Unfriendly Fire: The Fort Hood Shooter Trial

Steve Russell
June 12, 2013

Meanings vary when people repeat that things can be done “the right way, the wrong way, or the Army way.” The Army way may represent teamwork so instinctive that orders are not necessary. For most GIs, the Army way is the elevation of form over substance.

Today, I was gobsmacked by a particular elevation of form over substance being practiced before our eyes by the Army. The substance began on Nov. 5, 2009. My son was due back from his second tour in Iraq any day and the question in the family was whether he would be home for the holidays.

Where I live, Ft. Hood is covered by local media, so when Maj. Nidal Malik Hasan walked into the Soldier Readiness Processing Center and opened fire, I was probably paying attention before the firing stopped. Where was Paul? Iraq? Kuwait? Or was he in SRP, through which every soldier passes being deployed or coming home?

My son was not in SRP, but of those who were, 13 died. The victims were soldiers ranging in age from 21 to 56 and in rank from PFC to Lt. Colonel, as well as one civilian, 62 year old Michael Cahill, who died trying to stop the shooter. The youngest soldier killed, PFC Francheska Velez, was pregnant, and the fetus also died. Another 31 soldiers were wounded by gunfire, along with civilian police Sgt. Kimberly Munley, who was wounded while exchanging gunfire with the shooter.

The shooter was seriously wounded in the gunfight with civilian police. While waiting for him to recover so he could be put on trial for mass murder, we learned that Maj. Hasan admired the teachings of Anwar al-Awlaki, the imam who had presided at his father’s funeral. Hasan and al-Awlaki had substantial email communication before the killings at Ft. Hood.

In March 2010, al-Awlaki released a statement complaining that the Obama administration was failing to credit him properly, saying in part:

"Until this moment the administration is refusing to release the e-mails exchanged between myself and Nidal. And after the operation of our brother Umar Farouk the initial comments coming from the administration were looking the same—another attempt at covering up the truth. But Al Qaeda cut off Obama from deceiving the world again by issuing their statement claiming responsibility for the operation.”

The “brother” referred to was Umar Farouk Abdulmutallab, aka “the underwear bomber” because he was inspired by Al-Awlaki to attempt blowing up an airliner but succeeded only in lighting up his tidy whities.

A month later, to a chorus of criticism, Obama placed Al-Awaki on the CIA “kill list.”

The criticism fired up again when a CIA drone strike nailed him in September of 2011. When Al-Awaki was not directly counseling on how to kill Americans, he was editing Inspire, Al Qaeda’s English language organ where the Boston Marathon bombers allegedly read, “Make a Bomb in the Kitchen of Your Mom.”

At the time of the drone strike, Al-Awaki was hiding in the lawless areas of Yemen and a Yemeni court had issued a warrant for his arrest on terrorism charges. Obama is supposed to have violated his rights by putting him on the “kill list,” but the way I read the law, a violent felon who poses a continuing danger and cannot be arrested can be killed. But I digress.

After Hasan became physically able to come to court, the first military judge assigned to the case elevated form over function by engaging in a six-month battle with a dead man over shaving his full fundamentalist Muslim beard.

Nidal Hasan is a dead man rolling, since he can no longer walk as a result of his gunshot wounds. Apparently proud of his “accomplishment, “ he wished to plead guilty, but the Army won’t allow a guilty plea in a capital case and the prosecutors won’t waive the death penalty.

Since there is no question that Hasan did the shooting, the lawyers tasked with defending him must bring forward evidence of his mental state---a complete defense if he’s legally insane or a mitigating circumstance if he’s sane. Understandably, Hasan does not wish to litigate his mental state, so he fired his lawyers.

Today, Hasan informed the new and more goal-directed judge that he wished to raise “defense of third parties.” What third parties? Mullah Omar and the rest of the Taliban.

This will not fly because the soldiers murdered were not about to harm Mullah Omar, among many other reasons. Nidal Hasan is stretching for some way to put the Afghanistan war on trial, since the force he was allegedly defending against would have to be “unlawful.”

US soldiers are taught that they must refuse unlawful orders, and I remember no war in my lifetime when somebody did not refuse deployment for the purpose of making a court rule on the legality. They lost, but they got to make the argument. I don’t think you can raise that argument as a justification for shooting fellow soldiers.

I understand why we generally don’t let people plead guilty in a death penalty case. We want to see the evidence. We don’t want innocent persons executed even if they volunteer to save guilty persons. In the Hasan case, that can’t happen.

Not accepting his guilty plea turns the “trial” into a slow motion guilty plea, a political circus.

Meanwhile, the Army has categorized the shootings as “workplace violence” rather than terrorism. There are substantial benefits for the families of soldiers killed or wounded in combat. These benefits are not available to the soldiers who signed up to fight the “war on terror” and then got shot by a turncoat whose stated purpose was to protect the enemy from his fellow soldiers on the instructions of a radical imam who has repeatedly called killing Americans a religious duty.

Had my son been in the SRP that day, I would have to sue the Army for the good of my daughter in law and my grandchildren. Because he wasn’t, I’m just another opinion from the cheap seats when I say that respect for the law is the right way, but denying benefits to the victims’ families is the wrong way, and this entire process is making a mockery of the Army way.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.