Nidal Hasan wants to be a martyr, and there is little to stop him

The Army psychiatrist who stands accused of murdering 13 people and wounding 32 others in a November 2009 shooting spree at Fort Hood, Texas, has declined legal representation, and he does not appear to want to question any of the witnesses called to testify against him. He admitted his role in the killings in his opening statement at his military court martial on Tuesday and cited common cause with mujahedeen -- the Arabic word for a person who strives or fights in the name of Islam -- saying, "We are trying to establish the perfect religion."

"The evidence will clearly show that I am the shooter," Maj. Nidal Hasan told the panel of 13 senior officers serving as his jury.

Geoffrey Corn, a professor at the South Texas College of Law and a former judge advocate general, said it is virtually unheard of for a defendant in a capital court martial to represent himself, much less admit guilt in a case that carries the death penalty. But Col. Tara Osborn, the presiding judge, seems inclined to let Hasan proceed.

"I think his goal is to keep this case alive because he wants to use it as an opportunity to articulate why he believes what he did was right," Corn said. "He just wants to get convicted so he can get to the sentencing [hearing], so he can talk about why he did it."

Hasan already made one attempt to discuss his motivations: He tried to raise the argument that he had killed his colleagues to protect fellow Muslims endangered by American military action. He was referring specifically to the Taliban in Afghanistan, where he was set to deploy.

Osborn blocked Hasan's attempt at raising the defense, but Corn said Hasan probably would be allowed to discuss it at length if he is found guilty and the trial moves to a sentencing hearing. That hearing would determine whether he should receive life in prison or a death sentence, the only two options for a defendant convicted of premeditated murder.

But though Hasan's radical religious justification for his acts has yet to figure into the trial proceedings, it has provided much of the fuel for the public anger that has at times surrounded the case. Some conservatives have latched onto evidence of his jihadist convictions as reason for Hasan to be charged with terrorism and have excoriated President Barack Obama's administration for what they see as its lukewarm response, including a characterization of the killings by the Department of Defense as workplace violence.

The only obstacle between Hasan and his apparent goal of a death sentence may be the Army's own complicated legal system, which keeps capital cases wrapped up in appeals. Though President Ronald Reagan reinstated the death penalty by executive order in 1984, no soldier has been executed since 1961, when Army Pvt. John Bennett was hanged after being convicted of rape and attempted murder. Five soldiers remain on death row, and the man there the longest -- Ronald Gray, a former Army specialist convicted of two premeditated murders, an attempted murder and three rapes -- has been waiting for 25 years.

On Friday, Osborn allowed all but one of Hasan's standby lawyers to leave the trial to prepare an appeal of her previous order forcing them to remain on his case. The lawyers, led by Lt. Col. Kris Poppe, had been appointed by the judge to assist Hasan on trial procedure. They want to be released, arguing that Hasan is trying to secure his own death, what they deem a "repugnant" strategy. Poppe, who remains at the trial, spent most of the proceedings on Thursday listening to prosecution witnesses as Hasan sat with only a Post-It pad in front of him, taking no notes and making no challenges, The Associated Press reported.

"I think the prosecution fully expects him to get up on the witness stand [during the sentencing hearing], take an oath, and say, 'I think what I did was right,'" Corn said. "That's why Col. Poppe is so frustrated, because he knows that the client that he is responsible for advising is making mortally catastrophic decisions, and if you're an ardent opponent of the death penalty and you have to sit there, it's gotta be torture."

Though Hasan's choice to represent himself with attorneys on standby creates the potential that the military appeals court will find that he did not have adequate representation, one former Fort Hood judge advocate says he has seen very little in the proceedings that could affect the prosecution's case on appeal.

Richard Rosen, now a Texas Tech University School of Law professor who is observing the trial, said he believes Hasan has passed up good opportunities to challenge some of the witness testimony on hearsay grounds but that such mistakes would not be decisive. The prosecution also has a wealth of evidence against Hasan, including more than 100 witnesses, many of whom will identify him, as well as his gun and the bullet fragments that will be traced to it. More than 140 bullet casings were recovered from the scene.

"I've never seen anything quite this gruesome," Rosen said of the prosecution's evidence.

Despite the unusual circumstances of Hasan's case, public attention seemed to have dissipated as the deadly shooting slipped from the headlines. But as his court martial began and Hasan's personal motives were no longer up for debate, anger -- most of it from conservative corners -- has centered on the Obama administration's reluctance to call the murders terrorism.

Conservative stalwarts such as Pamela Geller and Michelle Malkin picked up the call as proceedings opened earlier this week: Geller labeled Obama "despicable" in a Sunday blog post, and Malkin complained on Tuesday that the nation had forgotten the "terrorist mass murder" by Hasan, a "deranged Islamist radical."

Hasan's history of radical religiosity became clearer in the years after the shooting, as investigators uncovered reams of electronic evidence and testimonies from those who knew him. Though he was born in the United States to parents who emigrated from a Palestinian town near Jerusalem, he has said he turned his two handguns on his colleagues in order to defend fellow Muslims in countries the United States had invaded.

In one 50-slide PowerPoint presentation he made in 2007 -- "The Koranic World View As It Relates to Muslims in the U.S. Military" -- Hasan wrote that "[f]ighting to establish an Islamic State to please God, even by force, is condoned by the Islam" and that "Muslim Soldiers should not serve in any capacity that renders them at risk to hurting/killing believers unjustly -- will vary!"

The following year, he corresponded with al-Qaeda-associated preacher Anwar al-Awlaki, a U.S. citizen who had moved to Yemen from his mosque in Virginia to continue his evangelizing, according to investigations that followed the Fort Hood shootings. Awlaki was later killed in a U.S drone missile strike, becoming the first American to be designated as a terrorist and killed extra-judicially on Obama's orders.

"The evidence presented with this trial will show one side. The evidence will also show that I was on the wrong side," Hasan said during his opening statement. "I then switched sides. We mujahedeen are trying to establish the perfect religion. I apologize for the mistakes I made in this endeavor."

The close ties, drawn by Hasan himself, between Islam and the Fort Hood shootings have served as fodder for conservative critics who see a rising threat of "Islamization" and jihadist violence in the U.S. and want the slayings declared a terrorist act. Many victims of the attack and their relatives have filed a lawsuit in federal district court in Washington, D.C., requesting that the DOD declare the slayings an act of terrorism -- likely entitling victims to Purple Hearts and different benefits -- and asking for roughly $750 million in damages related to the military's failure to spot Hasan's radicalism and violent intent.

"The whole Hasan and terrorism brouhaha is mainly right-wing fear-mongering to further demonize Muslims," said Morris Davis, an assistant professor at the Howard University School of Law and retired colonel who once served as chief prosecutor at Guantanamo Bay.

The Uniform Code of Military Justice, under which Hasan is being court martialed, contains no charge for terrorism, meaning that Hasan either would have had to be tried in a civilian federal district court to face that allegation, or military prosecutors would have had to seek a novel approach to invoke it.

But military prosecutors in 2009 agreed with their counterparts in the Justice Department that there was no evidence showing Hasan had conspired with others to commit the attack and declined to bring terrorism into the case.

Hasan's charges are not without precedent. In 2003, Sgt. Hasan Akbar, who converted to Islam as an adult, threw hand grenades and fired his rifle at fellow American troops at Camp Pennsylvania in Kuwait during the beginning of the invasion of Iraq, killing two people and wounding 14. He explained his actions by saying he wanted to prevent his comrades from killing Muslims, and entries from his diary from years earlier mentioned his desire to "destroy America." His lawyers argued that he suffered from mental illness.

Akbar was found guilty and sentenced to death after facing court martial charges of premeditated murder and attempted premeditated murder -- the same allegations facing Hasan. Akbar's death sentence is on appeal.

"[Major] Hasan, just like the other soldiers who killed their fellow soldiers, is charged with multiple murders and faces the death penalty," Davis said. "That's the way it should be and to argue otherwise is just political posturing that has nothing to do with military justice."

A terrorism case likely would have moved much faster, said Eugene Fidell, a visiting lecturer at Yale Law School and expert in military justice. Fidell said that the case would not have been weighed down as much by disputes such as whether Hasan needed to shave his beard in line with military regulations.

But Corn pointed to the high-profile prosecution of Dzhokhar Tsarnaev, one of the two brothers accused of bombing the Boston Marathon in April, killing three people and wounding 264. Tsarnaev, though seemingly motivated by hatred of U.S. policies, is charged with using a weapon of mass destruction and "malicious destruction of property resulting in death."

"Just because you engage in an act of terrorism doesn't mean the crime you should be charged with should be designated as terrorism," Corn said. "The real issue of this case is the gravity of human suffering."