affirms their view, and not so useful when it doesn't.
He's been sloppy in his reporting on Fort Hood. An ABC's evening news, he told Charlie Gibson that Hasan had converted to Islam; not so. He said Hasan attended Damascus University in Syria; he got that confused with another Nidal Malik Hasan (it's a common name).
Ross reported that Hasan had e-mail contact with a radical Muslim cleric (Anwar al-Awlaki) who preached at a mosque in Falls Church, Va., before leaving for Yemen in 2002 (where he now resides).
The FBI decided the e-mail contacts were benign:
Despite the contact between the two men, the FBI did not investigate Hasan further in the Awlaki case because "the content of those communications was consistent with research being conducted by Maj. Hasan in his position as a psychiatrist at the Walter Reed Medical Center," in Washington, D.C., where he counseled soldiers returning home from combat or heading overseas, the FBI website said.The officials said that the tenor of the e-mails was benign and was consistent with a research project on post-traumatic stress disorders that was sanctioned by the medical center. Because the e-mails contained nothing derogatory, the task force concluded that Hasan was not involved in terrorist activities or terrorist planning, the FBI said.
FBI Email Threat Level Chart
Army Chief of Staff George Casey vows that the Army will take a very hard look at its behavior to see what was missed here. Of course. Likewise, FBI Director Robert Mueller has ordered an internal inquiry to see whether the Bureau mishandled worrisome information.
That's exactly what they need to do. They need to take a very hard look to see what they missed, and if they missed something, they need to know what it was and how they missed it.
But every time one of these things occurs the same thing happens. Take the shooting at Virginia Tech. What did we hear: The student sought advice and he saw psychologists and teachers, that he seemed odd and distant, and nobody said anything to anyone about his odd behavior.
When someone commits a heinous act such as Major Hasan is alleged to have done, or in any mass shootings as we've seen over the years, when you look back on it through the prism of the shootings, of course, anything and everything that has a bearing on that kind of behavior will loom large.
But if there were no shootings and you looked at these very same things, they might appear as benign.
Let's not lose sight of one important thing: The Army Chief of Staff is right. There needs to be a thorough analysis and it has to be an independent analysis, no CYA there. We need to know what happened and whether the ball got dropped, and we have to fess up honestly.
But let's not forget that we are citizens of the United States of America in which we believe you are entitled to free speech, free press, freedom of assembly and freedom of worship. When you exercise those rights, we do not generally think ill of you because you do.
An individual might look a scant at something someone says or if someone begins to display an over-zealousness about their particular politics or religion, whatever their politics or belief system might be. Someone might say you're getting a little out of hand, but this is America. We don't generally second guess what people say or think or do unless laws are broken.
It may be disturbing to some to read an observation that Major Hasan once attended a mosque that had also been attended by at least two of the 9/11 hijackers. That's the kind of thing that gets said in a discussion like this that has no meaning yet.
So what? He also went to Virginia Tech; should that mean something? Maybe he wore sneakers the day he shot up Fort Hood. You might be wearing sneakers right now. Does that mean you're likely to shoot a bunch of people tonight?
Of course not.
So we have to really be careful because in retrospect, these things all look cut and dried. Sure we should have noticed this and caught that, and why didn't anyone see that he might be a terrorist when he kept proselytizing an extremist view of Islam. How'd we miss that?
Because when you see and hear people say these things along the way, you are not thinking of them as mass murderers. You're thinking of them as people who might be interesting, eccentric, over the top, kooky, weird, another right wing blowhard, another left wing appeaser, another religious wacko. It's only after someone commits the murders that suddenly people demand to know how we missed all the obvious signs.
We ought to be careful before we say we blew it again. I don't know that there's evidence of that. Let's wait till we see the evidence. Then we can determine whether there's evidence of that.
That's difficult for a lot of people --particularly those with an ax to grind ready to string up a rope and demand a lynching-- but sorry, here's the deal: This case has made its first trek through the initial investigation process and is now beginning its journey through the court system, in this case, a military court. Any ideological ranting, calls for Ox Bow justice, political demagoguery or blathering about terrorism this or Muslim that is nothing more than a lot of smoke-filled coffeehouse crap. It's not only careless, it's un-American.
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