The Difference between Motive and Crime: The Court-Martial of Major Nidal Hasan

by Geoffrey S. Corn

The military trial of Major Nidal Hasan has finally resulted in a verdict. Guilty of 13 counts (specifications in military parlance) of capital premeditated murder, and 32 counts of attempted premeditated murder, his case now proceeds to the penalty phase, where the same 13 jurors will decide whether to adjudge the death penalty. This requires a unanimous vote. Should this unanimity not be reached, Hasan is subject to one of the only mandatory minimum sentences imposed by military law: life in prison, although the military jury will then decide whether he shall be eligible for parole (a ¾ majority is required to deny him such eligibility).

This trial, or General Court-Martial, has been filled with complex legal issues. These have ranged from removal of the originally detailed military judge because of a perceived lack of impartiality due to his battle with Hasan over Hasan’s refusal to shave his beard, to Hasan’s battle with his own detailed defense counsel over his decision to represent himself and his trial strategy. All of these legal issues have been addressed by the military justice system, and none of them altered the inevitable march towards accountability.

Many observers, however, believe that perhaps the most important issue related to the massacre remains unresolved: why wasn’t Hasan charged and treated by the United States as a terrorist? These observers range from members of the public to senior national politicians. Many of them have insisted that the government unjustifiably refused to label Hasan as a terrorist, and in so doing diluted the significance of the legal response to his heinous misconduct.

This demand that Hasan be designated a terrorist and tried as such has never had significant merit. While it was clear from early in the investigation of the massacre that Hasan was in fact motivated by his radical jihadist beliefs, the evidence never supported such a designation, and pursuing such a criminal charge would have been foolish under the circumstances. Being motivated by such a philosophy does not justify the designation as an agent of an international terrorist group, or more specifically as a “member” of an enemy belligerent group, namely al Qaeda or the Taliban. As for the decision to limit the charges to well established military crimes and forgo a charge of terrorism, it reflected an absolutely logical tactical and strategic prosecutorial vision in order to maximize the likelihood of achieving justice, which in this case was subjecting Major Hasan to a genuine risk of capital punishment.

Indeed, the charging decision is almost beyond legitimate criticism. Why wasn’t Major Hasan charged with a terrorism offense? First, the Uniform Code of Military Justice does not include a terrorism offense. Second, while the UCMJ does provide a mechanism for incorporating federal criminal offenses into a military charge (which is how PFC Bradley Manning was charged with a violation of the federal Espionage Act), this is a relatively unusual practice done only when the UCMJ does not provide a viable offense for addressing a service-member’s misconduct. Furthermore, this provision of the UCMJ only allows incorporation of non-capital offenses. Thus, even had the prosecutors incorporated a federal terrorism offense into the military charges against Hasan, it would have still been necessary to charge premeditated murder in violation of the UCMJ in order to seek the death penalty.

Finally, and perhaps most importantly, charging Hasan with a federal terrorism offense would have been a monumental tactical and strategic blunder. First, as noted above, such a charge would have been pragmatically superfluous because a murder charge in violation of the UCMJ would have still been necessary to pursue the death penalty. Second, a terrorism charge would have injected unnecessary complexity into the prosecution, potentially confusing the logical singular focus on the murder and attempted murder allegations. Finally, because no service-member has ever been prosecuted for such an incorporated offense, doing so, even if conviction seemed likely, would have been strategic folly, as this novel charging concept would have been a lightning rod for appellate scrutiny. No prosecutor seeks to make new law with high profile cases, and that is exactly what such a charge would have done, jeopardizing the finality of the trial outcome. Avoiding such complexity by restricting the charges to the tried and true military offenses of murder and attempted murder was therefore an exceptionally wise exercise of prosecutorial discretion.

But did this charging decision somehow dilute the true nature of Hasan’s heinous actions? The answer highlights the critical distinction between Hasan’s motive and Hasan’s crimes. Neither the prosecutors nor the Commanding General who sent the case to trial by General Court-Martial ever denied Hasan’s terrorist related motive. In fact, the prosecution sought from the outset of the case to present evidence of his terrorist related motive to establish the requisite legal elements of premeditation and intent to kill. And there is certainly no dispute that Hasan terrorized his victims when he stood up in that crowded building and began firing hundreds of rounds of high velocity ammunition and proceeded to hunt and assassinate American soldiers. Thus, while he was indeed motivated by a terrorist agenda, his crimes were premeditated murder and attempted murder. 

Finally, many have questioned why Hasan was not “designated” a terrorist? What exactly this means is somewhat cryptic, but ostensibly some believe that Hasan was an “enemy belligerent,” associated with an international terrorist group engaged in an armed conflict with the United States. As a result, they believe Hasan’s actions amounted to acts of hostility against U.S. soldiers by an enemy operative. Proponents of this view often cite the email exchanges between Hasan and Anwar al-Alawki, the U.S. citizen subsequently killed by a drone strike based on the determination that he was a senior al Qaeda operational leader. These emails, it is asserted, must establish Hasan’s attack was an act of hostility by an enemy force engaged in an ongoing armed conflict with the United States. Thus, Hasan was an international terrorist.

This theory is simply feeble, and highlights the difference between an act of domestic crime committed by a lone wolf who is motivated by al Qaeda’s terrorist agenda, and an operative of that group. Only those who fall within the latter category may legitimately be characterized as enemy belligerents, and it is the subordinate relationship to al Qaeda operational leadership that justifies this designation and the accordant conclusion that a domestic attack was an act of international terrorism. Nothing in the emails between Hasan and al-Alawki support this conclusion. These emails, which are publically available and included in the Webster Report on the FBI’s role in the Hasan incident, demonstrate the exact opposite: the absence of any type of operational relationship between Hasan and al Alawki. At most, they reveal that Hasan was seeking some connection to al-Alawki to test some of his views on religious obligation, but al-Alakwi certainly did not in any way direct any of Hasan’s subsequent actions. In fact, those emails are totally benign, and one must wonder what al-Alawki thought when a U.S. Army Major contacted him from the U.S. via email. It is unlikely he perceived it as an opportunity to recruit a foot soldier, and more likely wondered if it was a poorly conceived setup. Ultimately, all these emails show is that Hasan was subjectively gravitating towards the radical jihadist philosophy that undergirds al Qaeda, but that he was in no way an agent of that organization.

Hasan is facing a day of legal reckoning for the crimes he committed: premeditated murder and attempted murder. His act of immense depravity and cruelty justifies subjecting him to the maximum sanction authorized by Congress for individuals subject to our military law, and there is a high probably that sanction will be adjudged. This process has in no way diminished the gravity of his crimes or the invalidity of his motive. Instead, by subjecting him to established legal process, and providing him the extensive process all criminal defendants – even those motivated by such an illicit philosophy – are due, our nation has made, in the compelling words of Justice Jackson as he stood before the Nuremberg Tribunal to give his opening statement – “one of the most significant tributes that Power has ever paid to Reason.”

Geoffrey S. Corn is a Professor of Law and Presidential Research Professor at the South Texas College of Law where he teaches National Security Law, The Law of Armed Conflict, Criminal Law, Criminal Procedure, Comparative Terrorism Law, International Law, Ethics for Prosecutors, and Military Law for Civilian Practitioners.