Hasan Verdict

08.27.13

The Army Was Right Not Labeling Hasan’s Killing as Terrorism

Of course Hasan was a terrorist but the Pentagon’s decision to label his killing “workplace violence” instead of terrorism was the right call, writes lawyer and former Marine Andrew Borene.

On Friday a military jury convicted Major Nidal Hasan on more than 40 counts of murder and attempted murder for his 2009 attack that killed 13 and injured 32 Americans at the Fort Hood Army base in Texas. Controversy has surrounded the trial due to both the unique awfulness of Hasan’s crime and because of the Pentagon’s decision to categorize the attack as workplace violence instead of terrorism. The controversy’s centerpiece has been the accusation that the terrorism charge was deliberately avoided out of political cowardice or a desire to deny benefits to the victims. But this claim misses a key point—trials are about justice not politics, and the Army used the best charge available to obtain an important conviction.

The verdict reopens an opportunity for national conversation about what constitutes terrorism and how we fight it, whether as a nation at war against a foreign enemy or as an ongoing law enforcement challenge to be managed with special investigative tools. The truth is that there are no definitive answers and either approach will be incomplete if used in isolation.

As a Marine veteran, I too have found it puzzling that the U.S. government did not uniformly designate the 2009 Fort Hood attacks as “terrorism” from the start (the attack does not even show up on the November 5 entry in the National Counterterrorism Center’s 2013 terrorism calendar). But as a lawyer, I see the government’s logic based on its consideration of precedential counterterrorism cases and the surest course for conviction. That said, we’re talking specifically about the criminal conviction. Hasan was clearly motivated by a jihadist ideology, but in fighting terrorism over the past decade, we have given the word terrorism several legal meanings apart from its general usage, and it is the narrower legal standards that count in court.

Hasan’s role as the shooter was never in doubt and his motivations were not hidden. Prior to his attack, the signs of his radicalization were clear. He had promoted a fundamentalist Islamist ideology in a presentation to his Army medical peers and had communicated with the radical cleric Anwar Al-Alawki, an American born Al Qaeda cleric who was killed by a U.S. drone strike in 2011. Hasan’s courtroom defense (which he mounted himself despite the judge’s admonition that he allow an Army JAG to defend him), hinged not on whether he was the shooter but on his self-professed belief that his fellow soldiers deserved to be killed.

Had the Army pursued a terrorism charge in another federal court, they would have effectively granted Hasan’s attempt to make that courtroom a much larger stage for his ideology and martyrdom—instead, the prosecution kept the trial focused and secured an easy conviction. So, where’s the problem?

Trials are about justice not politics. The Army used the best charge available to obtain a conviction.

Several weeks ago, National Review magazine started an online petition calling on the government to designate Hasan’s attack an act of war against the United States.

To: Chuck Hagel, Secretary of Defense, U.S. Department of Defense

The Administration has designated the Ft. Hood massacre as workplace violence, and not what it was: an Act of Terror. By not designating this event as such an act, it disrespects the lives of the 13 who lost their lives that day, and dozens more who were injured and those helped their fellow soldiers.

Furthermore, Nidal Hasan will not be tried as an enemy combatant, but instead will be court-martialed. 

Finally, without an Act of Terror designation, those wounded in defense of our nation will not receive a Purple Heart.

This is outrageous and I call on you to change the official designation now before the trial for Nidal Hasan proceeds any further.

The petition is an emotionally charged misreading of the situation that presents what was actually a procedural, legal challenge as if it were an ideological campaign led by the government. First and foremost, prosecutors did not pursue “Terrorism” or “Act of Terror” because Courts-Martial under the Uniform Code of Military Justice (UCMJ) (PDF) do not currently include such a charge. Secondly, acquiescence to the demand that Hasan be deemed an “enemy combatant” would have created far more legal confusion, making the prosecution’s case more difficult to prove.

We must be sensitive to those victims and their families who have called for the terrorism charge, because without the recognition of terrorism they are denied both material benefits and emotional resolution. Nonetheless, the court’s job is not to yield to victims’ wishes, however sympathetic they are, but to follow the dictates of due process and justice.

Consider that if Hasan had been labeled as an “enemy combatant”, the next important legal determination would have to be whether he was protected with special privileges under the lex specialis principle of International Humanitarian Law—or whether he should have been treated instead as an “unprivileged enemy belligerent” under some form of military commissions derived from the 2001 Authorization for the Use of Military Force (AUMF). The AUMF is the closest thing our nation has to any declaration of war at present, and it is an imperfect and aging authority for fighting the many imitators of Al Qaeda, whether at home or abroad. A quick review of the past decade’s crippling challenges with detaining, holding and transferring Guantanamo Bay’s current detainees alone would have to deter such a complicated “enemy combatant” prosecution under AUMF.

The National Review’s demand also speciously assumes that a court would necessarily determine the AUMF applies to Hasan. The AUMF is short and clear, it specifically authorizes that:

“[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Yes, Hasan drew inspiration from the radical Islamist cleric Anwar al-Awlaki; however, asserting that Hasan was connected to the 9/11 attacks is a bridge too far.  No matter how emotionally satisfying it might be for us to condemn Hasan with words, a hard criminal conviction with a potential death sentence is much more important for effective counterterrorism—and a conviction that upholds the law is our nation’s first duty to the victims, survivors and families devastated by the attack.

Additionally, mechanisms remain for the Pentagon or the Secretary of the Army to more clearly articulate how the Hasan attack is viewed as an insider attack by a homegrown terrorist with international terrorism as its goal, ensuring the victims and the heroes of that day receive proper remembrance, recognition and compensation. In 2001, Secretary of Defense Donald Rumsfeld made a similar decision for the military victims of 9/11, and a service branch secretary has the ability to determine Purple Heart eligibility according to this rule:

After 28 March 1973, as the 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 Army, or jointly by the Secretaries of the separate armed services concerned if persons from more than one service are wounded in the attack.

Though the Hasan trial itself may have lacked the gratifying emotional drama of global political theater, our nation of laws must move more slowly than the loosely bound  tyranny envisioned by many of our enemies. We should not want it any other way.

In the end, we, as a nation, show ourselves to respect the law and to move in the general direction of what is right and good. Nidal Hasan has also shown himself to the world for what he is—a murderous, deranged, religious zealot without any respect for human life. Whether executed or not, he will now spend the remainder of his life in prison away from cameras and further attention, ensuring his rightful place as dust in history’s trash bin.