Alleged shooter Major Malik Hasan

Alleged shooter Major Malik Hasan

The New York Times reports that alleged Fort Hood shooter Major Nidal Malik Hasan will have a military trial:

The officials said the Departments of Defense and Justice had decided Major Hasan would be prosecuted in a military court, an indication that investigators believe he acted alone. Government lawyers had said his case might be tried in civilian court if he were believed to have conspired with nonmilitary defendants.

It’s also reported that Hasan’s name turned up in connection with a previous anti-terror investigation, and that some of his conversations were monitored:

Intelligence agencies intercepted communications last year and this year between the military psychiatrist accused of shooting to death 13 people at Fort Hood, Tex., and a radical cleric in Yemen known for his incendiary anti-American teachings.

But the federal authorities dropped an inquiry into the matter after deciding that the messages from the psychiatrist, Maj. Nidal Malik Hasan, did not suggest any threat of violence and concluding that no further action was warranted, government officials said Monday.

Major Hasan’s 10 to 20 messages to Anwar al-Awlaki, once a spiritual leader at a mosque in suburban Virginia where Major Hasan worshiped, indicate that the troubled military psychiatrist came to the attention of the authorities long before last Thursday’s shooting rampage at Fort Hood, but that the authorities left him in his post.

Counterterrorism and military officials said Monday night that the communications, first intercepted last December as part of an unrelated investigation, were consistent with a research project the psychiatrist was then conducting at Walter Reed Army Medical Center in Washington on post-traumatic stress disorder.

In a civilian criminal trial, the prosecution may circumscribe and control what information comes out during testimony by forgoing some charges. It is a difficult choice not to charge egregious conduct, but it may be a necessary trade-off to protect an ongoing investigation. However things are very different in military criminal cases.

In the interest of full disclosure, I am admitted to practice in the Court of Military Justice and in connection therewith did self study the Uniform Code of Military Justice (UCMJ). I have NEVER tried a Judge Advocate General (JAG) case and do not pretend to be expert in the UCMJ, at all.

However, I do know enough to point out that unlike civilian criminal trials, cases brought under the UCMJ provide a much higher level of discovery rights to the defendant than do civilian criminal cases. In JAG trials, defendants get to depose the witnesses. Yep.

Imagine the howling that would go on if a defendant in a regular criminal trial wanted to take the deposition of the cops who investigated the case. The judge would get a hernia from laughing so hard.

Whatever you may think about the lack of a jury as civilians may understand them, the UCMJ does provide the defendant with significant legal rights not available in the civilian legal system. Not only does the defendant have the right to depose witnesses:

(a) At any time after charges have been signed as provided in section 830 of this title (article 30), any party may take oral or written depositions unless the military judge or court-martial without a military judge hearing the case or, if the case is not being heard, an attorney competent to convene a court-martial for the trial of those charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such authority may designate commissioned officers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness.

(b) The party at whose instance a deposition is to be taken shall give to every other party reasonable written notice of the time and place for taking the deposition.

(c) Depositions may be taken before and authenticated by any military or civilian authorized by the laws of the United States or by the laws of the place where the deposition is taken to administer oaths.

If there is an investigation prior to charges and specifications being preferred against the military defendant, he can participate in that investigation and cross-examine witnesses and present evidence in the investigation:

(b) The accused shall be advised of the charges against him and of his right to be represented at that investigation as provided in section 838 of this title (article 38) and in regulations prescribed under that section. At that investigation full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation, and the investigation officer shall examine available witnesses requested by the accused. If the charges are forwarded after the investigation, they shall be accompanied by a statement of the substance of the testimony taken on both sides and a copy thereof shall be given to the accused.

Imagine a civilian defendant asking to have his lawyer cross-examine witnesses in the Grand Jury room. The poor herniated judge would bust his truss from all the additional laughter. (Stop making the judge laugh so hard.)

Why is this significant to you, dear readers? Because it means the defense may give us a glimpse into whatever the heck has been going on with some of those intercepts that NSA and CIA claim are keeping us safe from terrorists. You know, when he deposes those witnesses?