Forming military law in the global war of terror

The military courthouse at Ft. Hood where Maj. Hasan's trial is held

Terrorists' plan, to grind them down

Ft. Hood – Col. Tara Osborn has collar-length blonde hair and a face that could be seen in any midwestern Scandinavian community. Her affect is as no-nonsense as a sub-zero Minneapolis morning when it comes to separating military lawyers quarreling over flyspecks in the pepper.

She hails from Ft. Bragg, North Carolina, appointed after the Army Court of Appeals dismissed the previous judge for his hard line stance on whether an accused mass murderer can stand trial with an unshaven face.

He can, said Judge Osborn, and she quickly ruled that military law precludes any possiblity of a plea bargain in favor of a life sentence to avoid execution.

In a particularly acrimonious dispute over one of the hundreds of motions filed in the case against the Army psychiatrist, Major Abu Nidal Malik Hasan, this one about an order to compel prosecutors to share audio recordings with defense lawyers, she gestured with a free hand and delivered the immortal, universal sentiment of the matron in charge, “It appeared to me from the motion that y'all weren't playing well together...”

The problem: A defense attorney had made the impassioned statement, “Anything the government has, we get!” He made reference to an issue of the Federal Rules of Criminal Evidence, “It's something you use to make a decision.”

Said the judge in the tone of voice she would likely use to settle a dispute between cross children arguing over a rubber dolly, a yellow lolly, or a little red wagon, “If you've got the transcript, the defense should have the transcript...I just want both sides to have access to the audio.” She finished in a sing-song, waving a hand airily in a gesture of dismissal, while she signed the order.

It's the kind of line that will render the macabre spectacle of a half-dozen beefy Army lawyers dressed in band box dress blues with gold stripes, badges, and buttons, made to appear small and vulnerable by the grinding reality of a judicial proceeding that has dragged on for three and a half years following a few minutes of unspeakable terror rendered on November 9, 2009.

Maj. Nidal Malik Hasan is no longer the chubby and rotund person with round cheeks who stared out of television screens. He is now a gaunt, balding and pale invalid with a bushy black beard and a misshapen body paralyzed from the sternum down.

A police officer's bullet halted the rampage during which he murdered 13 persons – one of them a pregnant woman – and wounded 32 others, damaging his spinal cord so severely, he is confined to a wheelchair he can no longer propel, dependent on attendants who care for him in isolation in an intensive care ward of the Bell County Jail at Belton to change his colostomy bag and urine collection container. He stares out of a sallow face with no expression other than boredom, or, perhaps, the long-term shock of a life lived in isolation.

He's going downhill fast, according to knowledgeable observers. “Back in March,” said Christopher Haug, the III Corps Media Chief, “he was able to wheel himself. Now, he can't.” 

Mr. Haug said it's unknown if the Major is wearing a bullet-proof vest during his court appearances, but a bulky olive drab sweater shows above the collar of his standard issue camouflage fatigues. “He's unable to regulate his body temperature,” explains Mr. Haug.

He shrugs, smiling in a bemused manner. “If he wins, he loses,” he says. His implication is clear. To beat the death penalty is a hollow victory for one so injured. The battle he carries to the fight is won by every delay and pettifogging halt to the wheels of justice.

A female television journalist later offered the private opinion that “All this could have been over and done with if they would just let the regular courts handle it, but, no. They want to do it this way, and the families of the victims have to suffer through it.” She looks like she wants to cry, straining to hold back tears in a perfectly formed face, her pretty looks and startling eyes strained by the pain of it all.

“All this is about is to make totally sure that there is no way an appeals court can overturn this case.” She looks as forlorn as she can be, even a little fearful. It gets rude in a war, and here is the evidence of it. Pretty women want to cry. Their faces show pain.

Later, a GI on escort duty – there seem to be dozens of them, both armed MP's and unarmed troopers attached to the public affairs office – says with a wry grin and a sidelong glance, “They should have wheeled this old boy in front of firing squad a long, long time ago, troop.” He winks.

Most men are merely sad. A GI in charge of security in the officer's club room set aside for journalists to view the proceedings on video says of the Soldier Readiness Center, where the attack took place. "They fenced all that in - years ago." Asked about the flower displays on the fence, he says, "All that's been there for years, now. Years."

Once the dispute over audio recordings is settled, the judge moves on to the weightier issue of witnesses, and how to compel them to testify.

Major Hasan's family members and fellow Islamic devotees from the Major's home near  the Washington, D.C., area are refusing to cooperate with the defense's summons.

Under the rules of criminal procedure, they are compelled to give interviews to prosecution attorneys before they appear to testify about the Major's state of mind, or his character in pre-sentencing proceedings. They want them subpoenaed, picked up U.S. Marshals, and transported to Ft. Hood by force, if necessary.

An exasperated chief prosecutor fairly shouted, in reference to a Mr. Abbas, one of the Major's key Islamic influences, “When we called Mr. Abbas, now, he doesn't speak English!” He explained that the FBI interviewed him 4 years ago and he spoke the nation's official language fluently at the time.

“This is a witness that we called, he answered in English, and as soon as he realized who it was, he switched to another language and said he can't understand us!”

The list of those who so object is long, and according to lawyers for both sides, the reluctant witnesses are influenced by Major Hasan's brother, an attorney who has instructed them they don't want to talk to government lawyers.

“It's a matriarchal society, and when they answer the phone, they answer in English, then hang up when they realize who's on the line.”

The debate became so strenuous at that point that the judge gestured for calm, saying “I only want to see one of you standing at a time...” She said their antics of bounding to their feet in strenuous group objections reminds her of “this merry-go-round.” It's a dialogue, she explained. “I talk to you; you talk to me.”

“Maybe you'd better re-do your synopsis,” she suggested to the lead defense counsel. Of 59 defense witnesses, prosecutors have questioned the merits of 45, and moved for the exclusion of 25 pre-sentencing witnesses the defense wishes to call to testify about the Major's character – chiefly because they can't fathom what they will say once they are on the witness stand.

The judge gave defense attorneys a week from Tuesday to prepare synopses as to the nature of the expected witness testimony. A further hearing will take place on May 9 before jury selection begins on May 29.

It's all about a state of mind, according to the defense strategy, that of a “persecuted” adherent to the Islamic faith.

The judge partially denied and partly ordered a motion to suppress evidence offered by a terrorism expert named Evan Kohlmann, who produced a motion picture titled “The Al Qaida Plan” for the Office of Military Commissions.

A lawyer trained at the University of Pennsylvania and Georgetown, he will be allowed to testify as to the definition of certain Arabic words and phrases – though he doesn't speak or read a word of Arabic - but not the state of mind of the Major.

Defense attorneys failed to prove his status as an expert in that area. He will be allowed to testify as to what Major Hasan meant when he corresponded in e-mails with the Imam Anwar al-Awlaki, who taught he and three of the operatives who carried out the 9/11 attacks on the twin towers. But he won't be allowed to testify as to his state of mind. He will also be allowed to say what Maj. Hasan meant when he shouted "Allahu Akbar," that God is great, but now why, exactly, he shouted those words. 

Both al-Awlaki, a U.S. citizen, and his 16-year-old son were killed in drone rocket attacks in Yemen this past fall.

Mr. Kohlmann has similarly testified in nearly a dozen federal cases of terrorism, including the attacks on the U.S.S. Cole and the attacks on U.S. Embassies by terrorists recruited and trained by Al Qaida.

He wrote a book on the subject, and one may view his motion picture by clicking on the panel below.

The feature-length YouTube presentation includes much information produced by Al Qaida and used to recruit and train their operatives, along with subtitles in English.

That part of the presentation begins after at the 11-minute mark, following an affidavit as to Mr. Kohlmann's bona fides and qualifications.

He is an expert on the fact that Islamic terrorists have turned the entire globe into a battle zone, the interior territory of the United States of America thus rendered a place of war.

Terrorist acts of war are to be handled by military tribunals, and not courts of law.

In a final note, Judge Tara Osborn ruled against a defense motion to suppress the evidence of the final words of pregnant female soldier cut down by one of Maj. Hasan's bullets.

The woman screamed, “My baby!” as the 5.7 x 28 millimeter round sliced into her flesh, ending her life and the life of her unborn child.

- The Legendary