Labeling Ft Hood, Terrorism or Murder?
The title may actually be somewhat misleading to what I want to write about, but it was all I could come up with. Let's start with this article from The Washington Times.
[T]he Pentagon now says it will not reclassify the Fort Hood shootings as a terrorist attack over concern about biasing the case against the gunman — an argument that is getting a mixed review from legal specialists.
Late Friday, after 160 victims of the Fort Hood, Texas, shooting called on the Pentagon to label the attack terrorism instead of workplace violence as it has for the past three years, the Department of Defense said it would not reclassify the attack.
In rejecting the victims outcry, Defense Secretary Leon E. Panetta’s spokesman cited concern that having the government weigh in could bias the case against Army Maj. Nidal Malik Hasan, 42, who is awaiting trial and faces the death penalty if convicted.
When asked how Mr. Panetta plans to respond to the victims, his spokesman took a day and a half to respond, eventually emailing a statement Friday night.
“The Department of Defense is committed to the integrity of the ongoing court martial proceedings of Major Nadal Hassan and for that reason will not further characterize, at this time, the incident that occurred at Fort Hood on November 5, 2009,” Pentagon spokesman George Little said in the statement. “Major Hassan has been charged with 13 counts of premeditated murder, and 32 counts of attempted murder. As with all pending UCMJ matters, the accused is innocent until proven guilty.”
Now, I've always felt the attack was Terrorism related, BUT, and this is a huge BUT, I actually think the Pentagon is handling this correctly, which puts me in a pretty solid minority. Espousing the position that they are wrong however, is a lawyer I think very highly of. I just happen to disagree with him this time, but Mark Zaid is generally right on most everything:
“I find that a little difficult to believe,” he said. “If that was the case, than how in the world would the Pentagon prosecute any terrorism case? There is a process in any case — whether military or civilian — to deal with any potential bias of a juror. It’s a fundamental part of the judicial system to ensure that juries are impartial.”
“There’s clearly going to be terrorist angles in the process,” he said. “And calling it terror is not going to change the nature of the incident or the [jurors’] knowledge about it.”
I don't know if his comments were taken out of context, if this is exactly what he said or anything else, but the comments don't make sense to me. Now, I feel highly enough of Mr Zaid that I am open to admitting I am wrong, but the fairly obvious response to his initial query is that Hasan isn't up on any Terrorism related charges. In a Terrorism case, there is something in the fact pattern that is like "aiding and abetting known terrorists" or "providing material benefits to terrorists" or something of that nature. In terms of murder, to me that is generally terroristic in one way or another, but not entirely germane.
David Glazier, a professor at Loyola Law School in Los Angeles apparently agrees with me:
Labeling the shootings workplace violence instead of terrorism, he said, “makes perfect sense” because it’s a simple cut-and-dried murder case without getting into the complexities of the military’s law of war and whether it’s appropriate to consider Maj. Hasan an unlawful combatant.
“The Department of Defense is being cautious but correct in proceeding with its case that this is an ordinary service member who is being prosecuted for a very serious crime,” he said. “A military individual pulls out a gun and shoots. It’s not necessary to get into motivation to prove that basic offense.”
To understand why calling this "terrorism" might jeopardize the case, you have to know a little about military law. I actually adressed the relevant issues way back in November of 2009 in the context of purple hearts for the victims. As I said then:
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.
So, the basic reason the Pentagon isn't declaring this terrorism deals not with politics, as many on the internet seem to claim, and has more to do with legal issues. Just imagine the heat that would come down if Hasan was found guilty and sentenced to death, only to have this overturned on appeal because the Pentagon was deemed to unlawfully prejudice the jury by asserting that this was terrorism. Because small problems like that become bug during appeals.
Again, I think this was Terrorism, but in labeling it that, the Pentagon would create a bunch of immediate problems. It's easier from the standpoint of the Pentagon to wait until after the conviction, and then declare it terroristic. You can't be accused of unlawfully influencing something that has already transpired, so there won't be the problems after the judgment has already been reached.
Then again, Mr Zaid disagrees with me, and he's generally the smartest guy in the room, so please feel free to disagree with me.