How the Military Will Try Nidal Hasan

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A U.S. military courtroom

From the moment Major Nidal Malik Hasan was recognized as the alleged assailant in the killings of 13 soldiers at Fort Hood, Texas, a complex, keenly balanced legal process kicked in: the Uniform Code of Military Justice (UCMJ). The code demands both speed and balance, experts say, and sets up the process for a court-martial that would have the 39-year-old Army psychiatrist judged by a jury of his fellow officers not for what motivated him but simply for what he did.

Justice is likely to be speedy. The UCMJ has no provision for bail and the prosecution is required to bring its case to trial in 120 days. Hasan has probably already been notified of his rights under Article 12 of the UCMJ, which is similar to the Miranda warning given to civilians. Article 12, however, preceded Miranda by 11 years and is more restrictive.

Civilian police can communicate with suspects prior to reading them their Miranda rights, which usually is given as part of a custodial interrogation. But military investigators must advise suspects of their right to remain silent prior to any communication, even a chance or informal conversation, bedside or on the street, according to Scott L. Silliman, a retired military lawyer and head of the Duke University Law School Center on Ethics and National Security.

It is all part of the UCMJ's attempt to screen the process from undue influence. "The military is a hierarchical society," Silliman says, and so the rules of the UCMJ seek to protect the proceedings from any presumed or perceived command influence — including that of the President, who is at the very top of the chain of command. Once a suspect has been informed that he or she is under investigation, the 120-day clock starts ticking toward the trial. (The 120-day schedule may be extended any time the defense is granted a delay.)

Hasan's attorney, James P. Galligan, a retired Fort Hood military judge, has said he has instructed his client not to talk to investigators. Meanwhile, Silliman says, investigators are likely assembling evidence from a multitude of other sources to draw up a list of charges, which could include anything from capital murder to taking a gun to the base. Hasan also may face a noncapital charge of murdering an unborn child because one of the victims, Francheska Velez, was three months pregnant. Both sides will probably want to have Hasan undergo psychiatric evaluation, with the defense perhaps having an eye on mitigating any sentence. Galligan is unlikely to be able mount an insanity defense for his client because military law makes it difficult. It requires a finding of severe disability or defects that render the defendant incapable of discerning a wrongful act.

While the debate swirls about Hasan's motives, connections and communications, opting for a military trial avoids the legal mire of treason or terrorism charges. Military prosecutors will have a Dragnet view of the case — "just the facts" as Jack Webb, star of the television cop classic was fond of saying. Why he did it is not essential, Silliman says, although the defense may seek to cloud the picture with digressions into motivation. Prosecutors will focus on what the accused intended to do and how he allegedly did it: when he bought the gun, what he said to neighbors and how he acted on the morning of the crime. The jury will be composed of 12 of Hasan's fellow officers who will have to answer a narrower question: Did Major Nidal Malik Hasan murder 13 people and, if found guilty, how should he pay for his crimes?

There is little secrecy over evidence. The UCMJ's version of the civilian grand jury takes place early in the 120-day process and is much more open and balanced. In the hearing, the prosecution will lay out its prima facie case before a military judge, and the defense will have an opportunity to put in evidence and cross-examine witnesses. Out of that hearing, specific charges will be issued and recommended to an officer with the rank of general in Hasan's direct chain of command. That commanding general will decide on what charges will be made and where the trial will take place. All charges must be brought at once, Silliman says, unlike in the civilian system where prosecutors can pick and choose.

The last court-martial to hold the national attention was the 1971 trial of Lieut. William Calley. "It has been a very long time since a case has engaged the public nationwide for a sustained period," says Eugene R. Fidell, president of the National Institute of Military Justice who teaches military law at Yale. The charges that Calley directed the massacre of 104 Vietnamese villagers in 1968 fed the national debate over the war and his 1971 trial underlined the country's divisions. Politics intruded into the Calley case when Congress refused to release secret testimony about the incident. President Richard Nixon mitigated Calley's sentence over the objections of Secretary of Defense Melvin Laird. Freed by an appeals court after only 3½ years of military house arrest, Calley, who had been sentenced to a life term of hard labor for the premeditated murder of 22 villagers, only recently suggested some remorse.

Lessons have been learned since the Calley case, Silliman says, not the least of which is the danger of political intrusion and command influence. While members of Congress may enter the hot debate, President Barack Obama as Commander in Chief must be wary not to exert "unlawful command influence" in his pronouncements on the case, Silliman says, just as President George W. Bush and Administration officials in the chain of command were cautious in the Abu Ghraib cases. So far, Obama has not stepped over the line, Silliman says, by specifically naming Hasan. This is as close as the President has gotten: "For what he has done, we know that the killer will be met with justice — in this world, and the next," Obama declared during his speech on Nov. 9 at the Fort Hood memorial service. "We are a nation of laws whose commitment to justice is so enduring that we would treat a gunman and give him due process, just as surely as we will see that he pays for his crimes."