Online Newshour reports:
And it doesn’t have to be all 12 members voting him guilty. Two-thirds to convict is enough. And it does have to be unanimous to give him the death penalty.
In a death penalty case the members have to be unanimous on a finding of guilty. The unanimity requirement different than for any other special and general court-martial.
There is a great deal of pontificating on both sides of the aisle about Major Hasan, Fort Hood, and intelligence failures. Here is a rational discussion and perspective.
In last week’s global security and intelligence report, we discussed the recent call by the leader of al Qaeda in the Arabian Peninsula, Nasir al-Wahayshi, for jihadists to conduct simple attacks against a variety of targets in the Muslim world and the West. We also noted how it is relatively simple to conduct such attacks against soft targets using improvised explosive devices, guns or even knives and clubs.
The next day, a lone gunman, U.S. Army Maj. Nidal Malik Hasan, opened fire on a group of soldiers at Fort Hood, Texas.
An official news release from Fort Hood PAO states that:
The charges filed against Hasan include 13 specifications of premeditated murder, in violation of Article 118, Uniform Code of Military Justice, (emphasis added).
hat-tip to CAAFLog. The media has been speculating all afternoon based on a CID news conference. I would not imagine CID to be a spokesperson for the Article 32, UCMJ, appointing authority, and if it’s CID, I’d want to see it in writing. One suspects CID is wanting a little face time with the public. CID investigates, they don’t decide what charges will be preferred.
Here’s the question, I think.
Military.com, as with many other media outlets are reporting:
Nidal Malik Hasan’s overly zealous religious views and strange behavior worried the doctors overseeing his medical training, but they saw no evidence that he was violent or a threat.
Yes, of course John Galligan is getting that question. We get it all the time. How could you represent so-and-so at court-martial? Here is MichaelTomasky’sBlog.
Banner CNN day: Wolf Blitzer apparently really distinguished himself yesterday by asking Nidal Hasan’s military lawyer, retired Colonel John Galligan, how on earth he could do such a thing[?]
Many in the legal community are critical of President Obama, who as the Commander-in-Chief may have “screwed up” the prosecution of Major Hasan for his acts at Fort Hood.
The Wall Street Journal reports:
The only good news out of the Fort Hood massacre is that U.S. electronic surveillance technology was able to pick up Major Hasan’s phone calls to an al Qaeda-loving imam in Yemen. The bad news is the people and agencies listening to Hasan didn’t know what to do about it. Other than nothing.
The other bad news may be that a number of politicians, particularly Hoekstra, having been disclosing this information to the public. No wonder the CIA and other agencies are suspicious of giving “delicate” shall we say information to Congress.
If Major Hasan raises an insanity defense for his acts at Fort Hood, how might the defense actually work if at all.
Presumably he will present a combination of witnesses and documents. The media is reporting that prior to reporting to Fort Hood Major Hasan had “problems” so there will be witnesses to odd or strange behavior; there will be witnesses to the nature of his work and whether he could suffer vicarious traumatization; and there will be other witnesses to how he behaved. Then there may well be psychological testimony.
Here is a link to the Digest for the Court of Appeals for the Armed Forces (CAAF): “Core Criminal Law Subjects: Defenses: Lack of Mental Responsibility.”
In Part I, I briefly outlined the formal examination process prior to presenting an insanity/lack of mental responsibility defense. Now here is some information on the “law” or legal standard for an insanity defense. This is the defense that Major Hasan and his lawyers are going to have to consider for his actions at Fort Hood. The outlines can be found in Rule for Courts-Martial (RCM) 916(k).
You can immediately see why PTSD might not be sufficient of a mental health issue to be a defense rather than mitigation, because:
The military (insanity) lack of mental responsibility defense is set out in several places relevant to Major Hasan and the events at Fort Hood. The first step that should be taken by a prudent convening authority in this case is to order a mental examination under R.C.M. 706, as soon as Major Hasan is medically fit. Major Hasan and his counsel could arrange for a private examination at the major’s own expense. But should they attempt to put on an insanity/lack of mental responsibility defense the prosecution will certainly persuade the military judge to order a government examination.
There are two reports: the first is a short form with the answers to the basic questions. The short form is given to the commander at Fort Hood, his legal advisor, the prosecution, and the military judge. A long and detailed report is given only to the defense. Thus the examination and a large part of the work is privileged. Mil. R. Evid. 302 sets out the privileged nature of the examination, and the exceptions. The defense becomes the gatekeeper of the report. Should the defense seek to put on a lack of mental responsibility (insanity) defense the report may well have to be disclosed. Should the examination find the major currently incompetent, then he’s off to the federal confinement facility at Butner, NC, under Article 76b, UCMJ. There is currently one service-member at Butner under Article 76b.
CNN Justice reports:
Toobin: Cabinet members may end up negotiating which legal system will try Army Maj. Nidal Malik Hasan, the suspect in last week’s mass shooting at Fort Hood in Texas, CNN senior legal analyst Jeffrey Toobin said Tuesday.
CNN: Would the charges be the same in either case?
Court-Martial Trial Practice Blog