Hasan gets death penalty, but execution years away

Fort Hood shooter convicted on all counts but unlikely to see the death chamber

In this courtroom sketch, Maj. Nidal Malik Hasan sits during his trial in Fort Hood, Texas. He was convicted Friday of killing 13 people and wounding more than 30 others at the Texas military base in November 2009.
Brigitte Woosley/AP

Maj. Nidal Hasan, the military psychiatrist found guilty last week of killing 13 people and wounding more than 30 others on a Texas military base nearly four years ago, was sentenced to death Wednesday.

The jury of senior military officers handed down the punishment after less than a week of deliberating, following a trial in which the American Muslim soldier never denied that he was the shooter and put up no defense.

Throughout the trial, Hasan, who has represented himself, offered no witnesses, did not testify, produced no closing arguments and remained silent during the sentencing stage.

While he sat in silence, lead prosecutor Col. Mike Mulligan described the stories of each of the 13 people Hasan shot dead.

"There's a price to be paid for the mass murder he perpetrated on 5 November -- for the lives he horrifically changed and for the pain and sorrow he wrought," Mulligan said.

"These murderous attacks left enormous carnage: 13 dead, eight widows. One widower. Twelve minor children without a father, 18 parents lost children. Thirty soldiers wounded. One civilian police officer. Their loss, each family -- tragic, difficult and different. For some, death was almost instantaneous. So quick, so lethal they never moved from their chair," Mulligan said.

Hasan has made no secret that he intended to attack American soldiers at home, claiming to protect Muslim lives in Afghanistan, where he was meant to deploy. Mulligan dismissed the notion that by giving Hasan the death penalty, the jury would be awarding him the marytrdom he is said to want.

"This is his debt to society. It is not a charitable act. He is not now and never will be a martyr. He is a criminal. He is a cold-blooded murderer. On 5 November, he did not leave this earth. He remained to pay a price.He remained to pay a debt. The debt he owes is his life,'' Mulligan said.

Hasan, paralyzed from the waist down by a shot that came during the attack on the medical center in Fort Hood in November 2009, appeared emotionless during the court proceeding. 

Despite the death penalty Hasan sought, the closest he will likely get to the execution chamber is the barracks at Fort Leavenworth, Kan., where five other soldiers on death row wait out their sentences.

The U.S. military hasn't executed anyone since 1961 and is unlikely to break that trend for an officer who called for his own death and failed to put up any kind of defense that would mitigate that.

"The military isn't big on executing people," says Lt. Col. Gary Solis, a retired Marine judge who served as a military lawyer before becoming a Navy judge. "Since the end of World War II, very few people have been executed," says Solis, whose military career spanned 26 years. "It's a complex story. It has to do with the Uniform Code of Military Justice."

The Uniform Code of Military Justice, or UCMJ, came into effect in 1950 and was modified when the U.S. Supreme Court invalidated the death penalty in the 1970s. In 1984, President Ronald Reagan signed an executive order reinstating the death penalty for the military and listing 11 aggravating factors that qualify defendants for death sentences. A recent amendment to the UCMJ offered the alternative punishment of life without the possibility of parole for crimes committed after 1997. For earlier crimes, troops serving life sentences might be eligible for parole after serving 10 years.

Other factors distinguish military trials from civilian ones:

The jury must be unanimous in both the verdict and the sentence. If no death penalty is being sought, a two-thirds majority is sufficient for a conviction.

The commanding general who convened the court-martial must approve the sentence and the conviction before it goes to higher courts for appeal or review. The commanding general can also commute the sentence if it is considered too harsh.

The president must sign the execution order before any convicted service member can be put to death.

'Propaganda opportunities'

There are five servicemen awaiting death sentences at Fort Leavenworth. Three of them have appeals pending in military courts.

"Those cases are reviewed and reviewed, and the sentence keeps getting knocked down from death to life without parole," Solis says. "I don't expect to see them executed anytime soon."

One of those on death row is Hasan Akbar, a Muslim U.S. soldier who attacked and killed fellow soldiers in Kuwait at the outset of the Iraq War in 2003. His case would have arrived on the desks of two presidents by now, and it continues to be tabled.

"Akbar was convicted in 2005," says Christopher Swift, an adjunct professor of national-security studies at Georgetown University and a fellow at the University of Virginia Law School's Center for National Security Law. "If this was Alabama, he'd be dead and buried by now. The fact that he's on death row doesn't mean he'll be executed."

Hasan's case will now go through two courts of automatic appeal, as well as a review by the commanding general who called the trial in the first place. At every point there is the possibility for appeal. Once all appeals are exhausted, the case will be taken to the president's desk. It is up to the sitting president to sign or to table the case for the next president, taking up even more time.

"(Hasan will) probably spend his life on death row because there's no incentive to do it," Swift says. "I haven't seen any indication that the Army posture is such that they want to expedite this one."

Yet Hasan's case is unprecedented, according to Eugene Fidell, a co-founder and former president of the National Institute of Military Justice and currently a visiting lecturer at Yale Law School.

"Taken the facts that we all understand as proven, he's murdered many people in a fratricidal way, brutally, and people who are entirely innocent. This is intolerable conduct," Fidell says. "It's the whole set of circumstances, and the whole set of circumstances is appalling."

It's "an open-and-shut case," he says. And one that could return executions to the U.S. military.

Hasan made no secret of his motivation in carrying out the attack and, according to some documents, told court mental-health evaluators that he wanted to become a martyr. Swift speculates that Hasan did not expect to survive the 2009 attack. "I don't think he expected law enforcement to act like law enforcement," he says. "He's using his trial to make up for the operation failure that he would go out in a blaze of glory."

Aside from all the legal reasons that an execution is unlikely, Swift says, are the policy reasons, and those are the issues Army leadership and the White House ultimately will have to contend with. "Executing him … suggests that someone who engages in this kind of self-mobilizing criminal act for terrorist motives can become a soldier for Islam, and it’s not something we want, creating propaganda opportunities," he says.

That Hasan was tried in Texas and not at Guantanamo Bay in Cuba for an act of terrorism is an indicator of how the court is considering the case. "It also really raises the issue of 'Do we charge people on the belief that informs their actions? Or do we charge people on the basis of the actions they undertake?'" Swift says. "That fight is a fight about how to define the adversary. It's not about how to define the crime."

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