Testimony could affect victims' civil suit
Ft. Hood – Two weeks ago, when the trial started, the Army judge hearing the murder case against an Army psychiatrist accused of mass murder remarked for the record that she expected the proceedings could very well last for months.
As of Friday, the media types covering this event looked at each other in surprise and said, “It's almost over!” Truly, the rumor is racing around the “Starlite Room” of The Club at Ft. Hood, where reporters and correspondents file their copy under a glazed roof, that the Government has said privately they could rest their case on Tuesday.
That could be happy news, but as in all great questions, the light at the end of the tunnel is an unknown factor; it's either the light of a new day, or it's a fully loaded freight rushing headlong to a head-on collision.
Seasoned observers are predicting the latter in light of the odd behavior of the accused, a man who is on trial for a capital offense that could very well result in his execution, though that's a rare event in the annals of military justice.
The Army has denied the same benefits to families of the deceased and wounded victims of Hasan's attack as those awarded victims of an attack in combat. They are relegated to the role of victims of workplace violence. Should the government attorneys prosecuting the accused succeed in getting evidence of terrorism in his motives on the record during the case in chief or the sentencing phase, it could aid prosecution of a massive civil suit against the U.S., the Army, Hasan, and the estate of al Qaeda Imam Anwar al Awlaki, filed in U.S. District Court on the behalf of 180 victims and family members of those who were either killed, or wounded, on Nov. 5, 2009.
It was the deadliest terror attack on U.S. soil since the 9/11 attacks on the World Trade Center, the Pentagon and the suicide crash-landing of a jetliner aborted by passengers who attacked hijackers who had commandeered a commercial that was believed aimed at The White House.
Maj. Abu Nidal Malik Hasan has cross examined only one witness, the former chief of psychiatry at Ft. Hood's Darnall Army Medical Center, who evaluated his work as outstanding, worthy of a promotion, about an irrelevant matter beyond the scope of the prosecutor's direct examination. He asked about three enigmatic incidents to which another jihadist, Private Jason Naser Abdo of the 101st Airborne, referred at his pre-sentencing allocution hearing in U.S. District Court. Abdo received multiple consecutive life sentences in U.S. District Court for plotting to make an explosive device out of bb's, gunpowder, and a pressure cooker.
First, he wanted to know about an underage girl who was allegedly murdered by Coalition soldiers; secondly, he was interested in an alleged incident in which American forces dumped 50 gallons of gasoline in the drinking water of an Afghani well. Finally, he alleged, through the complicated reverse logic of a question, that medical staff had engaged in mercy killings in that far away war against the Taliban and al Qaeda.
When the lead prosecutor, Col. Michael Mulligan, objected, the judge, Col. Tara Osborn, sustained, and admonished Hasan, who is defending himself, that his questions must remain within the scope of the subject matter covered in direct examination.
Since then, he has only made only a few ineffectual objections outside the presence of the jurors, a statutory quorum of 13 senior field grade officers, most of them with considerable experience in the 10 years of the Global War On Terror in Afghanistan and Iraq. He has furthermore confined his objections to procedural matters.
This past Monday, he instructed his former attorney, a retired Army judge, Col. John Galligan, to release the full text of the sanity board investigation by three military doctors to the New York “Times” reporter, who is covering his trial. In that document, he avowed his role as a religious zealot making holy war on American forces, that he renounced his U.S. citizenship, and shredded his medical diploma before launching the deadly attack with a sophisticated handgun equipped with a laser sight that left 13 dead and more than 30 persons wounded.
He is charged with 13 specifications of premeditated murder and 32 specifications of attempted premeditated murder.
If convicted unanimously of multiple specifications of premeditated murder, he will receive a death sentence. If he is convicted on any or all counts of murder by a majority only, he will be automatically sentenced to life imprisonment.
That set off a considerable legal wrangle with the government prosecutors, who wished to have the material for the Government's use. Judge Osborn denied their motion, explaining that though Hasan relinquished his privilege when he released his psychiatric evaluation to the media, he retained it for legal purposes in his confrontation with the government. She admonished the prosecutors not to download, read press accounts, or make use of the material in the prosecution of their case in chief or in the sentencing phase.
How many witnesses Hasan will call, or if he will take the stand in his own behalf, is an unknown factor, but the fact that Hasan has not called a litigation specialist whom he retained to aid in his defense became the subject of a hurried hearing following witness testimony on Friday afternoon. The specialist will therefore not become subject to cross examination.
The issue involved privilege, as in the matter of the release of the sanity board investigation, and the judge is at pains to assure herself that the record does not reflect any sign of prejudice on the part of the government. Hasan, who has no legal training, is conducting his own defense. Death sentences receive an automatic appeal to higher military courts.
Prosecutors scrambled to find a way to get evidence of Hasan's sympathies with terrorist violence on the record.
Prosecutors made a motion to be allowed to use material relating to presentations Hasan made while attending a residency program for doctors trained in psychiatry at Walter Reed Army Medical Center.
There are videos of him asking his superiors about the role of conscientious objectors in a holy war in which the laws of God or the prophecy of the religion require the faithful to not take up arms against brother adherents to Islam.
During a Grand Rounds presentation made in 2007, Hasan “began making reference to conscientious objection,” according to an Army prosecutor, who argued that the Government should be allowed to bring in witnesses who will testify to that fact next week. He also mentioned the case of Sgt. Hasan Akbar of the 101st Airborne Division, an Islamic adherent who murdered two officers while they slept in a tent in Kuwait in 2003, the day before the invasion of Iraq began. He was convicted and sentenced to death, but is still awaiting execution pending a Supreme Court review and the President's signature on his death order.
“We believe there is evidence on the record that this was in fact a copy cat crime,” said the prosecutor. “He gave a presentation sympathetic to suicide bombers.” The judge denied the motion.
The judge also ruled that a third party involved in civil litigation that does not involve the case in chief against Hasan for murder may not have access to the same material, which is privileged unless he wants to waive his right to keep it confidential.
She questioned him at length about the matter.
“Has anyone forced you to relinquish your privilege in this matter?” He answered no. She then asked if anyone had threatened him, and he again replied that no one had.
“Understand, it's your right,” she reminded him. He replied he wishes to retain his privilege, and the hearing ended.
These are the highlights of the plaintiffs' suit filed on behalf of the victims. Staff Sergeant Shawn Manning is the principle party in the case, which names the Secretary of the Army, the Secretary of Defense and Director of the FBI as defendants, as well as Hasan and al Awlaki. The federal complaint alleges gross negligence and conspiracy on the part of the Government.
Manning et. al. v. McHugh et. al.
|Plaintiffs:||SHAWN NELSON MANNING , AUTUMN MANNING , AMANDA ASTORGA , EDUARDO CARAVEO , FERNANDO CARAVEO , ANGELA G. RIVERA-CARAVEO , JOSE A. CARAVEO , RAFAEL CARAVEO , MARIA ELENA GARCIA , CARMEN RUIZ , ISABEL ZUNIGA , DANIEL DECROW , RHONDA THOMPSON , CRISTIE M GREENE , KAREN E NOURSE , ROBERT H NOURSE , JENNIFER N. HUNT , GALE HUNT , GARY DEAN HUNT , ANGELA L. SMITH , JERILYN M KRUEGER , CASEY J KRUEGER , JESSICA KRUEGER BRYANT , CYNTHIA SEAGER , JOSEPH SEAGER , VERNON SEAGER , BARBARA B. PRUDHOMME , JUAN G. VELEZ , EILLEN RODGRIGUEZ , EVA M. WADDLE , MELISSA CZEMERDA , RENEE A. GAMBONI , TAWNYA PATTILLO , KRISTINA RIGHTWEISER , PRISCILLA J. SHEADER , DONNA WADDLE , MARGARET YAGGIE , SHOUA HER , CHOR XIONG , DAN BEE XIONG , JENNIE XIONG , KEVIN XIONG , MAXY XIONG , MEE XIONG , NELSON XIONG , PA NOU XIONG , PHILLIP XIONG , RICHARD XIONG , ROBERT XIONG and TIFFANY XIONG|
|Defendants:||JOHN McHUGH, LEON B. PANETTA, ROBERT MUELLER III, DOES 1-6, NIDAL HASAN and NASSER AL-AULAQI|
|Filed:||November 5, 2012|
|Court:||District Of Columbia District Court|
|Office:||Washington, DC Office|
|Presiding Judge:||Colleen Kollar-Kotelly|
|Nature of Suit:||Torts - Injury - Other Personal Injury|
|Cause:||28:1331 Fed. Question: Tort Action|
|Jurisdiction:||U.S. Government Defendant|
|Jury Demanded By:||None|