The Legal Issues Involved in the Fort Hood Purple Heart Medal Discussions

November 19th, 2009 by MOTHAX

Let The American Legion know what you think in the comments. First, two important caveats that need to be clear before we proceed. 1) The American Legion does not have a position on the awarding of the Purple Heart Medal to the wounded and dead of the Fort Hood attacks. I’m going to be as neutral in discussing the facts and legal issues involved as much as humanly possible, but should any of my biases intrude in this largely objective discussion, they are mine and mine alone. 2) I am not a lawyer, I do not play one on TV, and I did not sleep in a Holiday Inn Express last night. While I have graduated from a law school, I have not as yet taken that little quiz offered, passage of which allows you to pay an exorbitant fee each year to be a member of a bar which serves no Guinness. So, if you are looking for legal advice, I advise you to contact someone who knows the law, and not this blogger. You wouldn’t contact an astronomer to work on your car, so don’t contact me if you are incarcerated. Now, let’s begin with the “facts” as we currently perceive them, which is not to say they are facts, anymore so than the earlier "facts" that the shooter(s) was/were three people, one of whom had assumed room temperature on account of severe lead poisoning. On November 5th at roughly 1:30 in the afternoon, Major Nidal Malik Hasan is alleged to have entered the Soldier Readiness Processing (SRP) Station on Ft Hood just outside Killeen, Texas, and opened fire on soldiers and civilians present. 13 people were killed (one of which was pregnant) and at least 30 people were injured. It is further alleged that before he opened fire Major Hasan jumped on a desk and yelled “Allahu Akbar!” which means “God is Good.” Subsequent reporting from various news sources (by way of leaks in the investigation) suggests that Major Hasan had contacted Anwar al-Awlaki, a Muslim imam who had previously been linked to several of the 9/11 conspirators. Additionally, colleagues of Hasan’s have gone public with various allegations that he uttered words that might be construed as extremist in nature in forums both public and private. Now, some of those facts may be debatable, but for the purposes of our discussion, let us accept for now their validity. Representative John Carter of Texas represents the district which Fort Hood is located in. He has introduced a bill which among other things calls for:

For purposes of the laws specified below, a member of the Armed Forces or civilian employee of the Department of Defense who was killed or wounded by gunfire in the shootings that occurred at Fort Hood, Texas, on November 5, 2009, shall be deemed— (1) in the case of a member, to have been killed or wounded in a combat zone as the result of an act of an enemy of the United States; and (2) in the case of a civilian employee of the Department of Defense, to have been killed or wounded while serving with the Armed Forces in a contingency operation or to have been killed or wounded in a terrorist attack. Covered Laws 1) Would make the military service members injured by gunfire on November 5, 2009 eligible for the award of the Purple Heart (Executive Order 11016).

There are other financial issues involved, but to avoid too much confusion, let’s just stick to this. Now, for those who don’t know, Executive Order 11016 setting forth the criteria for the Purple Heart contains a subsection which authorizes the award:

(6) After 28 March 1973, as a result of an international terrorist attack against the United States or a foreign nation friendly to the United States, recognized as such an attack by the Secretary of the Army, or jointly by the Secretaries of the separate armed Services concerned if persons from more than one service are wounded in the attack.

So, that is the appropriate place to start. Now, most people probably wonder why a bill to award the purple heart is needed. Fair enough. Two problems arise. First, was this event an “international terrorist attack”? The more important problem though is that in order for the award to be authorized, the SecArmy needs to “recognize” this as an “terrorist attack.” Major Hasan has been charged in a military court with 13 counts of murder. The possible penalty for this includes corporal punishment. (The Death Penalty.) It is generally accepted that Hasan will be convicted, and the real question that exists now is whether the jury will give him the death penalty. If the SecArmy were to declare this a terrorist attack, the prerequisite for the Purple Heart award, then Major Hasan would have grounds to appeal any conviction by virtue of what is known as “unlawful command influence.” As one military law website aptly stated:

Unlawful Command Influence (UCI) has frequently been called the “mortal enemy of military justice.” UCI occurs when senior personnel, wittingly or unwittingly, have acted to influence court members, witnesses, or others participating in military justice cases. Such unlawful influence not only jeopardizes the validity of the judicial process, it undermines the morale of military members, their respect for the chain of command, and public confidence in the military.

That leaves us in a bit of a quandary. In order to award the Purple Heart it must be deemed terrorism, and yet deeming it terrorism would jeopardize the trial. Put another way, the only person who can speak up also happens to be the one person who can not speak. You see the problem inherent in this. Now, this is not the first instance of such an attack taking place. On 23 March, 2003, Sgt Asan Akbar rolled a grenade into an officer tent, and in the ensuing chaos, opened up with his rifle on those fleeing. On 21 April 2005 Akbar was found guilty of two counts of premeditated murder (RIP: CPT. Christopher Seifert, 27, US Army, and Air Force Maj. Gregory Stone, 40) and subsequently sentenced to die by lethal injection. That case is currently on appeal. Now, there are several things that might happen, and I will list them here for you. 1) No award of the purple heart is issued to the wounded or those killed. 2) No award of the purple heart is issued to the wounded or those killed, however there is financial remuneration equal to what the soldiers and civilians would have received had they received the purple heart; 3) Representative Carter’s bill becomes a law, and the soldiers and civilians receive both the Purple Hearts and the money they are entitled to, potentially setting a precedent by which the Congress provides exceptions to the current formulation of the awards process; 4) The mechanism for determining whether an attack is in fact related to terrorism is changed from resting with SecArmy to one outside the chain of command, whether it be with Congress or some other entity; 5) The SecArmy just says screw it and awards the medals, and worries about the legal machinations later. Now, I am sure there are others I haven’t listed here, and please feel free to enumerate them, but this is what I see as the most likely conclusions. As I said, The American Legion has no position at this time. It is a more difficult situation than appears at first blush. Some think that TAL should embrace the position that these men were killed as a direct result of the Global War of Terror, and that common sense and justice demand that they be awarded the Purple Hearts, despite there being some potential legal pitfalls and problems stemming from this precedent. Others have acknowledged that while these troops certain should get all the benefits, it is a scary proposition to allow that determination to be made by Congress. After all, the military is apolitical, while Congress might use their discretion to award such things in the future based on things which are not entirely altruistic in nature. For instance, do we want Congressmen and Senators dictating who gets awards like the Medal of Honor? There are a host of positions in between as well. I haven’t run into anyone yet who doesn’t think these guys are entitled to everything we can get for them. The sticking point seems to be the precedent that would be set, and whether to in any way alter a process that has worked well up until now. I have also heard told of some who do not believe that soldiers injured somewhere other than a battlefield should receive the Purple Heart. I would like it noted, however, that not a single person I have talked to believes this to be the case, but perhaps someone would like the unenviable task of arguing that point. So, as The American Legion entertains discussion internally as to what our position will be, the National Commander and National Adjutant have authorized me to make this post, and give you, our Legionnaires and interested parties, the opportunity to speak your mind. Now, before I set you free to comment, a few points. The right to speak freely does not necessarily imply a right to be heard. By that I mean if I see any comments outside the scope of this discussion which are improper in some way, you may find them relegated to the dustbin of cyberspace. For instance, no President is involved in this discussion. Anyone saying we should “Try Bush for War Crimes First!” or “Our President is a Muslim and not an American!” will be deleted. Let’s stick to the facts of the case. Also, religion is not a discussion item either. This is legal and political, not religious. So please do not engage in any conversation that might be construed as racial, bigoted or prejudicial. I know you all are better than that, but it needed to be said. So, I grant you the floor, what say you My Readers? While you are at it, go vote on the Big Q today which deals with this issue.

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Joe Jascur (not verified)

November 25, 2009 - 3:31pm

The Legal Issues Involved in the Fort Hood Purple Heart Medal Discussions

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