Fort Hood shooting: Judge nixes Nidal Hasan defense strategy. What now?

Army Maj. Nidal Hasan cannot use the defense that he acted to protect Taliban leaders from US soldiers deploying to Afghanistan, a military judge ruled Friday. His challenge now is to come up with another explanation to argue at his court-martial.

A military judge overseeing the court-martial of Maj. Nidal Hasan ruled Friday that the Army psychiatrist cannot argue in court that he killed 13 soldiers at Fort Hood in defense of Taliban leaders in Afghanistan, including leader Mullah Omar.

Hasan’s decision to forego his court-appointed Army lawyers and forge his own defense has slowed the proceedings, more than they already had been. Questions that have previously arisen include whether the American-born Muslim can wear a beard at trial, and whether his claim that he acted on behalf of the Taliban proved that the shootings were an act of Islamic fundamentalist terrorism rather than of “workplace violence,” as the Pentagon characterizes it. 

The legal gyrations speak to two key issues, military law experts say. For one, the Hasan case indicates that the inability of defendants in capital murder cases to simply plead guilty is a flaw in the military justice system. Given the judge's decision Friday, Hasan is left with no real defense, beyond insanity, to try to explain his attack on the Fort Hood soldier readiness center on Nov. 5, 2009, they note.

For another, the stakes are high for a military justice system that has seen every death-penalty sentence since 1962 overturned, says David Frakt, a law professor at the University of Pittsburgh who has worked as defense counsel at the US terrorist detention camp at Guantánamo Bay, Cuba.

“He has to put on a defense, and now when this particular defense has been rejected he still has to come up with some other totally fictitious defense,” says Mr. Frakt. Moreover, Army justice officials "are really trying to be extroardinarily careful with this case not to blow it, so that if they do get a death verdict they want it to stick. The easiest way to do that is to bend over backwards, to be accomodating to the defense, to remove potential appelate issues.”

The court has already had plenty of opportunities for potential missteps. Hasan’s trial began May 29, whereupon Hasan promptly fired his appointed Army attorneys and asked to defend himself. After finding Hasan mentally and physically competent to act as his own attorney, the judge had little option but to allow the tactic.

This week, the attorneys, who must remain on standby for any legal questions, had argued to the judge, Col. Tara Osborn, that it would be unethical for them to help Hasan present the so-called “defense of others” defense.

In her ruling Friday, Osborn said that no soldiers at the Texas Army post posed an immediate threat to anyone in Afghanistan, and that the legitimacy of the Afghanistan war is a nonissue in the trial, according to the Associated Press.

For many Americans, Hasan’s maneuverings are cause for frustration and anger. Delays and Hasan acting as his own attorney have inflicted additional anguish on survivors and victims’ families, some say.

“This is the worst kind of mockery of American military justice,” Dallas Morning News columnist Tod Robberson wrote earlier this month. “I can understand the judge’s decision to err on the side of caution and grant Hasan significant leeway, since every aspect of this case is likely to be reviewed on appeal. But sometimes, a judge has to exercise authority as the manager of the court and declare firmly: Enough is enough.”

The trial has become a showcase, Frakt says, of flaws in America's military justice system. Even the military commission designed to deal with terrorism suspects now allows those charged with terrorism to plead guilty when execution is a possibility.

Meanwhile, Judge Osborn’s troubles are far from over, as she will seek to keep appellate issues to a minimum while dealing with a defendant who many believe will try to use the court as a soapbox for jihad.

The judge “has got to figure out where to draw the line here, where to balance these issues,” says Aitan Goelman, a former Department of Justice terrorism prosecutor. “She wants to prevent this from turning into a complete circus without depriving a defendant who is accused of serious crimes of their right to defend themselves.”