Ft. Hood Trial: An Inside Look at Nidal Hasan's "Defense of Others" Strategy

On November 5, 2009, Nidal Hasan, a major in the U.S. Army based at Fort Hood, Texas, opened fire on his fellow soldiers, killing 12 of them as well as a civilian, and wounding 29 other people. He was wounded himself, hospitalized, and charged under the Uniform Code of Military Justice with 13 counts of premeditated murder, an offense that makes him eligible for the death penalty if convicted.

News broke on June 5 that Hasan, who plans to represent himself in court, had asked for a delay of several months so that he can prepare his defense. He plans to argue that he acted in “defense of others,” specifically the leaders and members of the Taliban whom he felt were being wrongfully targeted by the U.S. military. If the court accepts this argument, it could lead to Hasan being considered an “unlawful enemy combatant” and being removed from the jurisdiction of the UCMJ (which may be what he intends).

Shortly after the shooting, several figures, including retired Army General Barry McCaffrey and U.S. Senator Joseph Lieberman, described the event as a terrorist attack. It also emerged that Hasan had been in contact with Anwar al-Awlaki, the American-born cleric who, from his hiding place in Yemen, helped inspire a number of Islamist terrorist attacks on Americans (until he himself was killed in a U.S. drone strike in 2011). This may serve as evidence, in some people’s eyes, that he was indeed a terrorist, and should not have been considered a serving soldier who took a dramatically wrong turn.

So should Hasan be considered an unlawful enemy combatant, rather than as a rogue soldier to be tried under the UCMJ?

Had Hasan somehow escaped to Pakistan or Somalia or Yemen, and there traded his Army uniform for civilian clothes, the U.S. would most likely have deemed it just as justifiable to target him for killing as it was for them to target Awlaki himself. And the government would have been right to do so. But since this was not the case (since Hasan was still considered a soldier at the point he pulled the trigger), and because the attack was committed on American soil, it makes sense to try him not as an unlawful combatant, but under the UCMJ.

Hasan’s case is in some ways similar to that of Dzhokhar Tsarnaev, the surviving member of the duo who carried out the Boston Marathon bombing in April. Although in that case there have also been calls to label the defendant an “enemy combatant,” justice will best be served by trying Tsarnaev in a domestic, civilian court, as he and his brother were civilians at the time they carried out their attack. Hasan was a U.S. soldier, albeit one with a warped sense of duty to protect others, when he opened fire, and thus a regular military trial is the way to go.

In the aftermath of a great tragedy, it is easy (and understandable) for emotions to lead people, including important public figures, to call for unwise things to be done. In the case of the Fort Hood tragedy, an understandable desire for revenge led to calls to label Hasan an unlawful combatant. But if the justice system were to do that, it would be playing into Hasan’s hands. We must not allow a mass murderer to bend the justice system to his will.