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Major Hasan to Face Court Martial — What to Expect

First, stop hoping that officials and the media will speak out about the Fort Hood shooter's guilt. That creates grounds for an appeal.

by
Dan Miller

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November 13, 2009 - 8:49 am
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According to news accounts, of which there have been many, U.S. Army Major Nidal Malik Hasan is to be tried by general court martial on charges that he committed thirteen premeditated murders during his November 5 rampage at Fort Hood. The legal details are seeping out, slowly and sometimes erroneously. The case, as would be expected, has been widely covered by the media, and President Barack Obama has ordered a review of how U.S. intelligence agencies handled information they may have gathered about Hasan following questions about whether authorities may have missed warning signs about him.

With all due respect, this is not what President Obama should have said during his Fort Hood memorial charade, regardless of how much I agree with it:

We have allowed a traitor to gain a position of trust in your midst. We gave him high rank. We gave him the prerogatives and honors due to a member of the medical profession and an officer in the Armed Forces. And he used that position to kill the men and women we are remembering today. We who demand of you the courage to routinely risk your lives in the service of our nation did not ourselves have fortitude to expel a man from the service who by rights should have been gone because we feared criticism. We feared being accused of bigotry. We feared being accused of persecuting a religion. We feared the bad publicity that would come from recognizing the danger signals which have all too tragically culminated in this. It was out of fear that we forbore and men died.

Although I doubt that things said by President Obama will have much impact on how our military feels about the situation, they could have screwed up the military judicial process and provided grounds for appeal.

The legal process is moving far more rapidly than I had expected. Now is the time for restraint by the media and everyone else, lest Major Hasan be found to have been prejudiced by pretrial publicity. President Obama, a lawyer, should know about the deleterious impact of pretrial publicity, as should members of the Congress and even the media. That sort of thing can make it very difficult to empanel a board of officers, and now is not the time for showboating or gathering of political plums.

They should all sit back, calmly and quietly, and allow the military justice procedures to be followed, without providing a basis for a potentially successful appeal in the likely event that Major Hasan is convicted. The Fort Hood commanding general seems, thus far, to have done a good job of not exercising, or even seeming to exercise, command influence over the proceeding which he has apparently designated for general court martial. He should continue to keep as silent as possible, as his staff judge advocate has most likely advised him. This is a big case, and should it get hopelessly screwed up by any ill-advised comments from the commanding general or those on his staff, it could be very embarrassing and conceivably lead to his dismissal. It could also result in a new trial for Major Hasan.

There have been suggestions that Major Hasan may also be charged with the death of the unborn child of a pregnant victim who died during his rampage. The tragic death of an unborn child raises all sorts of legal and emotional questions, and it would be unwise to complicate an already complex legal proceeding by raising them. The penalty for fourteen murders is no greater than for thirteen, and the evidentiary and legal questions would be monumental. To the extent possible, the KISS (keep it simple, stupid) maxim should be followed.

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