Nidal Hasan can represent himself at trial, raising specter of jihadist rants

Maj. Nidal Hasan, the Army psychiatrist accused of killing 13 people and wounding 32 others at Fort Hood, Texas, in 2009, will be allowed to represent himself at his trial, a military judge ruled on Monday.

Hasan made his request at a hearing last week, and the judge, Col. Tara Osborn, said she first needed to be sure he was physically able to perform the job. A psychiatric evaluation had already determined he was mentally competent to defend himself, but Hasan, who was shot in the attack, is paralyzed from the chest down, and his lawyers have said he has difficulty sitting for long periods. Jury selection is set to begin Wednesday, and the trial is slated to begin July 1. If convicted, Hasan faces the death penalty.

The judge had little choice but to allow Hasan's request after a doctor testified Monday that Hasan's paralysis won't have a significant impact, legal experts say. But the situation raises concerns for some. Will Hasan attempt to use the trial to advance a platform of jihad? What sort of defense will he be able to provide himself? And what does it mean for victims in the shooting, some of whom will now have to face a cross-examination by their alleged shooter, and many of whom are also concerned about their safety.

Hasan's trial invites comparisons with that of Zacarias Moussaoui, the would-be 9/11 hijacker who also represented himself at his trial and pleaded guilty to conspiring to kill US citizens. Mr. Moussaoui, who is currently serving a life sentence, used his defense to justify his actions, to pontificate against the United States, and at various times to threaten both the judge and jury. 

"I expect Hasan to follow that pattern," says Jeffrey Addicott, director of the Center for Terrorism Law at St. Mary's University School of Law in San Antonio.

There's no other reason for a defendant in a case like this to forgo counsel, he adds.

"Clearly when you represent yourself in a case of this nature, it's not because you’re trying to avoid the death penalty or get the panel to agree you’re not guilty," says Professor Addicott. "If you’re motivated by radical Islam to murder, which he was, it's no surprise that he’s going to want to use this trial as a platform to advance radical jihad.... He's hoping to inspire other would-be jihadists that are in our nation."

If Hasan does this, the judge can stop the proceedings, and will also, presumably, need to take time to explain to Hasan many of the rules. Osborn also ruled that Hasan's current attorneys will remain on the case as standby counsel.

One reason for that decision is to minimize the chance that there will be an error and a justification that could allow a conviction to be overturned on appeal, if it appears the judge didn't do enough to protect Hasan, says Richard Rosen, a professor at Texas Tech University School of Law in Lubbock and a retired colonel.

"You assume the standby counsel will try to step in if he does something that will prejudice him, but ultimately he’s conducting his own defense," says Professor Rosen. But, he adds, "there's no way you’ll be able to stop him from asking stupid questions or making stupid statements."

Hasan is probably capable of carrying out his own defense, says Rosen, though not nearly as effectively as a lawyer would be. "There are all sorts of dangers to representing himself," says Rosen. "Even a good lawyer would not represent himself in a criminal case."

The case has been a protracted one, and Hasan's defense team has already helped him win several victories, including getting the previous judge removed due to an appearance of bias, and successfully challenging that judge's attempts to have Hasan's beard forcibly removed prior to his trial.

Perhaps the group most agitated about the idea of Hasan representing himself at his trial are the victims in the shooting and their families.

Many of them, who already were prepared to face Hasan in the courtroom, now have to face the prospect of being directly cross-examined by their alleged shooter. Even more troubling, they're concerned they may have to turn over information to Hasan that he could then share with other people.

"Not to put too fine a point on it, but once again they’re in a position of having to depend on the government to defend them from Hasan, and we all know how that turned out last time," says Reed Rubinstein, a partner at Dinsmore & Shohl, a Washington law firm, who is representing more than 100 victims and family members in a federal lawsuit. The suit alleges that officials in the FBI and Army knew about Hasan's ties to Al Qaeda and radical Islam and did nothing about it, and later tried to muddy the facts by classifying the shooting as "workplace violence" rather than terrorism.

It's possible the government will restrict what kind of information he'll have access to and who he can talk to, says Mr. Rubinstein, but as far as he knows, no one has spoken with the victims about it yet.

"Put yourself in their position. It would be disconcerting to say the least," Rubinstein says. "That said, they’re still going to testify. A couple of them have very strongly said they want to confront him and stand up to him and aren’t about to let him win. It's what you’d expect from a soldier."