The Future Life of Major Hasan

Legally, 'we're in for a long haul'
Case against soldier accused in mass shooting faces many hurdles

By LYNSI BURTON and STEWART M. POWELL - WASHINGTON BUREAU

WASHINGTON — As Maj. Nidal Malik Hasan lay under heavy guard at Fort Sam Houston on Sunday, military prosecutors and the accused Fort Hood gunman's family were preparing for what could be a long and complicated legal proceeding.

Military justice experts told the Houston Chronicle that Hasan, if he recovers, could face the death penalty in a military court-martial — unless civilian prosecutors conclude that he was part of a terrorist plot that would justify moving his case into federal criminal courts under U.S. anti-terrorism laws.

But veterans of the military justice system say that any case against Hasan could take many months and could be delayed by medical assessments of the Army officer's physical and mental health. And even if a death sentence is handed down, the military justice system's lengthy appeals process has effectively thwarted all executions since 1961.

“We're in for a long haul,” said Scott L. Silliman, a retired career JAG officer in the Air Force who now directs Duke University Law School's Center on Ethics and National Security.

The Army “will not try to move the case too quickly because that might build in a problem down the road,” he added. “They're doing all their spade work. There's not a rush.”

As the probe proceeds, the case against Hasan will be complicated by questions of whether he was sane at the time of the shootings or if he can get a fair trial at Fort Hood.

Indeed, prominent figures – from his base commander, Lt. Gen. Robert Cone, to his commander-in-chief, President Barack Obama – have publicly identified him as the alleged assailant. On Sunday, Army Chief of Staff George Casey said on ABC's This Week program that Army investigators currently believe that Maj. Hasan was the lone gunman.

“That is where they are now,” Casey said, before adding, “We need to let the investigation take its course.”

Hasan has not yet been charged with any crime in either the civilian or military justice systems. Richard Durbin, chief of the criminal section for the U.S. Attorney's Office in San Antonio, declined comment on any potential charges Sunday, declaring, “I'm not going to go there.”

How it might play out
But military justice experts say they have no doubt that charges are coming amid massive eyewitness evidence that Hasan was the man who opened fire inside Fort Hood last Thursday afternoon.

“That he was the perpetrator doesn't seem to be much in doubt,” said Gene Fidell, president of the National Institute of Military Justice and a military law professor at Yale Law School. “The question seems to be the scope of the offense and what defense might be available.”

Because the case is so highly publicized, experts say the military is likely to offer his defense wide latitude.

“Whatever happens, the process will be transparent, the process will be fair, and this guy will get as good defense representation as anyone could hope for,” said Geoff Corn, military law professor at South Texas College of Law.

What's likely to occur is a court-martial under Article 2 of the Uniform Code of Military Justice, to punish offenses allegedly committed by a man wearing a U.S. military uniform against other military personnel on a military base. The Army's Criminal Investigation Division is responsible for recommending charges, prompting the military equivalent of a grand jury, known as an Article 32 hearing, where both prosecutors and defense can present evidence.

Those results would be reviewed by base commander Cone, who would decide whether to convene a court-martial. The 12-person jury would be composed of officers higher in rank than Hasan – lieutenant colonels and above.

Under the rules of military justice, Hasan is permitted to have a lawyer present during interrogation, but former military lawyers say that the Army psychiatrist cannot be questioned by Army Criminal Investigation Division agents until doctors formally deem him medically and mentally able.

“A doctor would have to certify that the suspect is competent to decide whether to remain silent, speak to investigators or ask for a lawyer,” Silliman said. “He would have to be able to make an intelligent and informed decision before waiving any of his rights.”

Family's request
Hasan's family is demanding that he be allowed to consult with a lawyer before speaking to investigators or mental health professionals. In a statement released to the news media on Saturday, Hasan's brother Eyad declared that his family has “faith in our legal system and that my brother will be treated fairly.”

“We hope that the relevant authorities will provide us with information on my brother's condition and that he be afforded his right to an attorney the moment he regains consciousness,” Eyad Hasan wrote.

The family declined to elaborate on Sunday.

Lawyers who have been involved in past court-martial cases say it is likely that any trial of Hasan would be moved from the site of the shootings because the large number of victims and the pretrial climate at the base make a fair trial problematic.

“If I were a betting person, I would expect the venue would be changed,” Fidell said. “That's not to say it would make much difference (where the case is tried). It's going to be a challenge wherever this trial takes place.”

One military justice expert also predicted that an insanity defense is unlikely. Silliman said the standard for an insanity defense under the Uniform Code of Military Justice is that the suspect “cannot comprehend the wrongfulness of his actions.”

Post-traumatic stress disorder alone “does not equate to insanity,” Silliman said. “It is a matter to be considered for lessening punishment, but it is not a defense.”

While the death penalty remains an option for military prosecutors, it is carried out much less frequently in the Armed Forces than in civilian settings.

Just 15 of 47 service members charged with capital crimes in recent decades have received a death sentence, and none has been executed since 1961.

Also contributing to this report were Richard S. Dunham in Washington and Vianna Davila in San Antonio.

lynsi.burton@chron.com

stewart.powell@chron.com