The US court martial will deal effectively with Major Nidal Hasan. Charging him with terrorism just panders to partisan politicking
The start, last week, of the court martial of Fort Hood shooter Major Nidal Hasan sparked an outcry over the fact Hasan is alleged to have only committed multiple acts of premeditated murder, rather than having engaged in "terrorism". Commentators wailed about the travesty on rightwing talkshows, and the National Review stared a petition demanding that Secretary of Defense Chuck Hagel designate the Fort Hood massacre an act of war and Major Hasan an enemy combatant who is not deserving of a military court-martial.
As is often the case when an event becomes political fodder, the argument over the symbolic weight of a label overshadows law and logic. That is clearly the case here. The massacre at Fort Hood is a tragedy as senseless as the slaughter of 20 innocent children and six adults at Sandy Hook elementary school. But rather than using a tragedy as an excuse to abandon principles that have served the United States well – from as far back as the 1770 trial of the British soldiers charged in the Boston Massacre– it is better to see it as an opportunity to reinforce what America purports to stand for: the rule of law.
Major Hasan is not the first member of the US armed forces to stand trial for deliberately killing fellow soldiers. In 2003, Sergeant Hasan Akbar threw grenades into the tents of other members of his unit on deployment in Kuwait, in advance of the invasion of Iraq. He claimed he was motivated to do so because the United States was killing Muslims. Two soldiers died and 14 others were wounded in the attack. Sergeant Akbar was convicted of premeditated murder and attempted premeditated murder in a court martial in 2005, and was sentenced to death.
Sergeant John Russell went on a shooting rampage at a military mental health clinic at Camp Liberty in Iraq, in 2009, killing five of his fellow soldiers. He was convicted of five counts of premeditated murder and sentenced to confinement for life without parole.
From a criminal culpability standpoint, there is no significant legal difference between Maj Hasan, Sgt Akbar or Sgt Russell: a deliberate decision to kill other service members without legal justification is premeditated murder under the Uniform Code of Military Justice (UCMJ), which has no defined crime that is specific to terrorism. Such a terrorism-specific law is not necessary, but if it were, then it would be up to Congress to amend Title 10 of the United States Code in order to add it to the UCMJ. Since Congress has not done so, it is wrong to suggest that the military or military lawyers deliberately dodged the term "terrorism" by charging Maj Hasan with premeditated murder.
In reality, there is nothing to be gained by trying to attach a terrorism label to the charges: Maj Hasan faces the death penalty for premeditated murder – would the executioner be instructed to use a duller, rustier needle if it was labeled terrorism murder instead?
A terrorism charge would also add to the prosecution's burden of proof in order to secure a conviction. If the issue of whether the act was committed as an act of terror is added to the mix, the prosecution would have an additional element to satisfy, one it must establish beyond a reasonable doubt. From a prosecution perspective, it is always preferable to keep a case as simple and straightforward as possible, rather than take on a heightened burden of proof that gains absolutely nothing in the end when it comes to sentencing.
Apart from Maj Hasan's potential criminal culpability, issues about criteria for award of the Purple Heart and military benefits to victims in the shooting are ones Congress has the authority to address, should it choose to do so. At first blush, that may sound appealing. But keep in mind that US drone and spying programs also had broad appeals – until Americans began to realize they, too, could be in the crosshairs. Tinkering with the law and how terrorism is defined could have unintended consequences that extend beyond simply doing a good deed for the Fort Hood victims and their families.
The fundamental strategic aim of terrorism is to leverage fear to produce a change in policy or behavior – and too often since 9/11, it seems that aim was met. Instead of a partisan fight over relabelling what Major Hasan did at Fort Hood, America should adhere to its strengths and not bend to fear and prejudice.
The United States has a military justice system that has proven it can deal effectively with the brutality of troops who kill troops. Let it work.
